author: Justice Lews.

text:
    Ella H. Tinkoff et al., Appellants, v. Paul Korshak et al., Appellees.
    Gen. No. 43,397.

      opinion filed June 26, 1946;
    rehearing denied September 18, 1946; released for publication September 19, 1946.
    Ella H. Tinkoff and Paysoff Tinkoff, pro se; Max M. Korshak, for appellees.
   Opinion by

Justice Lews.

Not to be published in full.


source: Caselaw Access Project

author: Presiding Justice Kiley.

license: Public Domain

text:
    Artie Lampkin et al., Appellees, v. Thomas J. Friel et al., Trading as Chicago Surface Lines, Appellants.
    Gen. No. 43,475.
    opinion filed June 26, 1946;
    released for publication August 19, 1946.
    Frank L. Kriete, Thomas M. Morris, Arthur J. Donovan and Chester A. Wynne, for appellants; William J. Flaherty, of counsel; Lester E. Williams and Max L. Rasoff, for appellees.
   Opinion by

Presiding Justice Kiley.

Not to be published in full.


text:
    Village of Forest Park, Appellant, v. Tom Collis, Jr., et al., Appellees.
    Gen. No. 43,529.

      opinion filed June 26, 1946;
    released for publication August 19, 1946.
    Leslie J. Smith, Jr., for appellant; Alfred F. Rueben and August J. Calcagno, for appellees; Arthur A. Sullivan and McKinley & Price, for certain appellees; Arthur A. Sullivan, of counsel; Wolff, Keane & Gomberg and William P. Smith, for certain other appellee; Oscar M. Wolff and William P. Smith, of counsel.
   Opinion by

Presiding Justice Kiley.

Not to be published in full.


text:
    Lillian Ranz, Appellee, v. Col. W. W. Yaschenko and 181 East Lake Shore Drive Hotel Corporation, Appellants. Col. W. W. Yaschenko, Cross Appel-lee.
    Gen. No. 43,551.
    opinion filed June 26, 1946;
    released for publication August 19, 1946.
    Lord, Bissell & Kadyk, for appellants; Leonard F. Martin and Edward S. Crowell, of counsel; Errett O. Graham, for appellee; Hinshaw & Culbertson, for cross-appellee; Oswell G. Treadway, of counsel.
   Opinion by

Presiding Justice Kiley.

Not to be published in full.


text:
    Eric Bock, Appellee, v. Felix Jablonski et al., Defendants. Appeal of Felix Jablonski, Appellant.
    Gen. No. 43,560.
    opinion filed June 26, 1946;
    released for publication August 19, 1946.
    G. A. Buresh, Charles D. Callahan and Joseph D. Irose, for appellant; G. A. Buresh, of counsel; A. C. Lewis, for appellee.
   Opinion by

Presiding Justice Kiley.

Hot to be published in full.


author: Justice Burke.

text:
    W. C. Magruder, Appellant, v. John Berninger and Margaret J. Berninger, Appellees.
    Gen. No. 43,577.

      opinion filed June 26, 1946;
    released for publication August 19, 1946.
    I. Roy Ross, for appellant; Andrew Pettinger, for appellees; G. A. Bosomburg, of counsel.
   Opinion by

Justice Burke.

Not to be published in full.


author: Justice Lewe.

text:
    People of State of Illinois, Appellee, v. Bruno Austin et al., Appellants.
    Gen. No. 43,699.
    opinion filed June 26, 1946;
    released for publication August 19, 1946.
    Abraham Teitelbaum, for appellants; Max C. Liss, of counsel; William J. Tuohy, State’s Attorney, for appellee; Edward E. Wilson, John T. Gallagher, Melvin S. Rembe, Joseph A. Hope and C. D. Pemberton, Assistant State’s Attorneys, of counsel.
   Opinion by

Justice Lewe.

Not to be published in full.


author: Mr. Justice Scanlan

text:
    Selma Savit, Administratrix of Estate of Julius Savit, Deceased, Plaintiff Appellee, v. Chicago Title and Trust Company, Trustee et al., Defendants. Theodore J. Ticktin, Appellant.
    Gen. No. 43,206.
    Opinion filed February 14, 1946.
    Rehearing denied February 26, 1946. Released for publication February 26, 1946 as an abstract;
    released for publication as a reported ease September 3, 1946.
    Herman & Pollack, for appellant; Edward M. Herman and B. L. Pollack, of counsel.
    Shulman, Shulman & Abrams, for plaintiff appel-lee; Meyer Abrams, of counsel.
    Warren B. Buckley, Harold L. Reeve, and Edmund J. Reynolds, for certain appellee.

      Kirkland, Fleming, Green, Martin & Ellis, for certain other appellees; Walter C. Senne and John M. O’Connor, Jr., of counsel.
   Mr. Justice Scanlan

delivered the opinion of the court.

After foreclosure proceedings and in accordance with a reorganization agreement, the property commonly known as 5000 Cornell avenue, Chicago, Illinois, was conveyed to the Chicago Title and Trust" Company, as Trustee under a liquidation trust agreement dated June 1, 1935. Defendants Aldis J. Browne, John B.. Magill and Charles H. Ehrlich are Trust Managers under the agreement. Selma Savit, as ad-ministratrix of the estate of her husband, holds certificates of beneficial interest in the trust. On April 27, 1944, two of the Trust Managers, Browne and Ehrlich, Magill being ill, accepted an offer of Theodore J. Ticktin, defendant, to purchase the property for the sum of $471,000, subject to certain commissions. On the same day hut shortly before the acceptance the instant complaint was filed. Prior to the acceptance the Trustee was notified that the complaint would be filed. After the acceptance the Trust Managers notified Ticktin to deposit the balance of the purchase price by May 8, 1944, but he did not deposit said balance at any time thereafter. The purpose of plaintiff’s complaint was to prevent the sale of the premises to Ticktin;

After the pleadings had been settled the chancellor, Judge Miner, after hearing evidence entered, on June 2, 1944, a decretal order, which contains the following :

“1. That this court has jurisdiction of all of the parties hereto and of the subject matter.

“2. That the premises involved herein are located at 5000 Cornell Avenue, Chicago, Illinois, and consist of a lot fronting 100 feet on said Cornell Avenue and having a depth of 106 feet 4% inches, improved with a 21-story and basement brick building, approximately fifteen years old, containing 38 5-room apartments, 38 6-room apartments, one 5-room janitor’s apartment and a bungalow apartment of nine rooms, appraised by the Appraisal Committee of the Chicag’o Real Estate Board as of March 29, 1944 at a fair market value of $438,000.00. Said property is held in trust by Chicago Title and Trust Company, as Trustee, under a liquidation trust agreement dated June 1,1935, and known as Trust No. 30993, of which the defendants Aldis J. Browne, John R. Magill and Charles H. Ehrlich are the Trust Managers.

“3. That the object of the trust is the sale, liquidation of the trust property and the distribution of the net proceeds thereof to the beneficiaries, who are numerous and widely scattered. The trust agreement vests in the Trustee, Chicago Title and Trust Company, full power to grant options, to contract to sell, and to sell and convey the trust property, provided that prior to the termination of the trust the Trustee shall not sell or convey unless not less than twenty days prior to such sale the Trustee shall mail to the beneficiaries notice of the receipt of an offer to purchase, and unless the holders of less than 50% of the units outstanding shall lodge with the Trustee written objections to such proposed sale. The trust agreement further provides that the Trustee shall not contract to sell or convey the trust property, except upon the written direction of the trust managers, but the Trust Managers have no power to contract to sell, sell or convey the trust property, this power being vested solely in the Trustee.

“4. That prior to April 4,1944 the Trust Managers received several offers from prospective purchasers and that the highest offer was made by the defendant, Theodore J. Ticktin, who offered $443,000.00 in cash for the said premises, which offer was $5000.00 more than the appraised fair market value of the property ; that the offer of Ticktin was in writing and was subject to the payment of a broker’s commission at the Chicago Real Estate Board rate amounting to approximately $14,290.00. The brokerage commission was to be split equally between Ross, Browne and Fleming, of which firm the defendant, Aldis J. Browne, was a member, and the broker representing the purchaser. The beneficial interest in the trust is divided into two classes of units, one known as Series ‘A’ and one known as Series ‘B’, and the above offer would amount to approximately $48.00 on each of the Series ‘A’ units, and approximately $2.60 on each of the Series ‘B’ units outstanding. The sum of $22.35 per unit of beneficial interest had been theretofore distributed to the beneficiaries.

“5. There was a provision in an instrument attached to the offer but not made a part thereof, that the , Trust Managers had the right to receive higher offers for a period of twenty-one days from the date the notice of the offer was mailed to the certificate-holders; that said instrument further provided if higher bids would be obtained by the Trust Managers, then the said Theodore J. Ticktin would have the privilege of meeting such higher bids within three days after the expiration of the time for the beneficiaries to dissent from such sale. The Trustee was not advised of the giving of the foregoing option to said Ticktin, nor was it advised of the division of the commission.

“6. On April 4, 1944, at the direction of the Trust Managers, Aldis J. Browne, John R. Magill and Charles H. Ehrlich, The Chicago Title and Trust Company, as Trustee, mailed to all beneficiaries, otherwise known as certificate-holders, a letter prepared by the Trust Managers bearing said last-mentioned date, notifying them of the Ticktin offer of $443,000.00 cash, subject to a broker’s commission, as aforesaid, and containing considerable other pertinent information. The notice was silent on the right of said Ticktin to the higher bid within the three day period and on the division of the commission, nor was the name of the brokerage firm, of which one of the Trust Managers was a member, disclosed.

“7. Upon the expiration of the aforesaid twenty-day period the holders of certificates of beneficial interest representing less than 50% of the units outstanding, lodged with the Trustee objection to said offer, which information the Trustee, thereupon, communicated to the Trust Managers. The Trust Managers, within said twenty-one day period, received higher offers, the highest being $471,000.00; that the Trust Managers notified said Ticktin within the three-day period, that the highest bid which they had received was $471,000.00, out of which there was to be paid the brokerage commission and thereupon, the said Ticktin met said bid, offering to pay $471,000.00 in cash, subject to the payment of the brokerage commission as aforesaid. The Trust Managers purported to accept the said bid of Ticktin about one-half hour after the filing of the complaint herein, and to sell the premises to him. Plaintiff offered in her complaint to guarantee a net bid of $465,000.00 and to make good this offer, her attorneys deposited with the Trustee, pursuant to the order of the court, the sum of $15,000.00.

“8. The beneficiaries, by their failure to object to the sale, have approved a sale at less than the guaranteed bid of the plaintiff and the property might bring more at a sale to be held in open court, with no possible loss to the beneficiaries, but with benefits to them in that they will participate in the proceeds realized from a higher bid.

“9. Under the terms of the Trust Agreement, the Trust Managers could only direct the Trustee to accept an offer made to it, and they had no power to contract for the sale of the premises or to sell the premises and they had no power to accept any offer and consequently, the purported acceptance of the offer of Ticktin did not result in a binding contract and the contract should, therefore", be canceled and set aside and removed as a cloud on the title to the property.

“10. The property should be sold to the highest and best bidder for cash at not less than the guaranteed bid, at a sale to be held in open court at such time as this court shall fix, subject to the right of the court to adjourn the sale from time to time, in its discretion and subject to its approval.

“11. That the plaintiff herein is the owner of certificates of beneficial interest for units of both Series £A’ and Series £B’ hereinabove mentioned, and her interests as such certificate-holder are not adverse to, nor inconsistent with, the rights of all other certificate-holders not otherwise herein represented, who exceed 500 in,number and are widely scattered throughout the United States, so that it is impossible to bring them all before this court; that the plaintiff’s interest as a holder of certificates as aforesaid are the same as and identical with those of the other holders of certificates of beneficial interest under said trust, and that their interests are represented by the plaintiff herein; that it is not necessary that the other beneficiaries who are not otherwise herein represented be made defendants hereto, their interests being fully represented by the plaintiff, and by the Chicago Title and Trust Company, as Trustee.

“12. That no fraud was committed in the solicitation of the bids and the acts performed by any of the parties, but due to the fact that the acts of the Trust Managers were controlled by the majority and the acceptance of the bid was only by two of the Trust Managers, one of whom was a member of the brokerage firm which participated in the commissions, the court cannot sanction acts involving discretion where a Trust Manager might have been influenced by the commissions which were to go to his firm, and irrespective of the good motives of any of the parties, the law does not sanction such acts. ’ ’

The decree orders and decrees that the purported contract between defendant Ticktin and the Trust Managers for the sale of the property in question “is null and void and is hereby canceled and set aside as a cloud on the title of the Chicago Title and Trust Company, as Trustee of the 5000 Cornell Liquidation Trust”; that the sale of the premises shall be held in open court, on June 16, 1944, at eleven o’clock in the forenoon. The decree then recites the terms upon which the sale shall be made. The decree further recites :

“IV. That the sale of the said Trust property, as hereinabove described, shall be made in the following manner:

“Bids for the hereinbefore described Trust property will be received in open court, on June 16, 1944 at 11:00 o’clock in the forenoon, until the highest and best bid is made therefor. After the highest and best bid for the said Trust property is ascertained from among the bidders whose bids are then made in open court, opportunity will be allowed to Theodore J. Ticktin forthwith to meet the highest and best bid so made. If he does so forthwith meet such highest and best bid so made, any further bids to be made must exceed by at least $2500.00 the said bids of said Theodore J. Ticktin. If no further bids are made, exceeding by at least $2500.00 the bid of said Theodore J. Ticktin, the court will direct the Trustee to sell the said Trust property to him. If further bids are made, exceeding by at least $2500.00 the bid of the said Theodore Ji Ticktin, the bidding will be reopened and the highest and best bid then again ascertained. Theodore J. Ticktin will again be allowed forthwith to meet the highest and best offer then made, and, further, opportunity will thereupon be allowed other offerors to reopen the bidding by the making of an increased bid exceeding the highest bid of Theodore J. Ticktin by at least $2500.00. This process shall continue until Theodore J. Ticktin fails to meet the highest and best bid made, or until other offerors fail to increase by at least $2500.00 the last bid of Theodore J. Ticktin. ’ ’

Plaintiff contends that the record shows that paragraph four was incorporated in the decree because the chancellor assumed from the attitude of the parties that if Ticktin was given the privilege stated in the paragraph the decree would amount to a consent decree. Counsel for, Ticktin contends that there was no such understanding and that the decree was not entered by consent of Ticktin.

Ticktin is the only appellant. The Title & Trust Company, Trustee, has filed a brief in which it contends that the Trustee had the exclusive power to sell the property and that the chancellor correctly held that the Ticktin contract was null and void. While the Trust Managers did not appeal from the decretal order, they have filed a short brief in which they state that “in the trial court these defendants interposed a defense based upon the proposition that they had in all respects acted honestly and in good faith and in accordance with the terms and provisions of the Trust Agreement, and therefore, the court is without jurisdiction in the matter,” and they adopt the brief and argument filed by Ticktin. On June 6, 1944, Tick-tin filed his notice of appeal from the decree of June 2, 1944, and served notice of the appeal upon all parties. It appears from the record that on June 7, 1944, the chancellor entered a decree that is, in all respects, like the decree of June 2, 1944, save that it omits paragraph four of the decree of June 2, 1944, that gave Ticktin the privilege to meet higher bids at the court sale. Ticktin did not appeal from the order of June 7 but he asks us to pass upon that order upon this appeal and to reverse it. Ticktin perfected his appeal from the order of June 2,1944, on June 6,1944, and that appeal does not bring up for review the order entered June 7, 1944. Ticktin suggests that if we hold that we cannot consider the order of June 7 upon this appeal that we allow him to file in this court and in this proceeding a notice of appeal from the order of June 7, and he states that such an appeal would be “within the purview of Section 76 of the Civil Practice Act.” The Practice Act does not give us the power to grant such an appeal.

From the briefs filed by plaintiff and Ticktin and the numerous motions and counter-motions made by them in this court, it would appear, at first blush, that a number of complex questions were presented by this appeal, but when one keeps in mind that Ticktin, alone, appeals from the decree, the appeal, in oui* judgment, presents no difficult questions. Counsel for the Trustee, in a model brief of three or four pages, have shown very clearly that the only question necessary for us to decide is, Was there a valid and binding contract of sale entered into between the Trust Managers and Ticktin involving the premises described in the trust agreement. The Trustee and plaintiff contend that the trust agreement vests the power of sale in the Trustee and not in the Trust Managers. The chancellor found that “TJnder the terms of the Trust Agreement, the Trust Managers could only direct the Trustee to accept an offer made to it, and they had no power to contract for the sale of the premises or to sell the premises and they had no power to accept any offer and consequently, the purported acceptance of the offer of Ticktin did not result in a binding contract and the contract should, therefore, be canceled and set aside and removed as a cloud on the title to the property.” As defendant states, “the Trust Agreement is the charter of the powers of the Trustee and Trust Managers.” The following are the pertinent provisions in the trust agreement that apply to the question before us:

The party of the first part “have caused to be transferred and conveyed, to the party of the second part as Trustee, the property set forth and described in the schedule of property hereto attached and made a part hereof, for the purpose of the sale and liquidation thereof, and the distribution of the proceeds,

“Subject to the provisions of Article IX hereof, the Trustee shall have full power to perfect and secure its right, title or interest to the Trust Property or any portion thereof . . . and shall hold all of the Trust Property in trust, to sell and convert the same into cash or other personal property, and' to distribute the net proceeds .... And said Trustee shall have 'frill pmver to grant options to purchase, to contract to sell and to sell the Trust Property and any part or parts thereof on any terms, including a sale or transfer of the Trust Property . . . ; to sell, contract to sell, lease and sublease, assign, dispose of, . . . and provided further that the Trustee shall not prior to the termination of this trust sell or otherwise dispose of all or substantially all of the Trust Property unless not less than twenty days prior to such sale

“No purchaser, contractee, lessee, sub-lessee, as-signee or mortgagee of any of said Trust Property from the Trustee and no person dealing with the Trustee, shall be required to see to the application of the rents, purchase money, or moneys borrowed or advanced on said premises or property, or be obliged to see that the terms of this trust have been complied with, or be obliged to inquire into the necessity or expediency of any act of the Trustee, or to inquire into the power and authority of the Trustee.” (Italics ours.)

Upon the termination of the trust and at the time and place of sale “all of said Trust Property shall be sold by the Trustee as a whole or in parcels at public or private sale or sales as the Trustee shall determine; and upon any such sale or sales the Trustee shall have the power to transfer and convey . . . .” (Italics ours.)

The agreement further provides:

“The Trust Managers shall keep books containing a description of all property from time to time constituting the Trust Property hereunder, and an account of all receipts and disbursements. All of the business of this trust, except as herein otherwise specifically provided, shall be managed and transacted, and all of the powers and duties of the Trustee shall be directed and controlled by the Trust Managers, it being expressly understood, however, that the Trust Managers shall have no title, legal or equitable, to the Trust Property, and shall in no event be deemed to be co-trustees of the Trust Property with the Trustee. The Trust Managers shall collect all income, issues and profits of the Trust Property, shall pay therefrom all costs and expenses of the operation and management of the Trust Property, and shall pay over the net rentals after the payment of costs and expenses of operation and management, to the Trustee to be held and distributed by the Trustee as herein provided.”

After a careful consideration of the above provisions of the trust agreement we are satisfied that the chancellor was justified in his finding in the decree that “Under the terms of the Trust Agreement, the Trust Managers . . . had no power to contract for the sale of the premises or to sell the premises and they had no power to accept any offer and consequently, the purported acceptance of the offer of Tick-tin did not result in a binding contract and the contract should, therefore, be canceled and set aside and removed as a cloud on the title to the property.” The chancellor, in our judgment, erred in finding that the Trust Managers, under the trust agreement, could direct the Trustee to accept an offer made to them. However, the Trust Managers did not direct the Trustee to accept the offer made by Ticktin and accepted by them, and the position of Ticktin is that the Trust Managers, with the approval of the beneficiaries, had the power, under the trust agreement, to enter into a valid agreement with Ticktin for the sale of the property “which [agreement] the Trustee was bound to perform.” The interest of Ticktin in the instant proceeding ends if the agreement of sale was not a binding contract that the Trustee, under the trust agreement, was obliged to carry out. Counsel for Ticktin seek to confuse the real question before us by arguments like the following: “A court of equity will not interfere with the discretionary powers of fiduciaries in the absence of proof that they acted unreasonably or in bad faith”; that “a court of equity will never interfere before or after sale except in eases of actual fraud or collusion”; that “it is not the function of a court of equity to direct trustees except upon application to the court by the trustee,” principles of law that have no application to the question before us.

Plaintiff strenuously contends that, entirely -aside from the point that the Trust Managers were without power under the terms of the trust agreement to enter into the contract of sale, there are other good grounds that would warrant the voiding of the contract, but, in our view of this appeal, it is not necessary for us to pass upon the said grounds. However, as to one of the grounds urged, we feel impelled to say that as a majority of the Trust Managers controlled their actions and as the acceptance of Ticktin’s offer was signed by only two of the Managers, one of whom was a member of a brokerage firm that would participate in the brokerage commission of $15,000 provided for in Ticktin’s offer, the‘propriety of the act of that member in signing the acceptance — indeed, the binding effect of the act — may well be questioned. We may add that the record tends to show that the acceptance of Ticktin’s offer was unduly hastened by the knowledge that plaintiff had filed or was about to file her complaint. It is due the Trustee to say that in its brief it states that it “is opposed to the acceptance of offers on liquidation trust sales where a Trust Manager participates in the broker’s commission or where any offeror is given the right to meet higher bids.”

Defendant Ticktin contends that the court erred in denying his motion to dismiss the complaint and supplemental amendment thereto. On May 18, 1944, the chancellor entered an order denying Ticktin’s motion to dismiss the complaint save as to paragraph seven, which paragraph was dismissed, and in the same order, upon motion of Ticktin’s attorney, the latter was granted leave to answer the complaint, and on May 22, 1944, upon motion of his attorney, Ticktin was granted leave to adopt the answer of the Trust Managers as his answer. The notice of appeal in this cause states that Ticktin “hereby appeals from the final decree entered in this cause on June 2, 1944,” and the prayer is that the decree be reversed, vacated and set aside. The chancellor, in the decree, did not pass upon the sufficiency of the complaint, and the instant contention is plainly an afterthought. However, assuming that Ticktin has the right to raise the instant contention, we hold that the complaint and the amendment thereto were certainly not so fatally defective that they would not support that part of the decretal order that pertains to the contract in question. After judgment the rule by which pleadings before judgment are construed most strongly against the pleader is reversed and the pleading upon which the judgment is based is liberally construed for the purpose of sustaining the judgment, and if the pleading states a cause of action, however defectively or imperfectly, and the issue joined requires proof of the fact defectively stated, the pleading is sufficient to sustain the judgment although it may have been demurrable. (Smith v. Rutledge, 332 Ill. 150.)

It is clear that the chancellor erred in including in the decree paragraph four. That he quickly realized his error appears from the decretal order entered on June 7, 1944. Plaintiff has filed a motion for leave to confess error as to that paragraph. Defendant Tick-tin states that “the provisions in the decree [paragraph four] for Ticktin to bid at a court sale conferred no benefit upon him. This very appeal taken within four days after the entry of this decree, and his assignments of error attacking the whole of said decree rejects any conclusion of an acceptance of such purported benefit.” In view of the position of the parties there is no good reason why that part of the decree of June 2, 1944, should not be reversed.

The decree of the Circuit court of Cook county of June 2, 1944, with the exception of paragraph four of the decree, is affirmed. Paragraph four of the decree will be reversed.

Decree of June 2,1944, affirmed in part and reversed in part.

Friend, P. J., and Sullivan, J., concur.


author: Mr. Presiding Justice Kiley

text:
    Ralph N. Duval, Appellee, v. Coca-Cola Bottling Company of Chicago, Appellant.
    Gen. No. 43,458.

      Opinion filed June 26, 1946.
    Released for publication August 19, 1946.
    Robert D. Thompson, of Chicago, for appellant; Richard E. Keogh, of Chicago, of counsel.
    Lawrence W. Harris, of Chicago, for appellee.
   Mr. Presiding Justice Kiley

delivered the opinion of the court.

This is a personal injury action with verdict and judgment for plaintiff in the amount of $500. Defendant has appealed.

Plaintiff on May 12, 1943 was a co-pilot for the American Airlines Company. On that night he was in its Operations Office in preparation for a flight to Washington, D. C. He walked from the office to a vending machine in the adjoining hangar several feet away to obtain a bottle of Coca-Cola. He inserted a coin and a bottle of Coca-Cola was presented to. him. He uncapped the bottle in an opener in the machine. Holding the bottle he returned to the Operations Office. There he drank one swallow from the bottle. It tasted strange. He drank another swallow, thus consuming about one-half of the Coca-Cola. It tasted “peculiar”. Plaintiff and several of his fellow employees smelled the bottle and examining it discovered the body of a mouse. Plaintiff’s stomach became upset. He felt nauseated.

Plaintiff talked on the phone to a Company doctor. After this conversation and about 15 minutes after the incident, he boarded the plane which took off for Washington. He piloted the plane east from Cincinnati. During the trip he suffered from headache and from nausea. In Washington he vomited once or twice during the night and once the next morning. He suffered stomach pains throughout the night and his bowels were disordered. He did not consult a doctor. The morning after his arrival in Washington he was able to retain a light breakfast. He rested that day and and at night made the return trip to Chicago. He felt better that night, but was not back to normal for a “full” week. He lost no time from work and had no expense in connection with his sickness.

This was the substance of the material testimony in plaintiff’s case. Defendant maintains that its motions for directed verdict should have been sustained at the close of plaintiff’s case and at the conclusion of all the evidence and that its motion for judgment notwithstanding the verdict should have been sustained. Plaintiff’s case rested upon the doctrine of res ipsa loquitur. Defendant contends that the doctrine is inapplicable because the evidence shows that the injurious instrument was not exclusively in its control.

Defendant’s Route Manager testified that defendant did not commence servicing the vending machine directly until July, 1943; that at the time of the incident, subject of this suit, defendant delivered Coca-Cola to “one of our salesmen” in the vicinity of the Municipal Airport who kept it in his garage; and that the bottles were sealed when they were delivered to him. The inference from this testimony is that the man to whom the defendant delivered the Coca-Cola serviced the vending machine. The bottles were sealed when they were delivered to this salesman and the bottle which was presented to plaintiff by the machine on the night in.question was sealed and was, presumably, one which had been placed in the machine by the salesman. We believe that defendant, for practical purposes, had exclusive control of the bottle of Coca-Cola. Fisher v. Washington Coca-Cola Bottling Works, 84 Fed. Rep. 261. We cannot take seriously any suggestion that the mouse may have entered or been placed in the bottle while in the garage of the salesman.

The character of the incident was not such as to enable plaintiff to allege and prove defendant’s negligence. The facts from which its alleged negligence arose were not accessible to him and were in the possession of the defendant. The incident was one which, in the ordinary course of events, would not have happened had it not been for the negligence of the defendant. Plaintiff’s conduct in taking the second drink after the first swallow tasted peculiar, was not contributory negligence. Under these circumstances we are of the opinion that the doctrine of res ipsa loquitur is applicable. Fisher v. Washington Coca-Cola Bottling Works, 84 Fed. Rep. 261. The court properly denied the several motions which sought to preclude plaintiff’s recovery as a matter of law. The presumption of defendant’s negligence on the testimony offered in plaintiff’s behalf was sufficient to take the case to the jury.

The defense rested upon testimony of defendant’s bottling process. The plant superintendent testified and photographs of the equipment depicting various phases of the process were introduced in evidence. Briefly, the process included the reception of empty, used Coca-Cola bottles at the plant; the manual placing of these bottles in pockets on an endless chain to be taken through the various washings; the performance of this function by teams of three men handling 4 bottles each at a time and inspecting them as they handled them; several washings in various solutions and at various temperatures, including a caustic solution ; a final rinsing before the bottles left the washing equipment on their way to the filler; an inspection of the bottles by teams of two inspectors sitting at a table above which five 200 Watt bulbs reflected light into the passing bottles; filling of the bottles with the mixture of Coca-Cola sirup and carbonated water; and the capping and casing of the bottles.

Defendant maintains that this testimony and the fact that its equipment was of the best • make and quality, were sufficient to overcome the presumption of its negligence under the res ipsa loquitur doctrine. Further facts developed in defendant’s case on direct and in cross-examination were that the bottles were washed, while inverted, only once; that during the circuit they were upside down twice; that no bristle brushes were used in the washing, but an air brush was used; that the water is heated by steam coils and the water used in washing is changed weekly, although fresh water is added daily; that the bottles pass the two inspectors after the rinsings at the rate of 180 bottles per minute; that the plant superintendent did not remember when this number was reduced from, 280 to 180; that these inspectors are changed every 30 minutes ; that they look for broken bottles and for bottles “containing something”; that empty bottles being taken from containers for washing have been found to contain cigarette butts, pencils, corks, clothes pins, but never a mouse; that the sirup is kept in sterile steel tanks and piped through a sterile steel line to the mixer near the filler; that in this journey it is screened through a steel mesh; that if a foreign substance passed the inspectors in a bottle after the rinsing, it would overflow in the filling and the bottle would be taken out and broken; and that during these several steps in the washing circuit, five employees have an opportunity to inspect.

The question of defendant’s negligence was for the jury and in view of the testimony we have related, we see no reason to disagree with a finding by the jury that defendant was negligent. 111 A. L. R. pp. 1244 and 1245.

Defendant contends that there was no testimony which tended to show that plaintiff’s sickness was proximately caused by the contents of the bottle of Coca-Cola. It points to the absence of medical testimony and to the likelihood that plaintiff’s eating in restaurants and the flight may well have been responsible for his sickness. We think plaintiff’s experience was sufficient basis itself for a finding by the jury that the substance which he drank caused his illness.

Defendant further complains that there was no testimony, and could not have been, of any damages. We think that plaintiff’s experience and the sickness which followed, without more, was enough to warrant the verdict which was returned in his favor.

Finally defendant complains that the trial court committed error in refusing to give an instruction on contributory negligence which it offered. The court gave one instruction on this subject at defendant’s request. We have read it and the refused instruction and find no merit in this contention.

We have considered all the points raised and we are of the opinion that the verdict and judgment were proper. The judgment is, therefore, affirmed.

Judgment affirmed.

Lewe and Burke, JJ., concur.


author: Mr. Justice Burke

text:
    People of State of Illinois ex rel. Andrew M. Fosse, Appellee, v. James P. Allman, Commissioner of Police of City of Chicago et al., Appellants.
    Gen. No. 43,190.

      Opinion filed June 26, 1946.
    Rehearing denied September 6, 1946. Released for publication September 9, 1946.
    Barnet Hodes, Corporation Counsel, for appellants; J. Herzl Segal, Head of Appeals and Review Division, Fred V. Maguire, Carl H. Lundquist and L. Louis Karton, Assistant Corporation Counsel, of counsel.
    Michael F. Ryan, of Chicago, for appellee; Kirkland, Fleming, Green, Martin & Ellis, of Chicago, of counsel.
   Mr. Justice Burke

delivered the opinion of the court.

Andrew M. Fosse filed a petition for mandamus in the circuit court of Cook county against the commissioner of police, the civil service commissioners and the comptroller of the City of Chicago to compel restoration to the position formerly held by him as a patrolman in the classified service of the department of police, from which he was discharged after a hearing before the Civil Service Commission. After the opinion of the Supreme Court in People ex rel. Elmore v. Allman, 382 Ill. 156, upon leave of court, he changed the form of action to certiorari and filed an amended complaint for a writ of certiorari to review the record of the Civil Service Commission. Defendants’ motion to strike the amended complaint for certiorari was denied and a writ issued. The Commission filed its return. The court sustained plaintiff’s motion to quash the return and defendants appealed.

On November 28, 1941 plaintiff was a patrolman in the classified service of the department of police of the City of Chicago. On December 12, 1941 charges were filed against him.

Defendants state that on certiorari to review the proceedings of the Commission, courts have power only to inspect the record to determine whether the record establishes the jurisdictional facts pertaining to the person, the subject matter and the grounds for discharge, and a proper legal procedure for removal under sec. 12 of the Civil Service Act [Ill. Rev. Stat. 1945, ch. 24½, par. 51; Jones Ill. Stats. Ann. 23.052], and that where the record shows such facts the court possesses no power to inquire into the discretion exercised by the commission or to set aside its findings and compel reinstatement of a discharged employee. We are of the opinion that defendants’ statement of the law, as above given, is supported by the authorities. Plaintiff does not argue to the contrary. Defendants maintain, further, that the Commission is not required by law to include in its return to a writ of certiorari a transcript of the evidence given at the hearing, and that the absence of a transcript of the evidence is not ground for quashing the return. Plaintiff insists that the jurisdictional facts must be established by the record; that “the mere recital that evidence was heard and the mere purported ‘findings’ of the Commission are not sufficient to show jurisdiction; that they are but conclusions; that with no transcript of testimony or certificate of evidence in the return there is nothing from which the court can see that the jurisdictional facts were established by any evidence proving, or tending to prove, them.”

The purpose of the writ of certiorari is in all cases to prevent injustice. Board of Supervisors v. Magoon, 109 Ill. 142. It is not a writ of right, the petition being addressed to the discretion of the court. It is awarded where inferior tribunals are shown to have exceeded their jurisdiction, or in cases where they have proceeded illegally and no appeal is allowed and no other mode of directly reviewing their proceedings is provided. The Commission, being a part of the executive and not of the judicial branch of the government, no appeal will lie from its decision even though the statute should purport to grant one. City of Aurora v. Schoeberlein, 230 Ill. 496. The only-office which the writ performs is to certify the record of a proceeding from an inferior to a superior tribunal. Funkhouser v. Coffin, 301 Ill. 257. The trial is on the record alone. Crocher v. Abel, 348 Ill. 269. The court will only examine questions of law arising out of the proceedings of an inferior tribunal. The complaining party does not have an opportunity to have the case retried. As long as the Commission had jurisdiction and followed the form of proceedings legally applicable, the court is without power to disturb the order where there is evidence which fairly tends to sustain the order. The decision of the Commission on the facts is final and not reviewable by the courts. People ex rel. Miller v. City of Chicago, 234 Ill. 416. The power to remove from office, however, is not an arbitrary one. “Where a statute provides that an officer may be removed, but only for cause and after an opportunity to be heard, the power thus granted is not an arbitrary one, to be exercised at pleasure, but only upon just and reasonable grounds, and then not until after notice to the person charged, for in no other way can he have an opportunity to be heard.” Funkhouser v. Coffin, 301 Ill. 257. There is no presumption of jurisdiction in favor of a body exercising a limited or statutory jurisdiction. Nothing is taken by intendment in favor of such jurisdiction but the facts upon which the jurisdiction is founded must appear in the record. Funkhouser v. Coffin, 301 Ill. 257. This jurisdiction must appear affirmatively in the record.

The only power which the Civil Service Commission has to remove from office is conferred on it by sec. 12 of the Civil Service Act, the pertinent portion of which reads: “Excepting as hereinafter provided in this section, no officer or employee in the classified service of any city who shall have- been appointed under said rules and after said examination, shall be removed or discharged except for cause, upon written charges and after an opportunity to be heard in his own defense. . . . The ¡finding and decision of such commission or investigating officer or board, when approved by said commission, shall be certified to the appointing officer, and shall forthwith be enforced by such officer.” This statute forbids the exercise of the power of removal “except for cause, upon written charges and after an opportunity to be heard. ’ ’ The jurisdictional facts upon which the Commission must base its power of removal are: (1) cause, (2) written charges and (3) an opportunity to be heard in his own defense. This latter jurisdictional fact contains two parts: (a) notice of the charges and the time and place of hearing and (b) the participation in the hearing by the person charged and the introduction of testimony. These are the statutory prerequisites to the exercise of the power of removal. Plaintiff admits that the return is sufficient to show that written charges were filed and that plaintiff received a copy of them with the specifications, together with notice of the time and place of a hearing. Also, that the Return shows a finding of guilty. Plaintiff contends that the return is not sufficient to show the following necessary jurisdictional facts: (a) cause, (b) that a hearing was had at which witnesses testified and at which hearing plaintiff participated, and (c) that evidence and testimony tending to prove the charges was offered, received or heard. Plaintiff asserts that the recitals in the return are not enough to show jurisdiction; that they are nothing more than mere conclusions ; and that the testimony must be included, which is the only sure and safe way to show that the required jurisdictional facts were actually present.

We agree with plaintiff that where the jurisdiction of the Commission is challenged, the return should include the transcript of the testimony. In the instant case the testimony is a part of the record of the Civil Service Commission. The return so recites. The courts are not precluded by the Commission’s mere recital. “The record must show that the board acted upon evidence and contain the testimony upon which the decision was based, in order that the court may determine whether there was any evidence fairly tending to sustain the order.” Funkhouser v. Coffin, 301 Ill. 257. In the Funkhouser case the court cited as authority the cases of Hahnemann Hospital v. Industrial Board, 282 Ill. 316; Tazewell Coal Co. v. Industrial Commission, 287 Ill. 465; and Glos v. Woodard, 202 Ill. 480. In the Funkhouser case counsel for the commissioners argued that the decisions of the court in the Hahnemann and Tazewell cases were under a special statute which required the evidence to he preserved and that, therefore, those authorities were not in point. Answering this contention the court said (262):

“We cannot so hold. It is clear that in the Hahnemann Hospital case the court was not laying down the rule simply because that statute required the evidence to be preserved but in accordance with the general rule governing the common law writ of certiorari, for it cites the general doctrine as to this writ laid down in 4 Ency. of PI. and Pr. 262, 11 Corpus Juris 205, and 5 R. C. L. 265; and the rule laid down by these authorities was applied to the common law writ of certiorari whether or not a special statute applied as to the preservation of the evidence in the record, such as required by the Workmans’ Compensation act. The holdings of this court are that the return to a common law writ of certiorari must show by affirmative evidence the jurisdiction of the tribunal passing upon a case removing a person from office, and must show by the facts recited that the tribunal so acting had jurisdiction and authority so to do.” One of the attorneys for the successful litigant in the Funhhouser case was Mr. Francis X. Busch. The petition for rehearing in this case was denied on February 10, 1922. Mr. Busch was Corporation Counsel in 1923. On June 26 of that year he submitted to the then president of the Civil Service Commission “a few suggestions in regard to charges against civil service employees and hearings on said charges which might tend to eliminate unnecessary litigation in the future.” One of the suggestions was that: “The stenographer employed at the said hearing shall transcribe his notes immediately following the said hearing, and these notes as transcribed with proper affidavit of the stenographer attached to same shall constitute part of the records in the case.” See Opinions of the Corporation Counsel and Assistants, 1923-24, pp. 266-8. Having been one of the attorneys in that case, Mr. Busch undoubtedly felt that he was following the views of the Supreme Court expressed in the Funhhouser case in his “suggestions” to the president of the Commission.

In Jarman v. Schuyler County Board of Review, 345 Ill. 248, our Supreme Court, quoting the principle announced in the Funhhouser case, that the record must show that an inferior tribunal acted upon evidence and contain the testimony upon which the decision was based, in order that the court may determine whether there was evidence fairly tending to sustain the order, said (258):

“Referring to the Funhhouser case and summarizing the principles therein expressed this court said in Carroll v. Houston, 341 Ill. 531; ‘The record must show facts giving the inferior tribunal jurisdiction, and mere conclusions of law are not sufficient. The record must show that the board acted upon evidence, and it must contain the testimony upon which the decision was based in order that the court may determine whether there was any evidence fairly tending to sustain the order. . . . There is nothing in the Funk-houser case which changes the rule as it has existed in this State for many years.’ ”

In Frye v. Hunt, 365 Ill. 32, the court cited, among others, the Carroll and Funkhouser cases, and said (37):

“Where the question is whether jurisdictional facts were established, mere conclusions of law are insufficient and the record must show the existence of the facts required to authorize the inferior tribunal or officer to act, and this evidence may properly be reviewed by the court.”

In Crocher v. Abel, 348 Ill. 269, the court said (276):

“The common law writ of certiorari brings up for review only the record of the tribunal to which it is addressed, and not the evidence. An exception to this rule is made when the question involved is whether jurisdictional facts were or were not proved. (Hahnemann Hospital v. Industrial Board, 282 Ill. 316; Carroll v. Houston, 341 id. 531; Hamilton v. Town of Harwood, 113 id. 154; 4 Ency. of Pl. and Pr. 262; 11 Corpus Juris 205; 5 R. C. L. 265.) The cause must be tried on the record, only, but the record must show findings of fact sufficient to give to inferior tribunals jurisdiction of the subject matter and the parties. If there is no evidence to support the findings the court has no jurisdiction to decide the issue. In this case the county court found that there were 532 property owners within the territory, of whom 269, or a majority of three, had signed the petition. Evidence dehors the record, and contradicting it, is not permitted in the absence of statutory authority. Where evidence is permitted to be reviewed by the superior court in ascertaining the existence of jurisdictional facts, it may be examined not for the purpose of determining the credibility of witnesses or the weight to be given conflicting testimony but solely for the purpose of learning whether there is any competent evidence to fairly sustain the decree. (5 R. C. L. ‘Certiorari’, 265.) If this were not so, then the limitations which have always been placed" upon the purposes for which a proceeding by certiorari can be maintained would be removed and it could be employed with the same effect as an appeal or writ of error. There is evidence in this record to support the finding as to the number of property owners within the territory and as to the number who signed the petition. The record sufficiently shows the jurisdictional facts and the finding is conclusive.”

In Kilroy w. Retirement Board, 297 Ill. App. 261, (leave to appeal denied. 297 Ill. App. xvi), the court said (270):

“Under the settled law of this State, where it is sought by the common law writ of certiorari to review a decision or an order of an inferior tribunal, such as the respondent board, the record of such board must show that it acted upon evidence and contain the testimony upon which the decision was based in order that the court may determine whether there was any evidence fairly tending to sustain the order. ’ ’

In Shilvock v. Policemen’s Retirement Board, 301 Ill. App. 84, after citing the Funkhouser and Carroll cases, said (91):

“And it is to be noted from what our Supreme Court has stated that the evidence upon which the conclusion of the Board has been reached must be in the record, and the Board must act upon the evidence in order that this court may determine whether there was any evidence fairly tending to sustain the order. That was not done in this case.” .

See also Campbell v. Civil Service Commission of Springfield, 290 Ill. App. 105, (leave to appeal denied 290 Ill. App. xiv). In Carroll v. Houston, 341 Ill. 531, and Hopkins v. Ames, 344 Ill. 527, the court said that the return of the Commission cannot be quashed on the ground that there was no evidence fairly tending to support the charges. In both cases a transcript of the evidence was filed and in the Carroll case the court said there was evidence fairly tending to support the charges. The case of People ex rel. Henderson v. Dunham, 310 Ill. App. 261, (reported in abstract form) involved an amended petition for mandamus and not a certiorari. The trial court heard the evidence and entered judgment for plaintiff. We held that as the Commission had jurisdiction to conduct the hearing, the discretion exercised could not be reviewed by mandamus. The statement therein as to the practice in certiorari cases was dictum. After reading the cases of People ex rel. Holland v. Finn, 247 Ill. App. 513; People ex rel. Honrahan v. Ames, 277 Ill. App. 312; and Johaaski v. City of Chicago, 274 Ill. App. 423, we have concluded that they do not state the law. We agree with the views expressed in Cord v. Coffin, 226 Ill. App. 326, except the statement therein that the Funkhonser case holds that it is unnecessary to return all of the evidence. We are of the opinion that the rules announced in the Funkhonser case that “the record must show that the board acted upon evidence and contain the testimony upon which the decision was based, in order that the court may determine whether there was any evidence fairly tending to sustain the order, ’ ’ states the law applicable to the record in this case. Sec. 12 of the Civil Service Act controls the Commission in its exercise of the power of removal. Without this section a civil service employee would have no redress, should he be unjustly discharged. He would be virtually in the same position as employees who are not under the classified service. It is patent that preserving the evidence and certifying a transcript thereof, protects the rights of the employer and employee and enables a court, reviewing the record, to decide whether the finding and decision rendered met the jurisdictional requisites.

For the reasons stated the judgment of the circuit court of Cook county quashing the return to the writ of certiorari is affirmed.

Judgment affirmed.

Kiley, P. J., and Lewe, J., concur.


text:
    John T. Cartan, Walter F. Healy, Louis Klatzco, Thomas Connelly, William J. Drury, Thomas Harrison and Eugene A. Barry, Appellees, v. Walter L. Gregory, James B. Cashin and William F. Clarke, Civil Service Commissioners of City of Chicago, Appellants.
    Gen. Nos. 43,324, 43,388, 43,402, 43,403, 43,411-43,414.

      Opinion filed June 26, 1946.
    Rehearing denied September 6, 1946. Released for publication September 9, 1946.
    Barnet Hodes, Corporation Counsel, for appellants; J. Herzl Segal, Head of Appeals and Review Division, Fred V. Maguire, Carl H. Lundquist and Louis Karton, Assistant Corporation Counsel, of counsel.
    Michael F. Ryan, of Chicago, for appellees, Cartan, Healy and Klatzco.
    Michael F. Ryan and Martin S. Gerber, both of Chicago, for appellee, Klatzco.

      Cusack & Cusack, of Chicago, for appellee, Connelly.
    Stephen Love, of Chicago, for appellee, Drury.
    Kirkland, Fleming, Green, Martin & Ellis, of Chicago, for appellee, Harrison.
    Howard Ellis, Walter E. Tinsley and John M. O’Connor, Jr., all of Chicago, of counsel.
   Mr. Justice Burke

delivered the opinion of the court.

John T. Cartan, Walter F. Healy, Louis Klatzco, Thomas Connelly, William J. Drury, Thomas Harrison and Eugene A. Barry filed separate complaints in the superior court of Cook county, praying that a writ of certiorari be directed to Walter L. Gregory, James B. Cashin and William F. Clarke, civil service commissioners of the City of Chicago, commanding them to certify and file a true and complete record of the proceedings of the Commission in the matter of the removal on June 16,1944 of William J. Drury, as lieutenant, and of the other plaintiffs as captains of police in the classified service of the department of police of the City of Chicago. The court overruled defendants’ motions to strike and dismiss the complaints, and directed that writs of certiorari issue, commanding defendants to certify and file a full, true and complete copy of the official record made, kept and preserved by them as such commissioners, up to and including June 16, 1944, in the matter of the removal of each plaintiff. Defendants filed a return and a supplemental return. The court sustained the motion of each plaintiff to quash the return and supplemental return, denied defendants’ motions to quash the writs in each case; and the record of the Civil Service Commission was quashed. After judgment was entered in the certiorari case, Lieutenant Drury filed a complaint for mandamus to compel the defendants to permit him to take a promotional examination for captain. Defendants denied that he was eligible to take a promotional examination because he had previously been discharged from the police force after a trial before the Commission and was not an employee of the police department. The court directed a writ of mandamus to issue, command.-ing the defendants to permit Drury to take a promotional examination for the position of captain of police. From the judgments in these cases, separate appeals were taken.

A consolidated brief was filed on behalf of the appellants in six cases for writs of certiorari and in the mandamus case. Captains Harrison, Cartan, Healy, Klatzco and Connelly, appellees, also filed a consolidated brief. Lieutenant Drury, by order of court, entered on stipulation, did not file a brief in the certi-orari case, but adopted the brief of Captain Harrison. He, (Lieutenant Drury) filed a brief in the mandamus case. In the Captain Barry case the parties stipulated that the court file an opinion and enter judgment in conformity with the opinions and judgments in the other cases.

Each plaintiff commanded a police district. Each was suspended as an employee in the classified service, restored to duty for one day, again suspended and again restored to duty by virtue of a writ of mandamus issued out of the superior court. Charges were filed against Healy on December 2, 1943; against Drury on December 17, 1943; against Cartan on December 22, 1943; against Connelly on December 28, 1943; against Klatzco on December 29, 1943; against Harrison on December 23, 1943; and against Barry on December 22,1943. They were charged with “conduct unbecoming a police officer or employee of the Police Department” and “neglect of duty.” Accompanying the charges and as a part thereof, were “specifications” and a “schedule of particulars.” The charges and specifications were duly served on plaintiffs and they were given due notice of the time and place of the hearings. Plaintiffs were present and represented by counsel at the hearings and all adjournments thereof. Defendants, in the return, incorporated the findings and decision of the Civil Service Commission dated June 16, 1944. Therein defendants found each plaintiff guilty of the charges and specifications, and ordered him discharged from his position.

In the case of Harrison, Drury and Klatzco contempt proceedings were instituted against defendants by the filing of a petition for a rule to show cause based on the allegation that the finding and decision in the return bore the date of June 16, 1944, but that said finding and decision was not on file and on record and in existence on that date, and on the further ground that the defendants failed to include in the return various motions made, letters written and orders entered during a hearing before the Commission. Afterwards a rule to show cause was entered and 'the defendants answered. A hearing was had in the Harrison ease and defendants were found guilty of contempt of court for failure to comply with the writ of certiorari, in that the return contained a finding and decision which was not of record, in existence and on file with the Civil Service Commission until June 22, 1944, and for failure to file a full and complete return. Commissioners Gregory and Clarke were fined $2,500 each and ordered committed to jail for 30 days, there to remain until each paid his fine and “unless he shall sooner purge himself of said contempt by complying with the writ of certiorari, or until released by due process of law.” Subsequently, a hearing was had on the rule to show cause in the Drury case. During the course of that hearing the commissioners purged themselves by filing a full, true and complete record as commanded by the writs. They did not appeal from the contempt order. Consequently, they cannot urge the contempt judgment as ground for appeal in the certiorari proceedings. In the court below the trial was based solely on the record returned by the commissioners.

Since the Civil Service Act contains no provisions for a judicial review of the actions of the Commission, the common law writ of certiorari is the only mode of review. This writ brought before the superior court the record of the proceedings of the Commission. The trial is on this record alone. The record must show affirmatively all the necessary facts upon which the jurisdiction of the Commission is founded. “There is no presumption of jurisdiction in favor of a body exercising a limited or statutory jurisdiction. Nothing is taken by intendment in favor of such jurisdiction but the facts upon which the jurisdiction is founded must appear in the record.” Funkhouser v. Coffin, 301 Ill. 257. Section 12 of the Civil Service Act, (par. 51, ch. 24½, Ill. Rev. Stat. 1945- [Jones Ill. Stats Ann. 23.052]), which gives removal powers to the Commission, reads:

“Excepting as hereinafter provided in this section, no officer or employee in the classified civil service of any city who shall have been appointed under said rules and after said examination, shall be removed or discharged except for cause, upon written charges and after an opportunity to be heard in his own defense. Such charges shall be investigated by or before said civil service commission, or by or before some officer or board appointed by said commission, to conduct such investigation. . . . The finding and decision of such commission or investigating officer or board, when approved by said commission, shall be certified to the appointing officer, and shall forthwith be enforced by such officer. ’ ’

This section sets forth the only authority for removal and enumerates the steps to be taken. Under Section 12 the jurisdictional prerequisites to the exercise of the power of removal are: (1) cause, (2) written charges, (3) an opportunity to be heard in his own defense, (4) a finding and decision approved by the Commission and certified to the appointing officer for enforcement forthwith, and (5) observance of the form of proceedings legally applicable in such cases. Plaintiffs maintain that the return does not sustain the finding and decision of June 16,1944, directing the removal of plaintiffs, in that it does not show the necessary jurisdictional facts. Plaintiffs admit, because each return contains proof of service that the charges were served, but insist that no other necessary jurisdictional facts affirmatively appear. Sec. VI of the Civil Service Buies adopted by the Commission under the authority of sec. 4 of the Civil Service Act, provides:

‘‘ The finding and decision of the Commission, or any officer or board appointed by it, following an investigation of charges, shall be preserved by the Secretary, and notice of said finding and decision sent to the department head or employing officer for enforcement. If the finding or decision is that an officer or employe is guilty of charges investigated, and removal or discharge is ordered, such order of removal or discharge shall become effective forthwith.”

This rule has the same effect as the statute itself and is binding on the Commission. Lindblom v. Doherty, 102 Ill. App. 14.

On June 16, 1944 the following finding and decision was on file in the records of the Commission:

“The Civil Service Commission has completed the investigation of the charges involving nine Commanding Officers of the Police Department as filed by the Commissioner of Police. The unanimous decision of the investigation in each case is: [name of each plaintiff] Guilty as charged — discharged from the service, [names of two captains] Guilty as charged — evidence not sufficient to warrant discharge. A written decision, including the findings of the Commission, is now on file in the case of Walter F. Healy and written decisions in all of the other cases where discharge is ordered will be filed in due course.”

Defendants omitted this finding and decision from their original return. They argue that this finding and decision is an “announcement” or a “press release.” We find that there is nothing* in the return to substantiate such a designation. Another document on file on June 16, 1944 was the following, signed by the secretary of the Commission and addressed to the commissioner of police:

“The Commission this date found the following members of the Police Department guilty of the charges indicated, and ordered that they be discharged from the service of the City of Chicago: [Here are listed the names of plaintiffs.] Sec. 3 — Conduct unbecoming a police officer or an employe of the Police Department; Sec. 5 — Neglect of Duty. The Commission on this date found the following members of the Police Department guilty of the charges as indicated in the foregoing* cases, but found the evidence insufficient to warrant their discharge from the service of the City of Chicago: [Here are listed the names of two captains.] These cases were heretofore taken under advisement.”

The secretary of the Commission, who had charge of the records, testified that the quoted finding was the only written finding on file on June 16, 1944, and that the two documents quoted were the only ones on file on that date. It is apparent that they contain no facts showing upon what the order of discharge was based.

The official minutes of the meeting of the Commission on June 16, 1944 are as follows:

“The Civil Service Commission met in regular session, 208 City Hall, at 2 p. m. Present, Commissioners Gregory, Clarke and Cashin. Minutes of June 15 read and approved. Findings and decisions approved. Findings rendered by the Commission upon investigation of charges filed by the Comr. of Police in the following cases heretofore taken under advisement: [Here are listed the names of plaintiffs.] Ordered discharged from the service of the City of Chicago (Buie 389: — Section 3 — Conduct unbecoming a police officer or an employe of the Police Department; Section 5 — -Neglect of duty); [Here are listed the names of two captains.] Found guilty as charged, but evidence insufficient to warrant discharge from the service of the City of Chicago.”

The minutes of the Commission of June 16, 1944, the finding and decision of June 16,1944 and the certification thereof on the same day are substantially the same. None of them contains any jurisdictional facts. A finding of “Guilty as charged” is a nullity. Funkhouser v. Coffin, 301 Ill. 257.

In an attempt to obviate the insufficiency of the finding and decision on file on June 16, 1944, the date of discharge, defendants included in their return, dated back to June 16,1944, a lengthy purported “finding and decision” which actually was not written up' and filed with the Commission until June 22, 1944 in the Harrison case, June 20,- 1944 in the Healy case, June 20, 1944 in the Carian case, June 28, 1944 in the Klatzco case, June 29, 1944 in the Connelly case and June 24,1944 in the Drury case. A discharge cap only be ordered after a finding and decision is on file, approved and eeritfied to the appointing officer. Manifestly, if no finding and decision is on file, it cannot be certified to the appointing officer. The return shows that the purported finding and decision made and filed with the Commission in each case after June 16, 1944 was not in existence on June 16,1944. The minutes of the Commission of that date show that it was not approved and was not the finding and decision certified to the Commissioner of Police on that date. In fact, the purported finding and decision in each case made and filed after June 16, 1944 was never certified to the appointing officer. The discharge of each plaintiff was ordered and executed on June 16,1944. The jurisdiction of the Commission was then exhausted. The subsequent preparation, typing and filing of the other documents purporting to be a finding and decision, was outside the limits of the jurisdiction of the Commission. Defendants argue that the action of the court in confining the return of the proceeding to and including June 16, 1944, was improper. We agree that the return should not have been limited. However, the error was harmless, as the writ did not stop short of the limits of the Commission’s jurisdiction, but was co-extensive with it.

It would appear that defendants argue that the Commission may pronounce its finding and decision orally, by way of announcement, or by a brief record showing a conclusion of “guilty,” certify such “finding and decision” to the appointing officer, thus discharging the employee, and whenever thereafter it chooses, perhaps when a writ of certiorari is served, make up and file a formal written finding and decision. This practice was followed in the Henry Farmer case, 329 Ill. App. 326. It is obvious that sec. 12 of the Civil Service Act and sec. VI of the rules of the Commission contemplates only one finding and decision by the Commission, and that this finding and decision must be entered prior to its certification to the appointing officer. We agree with plaintiffs that the purported “finding and decision” entered in each case subsequent to June 16, 1944 is no part of the return and is not responsive to the writ, and that the finding and decision actually entered on June 16,1944 is a nullity. For that reason the trial judge was right in quashing the return.

Certiorari does not give the complaining-party an opportunity to have the case retried. As , long as the Civil Service Commission had jurisdiction and followed the form of proceedings legally applicable, the court is without power to disturb the finding and decision, where there is evidence which fairly tends to sustain it. To review the evidence would be the exercise of executive powers which the constitutional separation of the departments of government precludes the courts from exercising. The purpose of the writ is in all cases to prevent injustice. However, the power to remove from office is not an arbitrary one. The discretion to be exercised by the Commission is not outside of the power of the court to control. It is subject to judicial. review. While ordinarily the sufficiency of the evidence is not reviewed, an exception exists when the question is whether jurisdictional facts were or were not proved. Where it is claimed that there is no competent evidence to support the finding of the Commission, the evidence upon which it acted should be reviewed by the court to determine that question. Such a review is not a weighing of the evidence, but a review of a question of law. All of the “findings of guilty” drawn up and filed after June 16, 1944, fell within either of two categories: (a) the failure to enter in the station complaint books written communications received from the commissioner of police, and (b) failure to suppress gambling. Each plaintiff had an outstanding record in the police department. The records of these officers in the department are shown under the heading of Creditable Mentions and Extra Compensations for meritorious service. The evidence is unchallenged that no district commander at any time in the City of Chicago entered in the complaint books written communications received by him from the police commissioner. Such communications demanded and received special attention. They were kept in separate books and records in conformance with the long established practice and procedure of the department. Rule 31 of the rules and regulations of the department of police provides how written communications from the commissioner (all confidential) shall be handled by the district commander. It provides that investigation of complaints directed through the commissioner’s office shall' be conducted by citizens’ dress men. It was clearly an injustice to find these men guilty of neglect of duty, or conduct unbecoming a police officer because of failure to enter communications from the commissioner in the station complaint books, when such had never been the practice. The commissioner of police and the supervising captains knew that communications from the commissioner were not being entered in the station complaint books. It would be an entrapment for the commissioners of police to charge them with dereliction of duty in failing to make such entries without first informing them of his interpretation that the rules of the department required such entries.

The supplemental return contains a transcript of the testimony. The commissioners certified that the supplemental return “is a true, full and complete supplemental record of the proceedings had in the matter of the trial or hearing upon written charges filed before the Commission against plaintiff, Thomas Harrison, as the said supplemental record appears on file in the offices of the Civil Service Commission of the City of Chicago, . . . against the plaintiff. . . . ” An examination of the transcript shows that no evidence was offered to support the charges of failure to suppress gambling. The evidence shows that where notice was given of alleged gambling activities, investigations were made immediately, which resulted either in (a) a report filed with the commissioner finding no gambling activities, or (b) raids, arrests, investigation and enforcement by arrest and prosecution, or (c) the maintenance of continued surveillance with reports from those assigned being made directly to the police captain in charge of the district. The return shows that each plaintiff, through his district personnel, maintained vigilant and constant surveillance of all suspected or reported gambling locations in order to prevent violation of all gambling laws and ordinances, including “sneak,” “one-day stand” and other “secret” operations, and the pursuit by the police in these commands of handbook operators who shifted their operations from place to place. The surveillance maintained was clearly established not only by the testimony of plaintiffs and their personnel, but also by the testimony of assistant state’s attorneys and their investigators, together with the personnel from the gambling detail of the office of the commissioner of police.

In Funkhouser v. Coffin, 301 Ill. 257, the court said (261):

“Appellee has a right to a judicial review of the proceedings, ‘and the record must show that the board acted upon evidence and contain the testimony upon which the decision was based, in order that the court may determine whether there was any evidence fairly tending to sustain the order. ’ Tazewell Coal Co. v. Industrial Com., 287 Ill. 465; Gloss v. Woodward, 202 id. 480.”

See also Carroll v. Houston, 341 Ill. 531; Jarman v. Schuyler County Board of Review, 345 Ill. 248; Kilroy v. Retirement Board, 297 Ill. App. 261; Shilvock v. Policemen’s Retirement Board, 301 Ill. App. 84; Tazewell Coal Co.v. Industrial Commission, 287 Ill. 465; and T. J. Forschner & Co. v. Industrial Board, 278 Ill. 99. This subject is considered in People ex rel. Fosse v. Allman, 329 Ill. App. 296.

Defendants contend that they are not required to return a transcript of the testimony. We hold that where the action of the Commission in discharging an employee is challenged on the ground that the juris-¿fictional requisites were not met, as in the instant cases, that the record must include the transcript of the testimony. The return and supplemental return in each of these cases not only fails to prove the charges, but it disproves the charges.

Bach plaintiff was found guilty of charges which were admittedly withdrawn, of charges not made and of which he had received no notice and as to which the record contains no evidence. In addition to the fact that the transcript of the testimony in the supplemental return does not show failure to suppress gambling, the purported finding and decision discloses that in the Harrison case 69.77 per cent of the gambling incidents recited therein were not contained in the specification of charges; similarly, in the Cartan case the purported finding and decision discloses that 59.77 per cent of the gambling incidents recited therein were not contained in the specification of charges ; similarly, in the Drury case the purported finding and decision discloses that 74.2 per cent of the gambling incidents recited therein were not contained in the specification of charges; similarly, in the Klatzco case the purported finding and decision discloses that 50.98 per cent of the gambling incidents recited therein were not contained in the specification of charges; similarly, in the Healy case the purported finding and decision discloses that 60 per cent of the gambling incidents recited therein were not contained in the specification of charges; similarly, in the Connelly case the purported decision and finding discloses that 42.85 per cent of the gambling incidents recited therein were not contained in the specification of charges; and similarly, in the Barry case the purported finding and decision discloses that 53.3 per cent of the gambling incidents recited therein were not contained in the specification of charges. While the members of the Commission undoubtedly acted in good faith in what they considered the proper performance of their duties, in the condition of the record as to the findings we are of the opinion that justice requires an affirmance of the judgments.

We turn to a consideration of the complaint for mandamus filed by Lieutenant William Drury. After the judgment in the certiorari case quashing the return of the Commission, Lieutenant Drury filed a complaint for mandamus, praying for an order to compel the defendants to permit him to take a promotional examination for captain. A promotional examination for captain had been held in September 1944. Drury, a lieutenant, had been discharged by the order of the Commission on June 16, 1944. On July 12,1944 he had demanded of the Commission that he be permitted to take the examination when held. On July 14, 1944 he was informed that he would not be permitted to take the examination. Defendants, answering the complaint for mandamus justified their refusal to permit Mm to take the examination because he was not a lieutenant of police at the time. They deny that he has shown by his complaint a clear legal right to the writ of mandamus. The writ directs the defendants to hold a promotional examination for Drury and to place his name, if he passes the examination, in the position on the eligible register, or list, of successful candidates in the September 1944 examination, to which Ms grade and examination will entitle him to be placed, with the same effect and the same relative position as if he had taken the September 1944 examination. Defendants point to sec. 9 of the Civil Service Act providing that all examinations for promotion shall be competitive among such members of the next lower rank as desire to submit themselves to such examination. They also call attention to sec. 2 of Eule 5 of the Civil Service Commission that no person shall be eligible for promotion from a position in any rank or grade to fill a vacancy in the next higher rank unless the position in which he is employed at the time of examination is in the same branch and class of service as the position to be filled, and unless such person is at the time of examination actually employed in such branch and class, or is on leave of absence, or is eligible for reinstatement.

Defendants state that at the time of the holding of the examination in September 1944, Lieutenant Drury was not an employee of the City of Chicago, he was not on leave of absence, he was not in the next lower rank, and that he was then a stranger to the classified service. They rely on the principle that mandamus is not a writ of right, but an extraordinary remedy granted only in the discretion of the court and only upon the showing of a clear legal right to the relief sought. They assert that Drury completely failed to show that he has a clear legal right to the writ of mandamus ; that the examination had been given when he filed his complaint for mandamus; that the questions given in the written examinations were already common knowledge among the members of the police department; that were the Commission to give him the same examination he would have a clear advantage over the lieutenants who had taken the examination; that were he given an examination embodying a different set of questions, the examination would not be competitive; that with the issuance of the writ of mandamus compelling the giving of an examination to him necessarily will disrupt the public service; and that those who have successfully passed the examination and are on the eligible register, will, if Drury successfully passes his examination, be disturbed in their places. Plaintiff points out that he served in the classified service of the city as a member of the police department for 20 years; that his service has been characterized by six grants of extra compensation for meritorious conduct and six other citations for exemplary and meritorious conduct; that he had received the Lambert Tree medal for exceptional eour-age as a police officer; that he has been granted the Chicago Tribune award for courageous conduct in the course of his duty as a police officer; that he had steadily progressed from, the position of patrolman to that of sergeant and to that of lieutenant; that in December 1942 the commissioner selected him from among other available lieutenants, to command the 38th police district in the capacity of acting captain; that he served in that capacity until July 1, 1943; that he was again reappointed to the position of acting captain of the same district on July 15,1943 and remained in that position until October 1943, when he was suspended; that the commissioner did not file charges against him with the Civil Service Commission until December 17, 1943; that the hearing on the charges was not concluded until June 16, 1944, when the Civil Service Commission entered the finding or decision involved in the appeals of the certiorari eases; that plaintiff instituted certiorari proceedings, seeking to quash the proceedings of the Commission by which he had been discharged; that in the meantime he learned that the Commission was about to give a promotional examination to lieutenants of police to test their capacity to be advanced to the position of captain of police; that he demanded of the Commission the right to take the examination; that on July 14,1944 the Commission informed him that he could not take the examination; that the examination was given in September 1944; that plaintiff was not permitted to take it; and that the Commission prepared and posted a list of successful candidates. Thereupon, plaintiff filed his petition for mandamus. We have held that the action of the Commission in ordering the discharge of Lieutenant Drury was invalid. In our opinion it would be unjust to deprive him of an opportunity to take an examination for promotion to captain of police which he could have taken had the invalid order not been entered against him. We find that Lieutenant Drury has a clear legal right to an examination for promotion to captain of police and that the judgment should be sustained.

For the reasons stated, the judgment of the superior court of Cook county is affirmed in each of the following certiorari cases: Gen. No. 43402, 43403, 43411, 43412, 43413 and 43414. The judgment of the superior court of Cook county is affirmed in the mandamus case Gen. No. 43388. Pursuant to the stipulation in People ex rel. Barry v. Gregory, No. 43324, this opinion will be filed in that case and a judgment of afermance entered therein as in the other certiorari cases. This opinion will be filed in each of the above mentioned cases. The clerk will enter a separate judgment in each case in accordance with this opinion.

Judgments affirmed.

Kiley, P. J., and Lewe, J., concur.


text:
    Columbia Casualty Company, Appellant, v. Edward Mitchell, David Jaynes, Individually and as Administrator of Estate of Hattie Nesbit, Deceased et al., Defendants. Edward Mitchell, Appellee.
    Gen. No. 43,363.

      opinion filed June 26, 1946;
    rehearing denied September 6, 1946; released for publication September 9, 1946.
    Vogel & Bunge, for appellant; George C. Bunge and Frank H. Masters, Jr., of counsel; Joseph F. Elward, for appellee.
   Opinion by

Presiding Justice Kiley.

Not to be published in full.


text:
    Henry Farmer, Appellant, v. Civil Service Commission of City of Chicago et al., Appellees.
    Gen. No. 43,540.
    opinion filed June 26, 1946;
    rehearing denied September 6, 1946; released for publication September 9, 1946.
    Henry C. Ferguson, for appellant; Barnet Hodes, Corporation Counsel, for appellees; J. Herzl Segal, Head of Appeals and Review Division, Fred V. Maguire, Carl H. Lundquist and L. Louis Harton, Assistant Corporation Counsel, of counsel.
   Opinion by

Justice Burke.

Not to be published in full.


text:
    John T. O’Connell et al., Appellees, v. California Avenue Building Corporation, Appellant.
    Gen. No. 43,280.
    opinion filed June 26, 1946;
    rehearing denied September 18, 1946; released for publication September 19, 1946.
    H. J. Rosenberg and Arthur Grossman, for appellant; McKinley & Price, for appellees; William McKinley and Paul E. Price, of counsel.
   Opinion by

Justice Lewe.

Not to be published in full.


text:
    Katherin Rehnbloom, Appellee, v. City of Berwyn, Appellant.
    Gen. No. 43,302.

      opinion filed June 26, 1946;
    rehearing denied September 18, 1946; released for publication September 19, 1946.
    William J. Kriz and Julius H. Selinger, for appellant; Alfred Roy Hulbert, for appellee.
   Opinion by

Justice Lewe.

Not to be published in full.


text:
    In re Benjamin Hershon, Deceased. Anne Hershon, Appellee, v. Maxine Hershon, Adminis-tratrix of Estate of Benjamin Hershon, Deceased, Appellant.
    Gen. No. 43,326.
    opinion filed June 26, 1946;
    rehearing denied September 18, 1946; released for publication September 19, 1946.
    Myer H. Gladstone and Julius Goldfine, for appellant; Ringer, Reinwald & Sostrin, for appellee; Philip E. Ringer and Morris Sostrin, of counsel.
   Opinion by

Justice Lewe.

Not to be published in full.


author: Mr. Justice Matchett

text:
    Virgie Carter, Appellant, v. Nehi Beverage Company. United States Fidelity and Guaranty Company, Appellee.
    Gen. No. 43,692.
    Opinion filed September 9, 1946.
    Released for publication September 24, 1946.
    John O’C. FitzGerald, of Chicago, for appellant.
    Eugene P. Kealy, of Chicago, for appellee.
   Mr. Justice Matchett

delivered the opinion of the court.

In the trial court this proceeding was in garnishment by plaintiff, pursuant to Ill. Rev. Stat., ch. 73, par. 1000, § 388 [Jones Ill. Stats. Ann. 66.1063], on a judgment for $3,000 and costs, rendered by default in the superior court of Cook county February 21, 1944, in a suit, to recover damages for personal injuries, sustained by plaintiff June 12, 1939. The action was brought against Nehi Beverage Company of Elgin, a manufacturer, bottler and distributor of carbonated beverages, with offices at 15 North Union street, Elgin, Illinois. The complaint of Yirgie Carter charged that Minnie Handelman, aunt of plaintiff, conducted a wayside lunch business at Wauconda, Illinois; that the defendant conducted its business of manufacturing, bottling and distributing carbonated beverages at the above address at Elgin, Illinois; that Nehi sold and delivered to Minnie Handelman at Wauconda a certain carbonated bottled beverage known as “pop”; that plaintiff, then a minor, was directed by her aunt to place these bottles of “pop” in a tank containing ice; that while so doing with all due care on her part, one of the bottles exploded, injuring her severely, and all through the negligence of defendant. Executions issued on the judgment to the sheriffs of Cook and Kane county and were in each case returned “No Property Found.” The proceeding in garnishment followed.

At the time of plaintiff’s injuries, the Nehi company carried an indemnity policy issued by the United States Fidelity & Guaranty Company. The policy issued October 6, 1938, and was to expire October 6, 1939. It was a public liability policy identified as “PM-51140.” The garnishor filed interrogatories, which the garnishee answered. The answers in substance say that the garnishee owes nothing to the Nehi company for the reason that the injury to plaintiff, for which judgment was rendered February 21, 1944, was not covered by the' policy. A copy of the policy was' made a part of the pleadings. The complaint filed in the original suit was put in evidence. After an examination of the answers and the evidence, the trial judge was of opinion nothing was due from the guaranty company to Nehi and discharged the garnishee. This appeal by plaintiff followed.

The question for decision is whether the trial judge erred in holding nothing was due and discharging the garnishee. We must examine the policy and the pleadings in the light of facts not disputed.

The policy is a form of liability policy known as ‘ ‘Manufacturers ’ Public Liability Policy. ’ ’ Division 1 of the policy states the insurance to be provided. The first part limits it to claims resulting from injuries sustained by persons, other than employees, who are upon the premises or ways of the Nehi Beverage Company or immediately adjacent thereto. The second part specifically covers injuries sustained “elsewhere than upon the premises described in said Schedule, caused by employees while engaged in the conduct of the Assured’s business.” It is clear the injury plaintiff received is not covered in either class. If, by a strained construction, we could succeed in including plaintiff’s injury in one of these classes, we are confronted by the exclusion clause which follows; the policy says:

“The Foregoing Agreements Are Subject To The Following Conditions:

“Condition A. This policy shall not cover loss from liability for, or any suit based on, injuries or death: ( <

“(4) Caused by or claimed to have been caused by the consumption or use of any article or product manufactured, handled or distributed by the Assured" elsewhere than upon the Assured’s premises.”

This clause seems to be clear and unambiguous. We find nothing in it that requires construction. We are not permitted to make the contract for the parties. That was for Nehi to do when it purchased this indemnity.

Plaintiff invokes the unquestioned rule that a contract of insurance for indemnity must be liberally construed in favor of the assured, so as not to defeat without a plain necessity a claim for indemnity. She cites Forest City Ins. Co. v. Hardesty, 182 Ill. 39, 46, 47, and Stone v. Tri-State Mut. Life Ass’n, 311 Ill. App. 624, 629. There is no doubt of the validity of that rule in the construction of insurance contracts. Here, by the plain provisions of the contract, this particular occurrence is excluded. When there is no ambiguity to construe, the rule is not applicable. A large number of cases so holding are cited in the brief. It will be sufficient to cite Coons v. Home Life Ins. Co. of New York, 368 Ill. 231; Moscov v. Mutual Life Ins. Co. of New York, 387 Ill. 378; United States Fidelity & Guaranty Co. v. Guenther, 281 U. S. 34. We have no right or power to make a new contract for the parties, and the cases hold that in an action of this kind the plaintiff cannot recover against the garnishee if the assured is not entitled to indemnity, under the policy. Rodenkirk v. State Farm Mut. Automobile Ins. Co., 325 Ill. App. 421; Jones v. Manufacturer’s Casualty Ins. Co., 313 Ill. App. 386, 390. The appellant has not filed any reply brief.

The judgment will be affirmed.

Affirmed.

The foregoing opinion prepared by Mr. Justice Matchett is hereby adopted as the opinion of the court, and the judgment is entered in accordance therewith.

Affirmed.

O’Connor, P. J., and Niemeyer, J.