text:
    Ollie Carey, et al., Plaintiff-Appellant, v. I. J. Kayle & Associates, Defendant-Appellee.
    Gen. No. 53,071.
    First District.
    March 20, 1970.

      Leonard E. Newman, of Chicago, for appellant.
    Harry Jaffe, of Chicago, for appellee.
   MR. JUSTICE SMITH

delivered the opinion of this court.

The facts are relatively simple but as is often the case, in dispute. Fortunately, as a reviewing court, it is not for us to resolve disputes of fact if the resolution by the court below finds support in the evidence, i. e., its resolution is not against the manifest weight of the evidence. Wilke Metal Products v. David Architectural Metals, 92 Ill App2d 265, 236 NE2d 303.

We can posit the facts generally and then hone in on one of the disputed resolutions by the trial court, for if it can stand, such will be determinative of this appeal. Such question or dispute involves the timeliness of notice of breach of warranty given by plaintiff as buyer to defendant as seller involving wire for a home intercommunications system. The statute in effect at the time, now superseded by the Commercial Code, was § 49 of the Uniform Sales Act (Ill Rev Stats 1961, e 121%, § 49) which read:

“In the absence of express or implied agreement of the parties, acceptance of the goods by the buyer shall not discharge the seller from liability in damages or other legal remedy for breach of any promise or warranty in the contract to sell or the sale. But, if, after acceptance of the goods, the buyer fails to give notice to the seller of the breach of any promise or warranty within a reasonable time after the buyer knows, or ought to know of such breach, the seller shall not be liable therefor.”

Plaintiff, it appears, early in 1960 was desirous of having a high fidelity radio and intercommunication system installed in a house he was then building for himself and he purchased from defendant the necessary wiring, upon being assured that it was of a type suitable for the contemplated installation. After such was had, according to plaintiff, the system never worked — there was feedback and squealing — and about a year and a half later, June 1961, he filed suit against the manufacturer, the distributor and the installer — but not the defendant. The manufacturer and distributor were subsequently dismissed after an apparently satisfactory settlement had been reached, and defendant was then made a party. This was on October 29, 1963. The amended complaint alleged that the malfunction was caused by the wire.

This was not the first contact plaintiff had had with defendant subsequent to installation. Plaintiff testified that he sent a letter to defendant on March 27, 1961, concerning the malfunction, but we do not have this letter, although we do have the letter back from defendant, advising plaintiff that the wire he purchased was suitable for his system. Plaintiff says that he first thought it was the fault of the set itself and that it was not until after he had filed suit that he learned of the possibility that the malfunction might be caused by the wire. It was then that he so advised defendant by letter, which, as we have said, we have not been favored with. As we have seen, matters coasted along until October 1963, before defendant was contacted again concerning its responsibility, and this time by summons, a very direct form of notice, indeed.

There are other facts, some disputed, some not, and other points of law raised on this appeal, but, if the notice was not timely — “within a reasonable time after the buyer knows, or ought to know of such breach” — as the court below held, it is determinative of this appeal by plaintiff and we need not take up such other questions.

The purpose of notice called for in the statute is obvious — a seller should know in good time the complaint of the buyer because the sooner he knows, the better he will be able to rectify the condition, if in fact there is a breach, the determination of which is another reason for the requirement of timely notice. Here, by the time defendant was served with summons, the wire it had sold had been replaced, thus it could neither determine whether the wire it had sold was at fault, and if it was, given a chance to minimize its liability by appropriate action.

As we have seen, the trial court held that the notice required under the statute was not given within a reasonable time. To be sure, plaintiff testified as to various conversations and points to his letter of March 27, 1961, which, he says, fulfilled the requisites of notice — and that such notice was timely because it was only then that he became aware of the possibility that the wire might be at fault. Again, the only trouble with this assertion is that we do not know the contents of the letter — and without knowing that how would one know whether it was in fact the notice called for by § 49. However, defendant disputes all this, and says that its first knowledge of any malfunctioning that might be attributed to the wire came to it when it was served with summons — some three years and nine months after the sale. The very best that can be said at this juncture for plaintiff’s argument as to timeliness is that the evidence presented a question of fact and its resolution by a finding that the notice was not timely is most assuredly not against the manifest weight of the evidence. It is not for us to say which way we would have gone had we been the trier of this fact. We review errors of law only and it is not error for a trial court to supply an answer when a question is raised as to what the facts really are if there is evidence to support the answer.

Having decided that the finding of untimeliness was properly reached, we need not take up the other matters complained of, such as the further finding that there was no implied warranty. Plaintiff’s further argument that the defense of no notice or untimely notice is an affirmative defense is answered by a rereading of § 49 set forth above. Notice by the buyer is an integral part of his cause of action. If this is so, then by definition it cannot be an affirmative defense. The judgment appealed from is affirmed.

Affirmed.

CRAVEN, P. J. and TRAPP, J., concur.


source: Caselaw Access Project

author: ALLOY, J.

license: Public Domain

text:
    Margaret F. McVey, Plaintiff-Appellant, v. Richard Discher, d/b/a Elston Enco Service Station, et al., Defendant-Appellee.
    Gen. No. 53,443.
    First District.
    March 20, 1970.

      Head, Valentine and Purcell, of Chicago (Edward C. Purcell, of counsel), for appellant.
    Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Chicago (D. Kendall Griffith and Paul L. Pawlowski, of counsel), for appellee.
   ALLOY, J.

Plaintiff Margaret F. McVey sustained personal injuries as a result of a collision when the automobile in which she was riding was struck in the rear by a truck, owned by Harold Brown, d/b/a O’Brien Fuel Company, which was also proceeding in an easterly direction at the intersection of Cicero Avenue and Peterson Avenue in Chicago, Illinois. Plaintiff sustained personal injuries and filed suit against Harold Brown, the owner, and George Reitz, the driver of the truck. After the action was filed, plaintiff sent interrogatories to defendant, and in answer to the question as to whether an inspection was made of the braking system on the truck and the conveyor apparatus, plaintiff answered that Elston Eneo Service Station, 4916 North Elston Avenue, Chicago, Illinois, had made such inspection. The interrogatories also revealed that another service station in Chicago made an Illinois safety inspection on the truck, and another garage also had some knowledge of the particular truck and the brakes. Plaintiff then filed an amended complaint naming as defendants Harold Brown and George Reitz, Richard Discher, d/b/a Elston Eneo Service Station, and the other garage and service station, as well as the truck corporation. This appeal involves only defendant Richard Discher, d/b/a Elston Eneo Service Station.

In Count II of the amended complaint it is alleged that Elston Eneo Service Station “maintained and inspected the brakes and all mechanical parts of said vehicle owned by defendant Harold Brown.” It charged that the Elston Eneo Service Station failed to properly maintain the braking mechanism, although it knew or should have known, that the brakes were in defective condition; failed to repair certain mechanical parts of the defective brakes; and improperly inspected or improperly repaired the brakes. It was further alleged that as a proximate result of one or more of the acts or omissions plaintiff was injured. Defendants Harold Brown and George Reitz answered the complaint and admitted that Elston Eneo “maintained and inspected” the brakes. They denied that this was done negligently. Defendant Richard Discher, d/b/a Elston Eneo Service Station, denied all the allegations.

Thereafter, defendant Discher, d/b/a Elston Eneo Service Station, moved for summary judgment alleging that he did not “inspect, repair, or maintain or do any work in connection with the braking mechanism of the truck in question prior to December 5, 1964,” the date of the accident. In the affidavit attached to the motion, Discher simply stated that he did not perform any work on the brakes and that the servicing of the vehicles of O’Brien Fuel Company consisted of providing gasoline and oil, performing certain tune-ups and lubrication jobs and that the only brake work Discher or any of his employees performed was on August 3, 1964, when some repairs were done to a hydraulic brake system as opposed to an air-brake mechanism.

Plaintiff replied to the motion for summary judgment, alleging that Harold Brown had answered, in both his interrogatory answer and his answer to the complaint, that Discher had inspected the brakes before December 5, 1964. Plaintiff also attached the discovery deposition of Harold Brown. In this deposition Brown stated that Discher and he had an oral agreement that Brown would bring his trucks in every thousand miles and Discher would do what was necessary to service them. In his deposition Brown was asked whether Discher was to do “whatever work was necessary to keep your trucks in top-flight condition” and answered “that’s right.” It was developed in the deposition that as Discher would do the work on the trucks he would send an invoice to Brown listing the work he had actually performed, but defendant Brown stated that if Discher checked something on the truck, such as the brakes, and they were working properly, this would not show up in the invoice as it was merely an inspection with no work performed. The deposition indicated that Discher was to inspect the brakes on the trucks brought in by Brown as part of the arrangement between Brown and Discher, which had been in existence for six or seven years.

The deposition of defendant Brown also indicated that he had inspected the air brakes of the truck involved shortly after the accident. He observed that there was an air reserve tank which was filled with compressed air each morning before the trucks went out and that the pet cock on such tank was broken off even with the tank. The driver of the truck had to plug this hole with a piece of wood in order to be able to drive the truck to a garage to be repaired. The break in the pet cock was a fresh break. The deposition also showed that immediately in front of the air tank was a 50-gallon gasoline tank for the truck which was held onto the truck by two metal straps. The tank was used as a running board on the driver’s side so that whenever a driver would get into the truck he would step on the gas tank. Defendant Brown in his deposition stated that he noticed after the accident that one of the straps holding the gas tank was broken, but he could not say if the broken strap was a fresh break.

On review, the question to be determined is whether the granting of summary judgment in favor of defendant, d/b/a Elston Eneo Service Station, was proper. The parties to this action agree that the purpose of summary judgment is to determine whether there is a genuine triable issue of fact which must be passed upon. As stated in Watkins v. Lewis, 96 Ill App2d 182, 237 NE2d 830 (at 185):

“ ‘If the pleadings, discovery depositions and exhibits, present a genuine issue as to any material fact, summary judgment should not be granted. Halloran v. Belt Ry. Co. of Chicago, 25 Ill App2d 114, 166 NE2d 98. The right of the moving party to summary judgment must be free from doubt. Miller v. Owens-Illinois Glass Co., 48 Ill App2d 412, 199 NE2d 300.’ ”

Under the statutes in this State (1967 Ill Rev Stats, c 110, § 57 (3)) it is specified that a judgment may be entered forthwith if the pleadings, depositions, admissions on file, together with affidavits, show that there is no genuine issue of any material fact even though there is an issue as to the amount of damages. As stated in Slone v. Morton, 39 Ill App2d 495, at 498, 188 NE2d 493:

“ ‘The purpose of the summary judgment procedure is not to try an issue of fact, but rather to determine whether there is an issue of fact ... If there is a material issue of fact, it must be submitted to the jury. The right of the moving party to a judgment should be free from doubt.’ ”

While summary judgment procedure is to be encouraged, it is not to be used if there is a genuine issue of fact, or if fair-minded persons could draw different inferences from facts not in dispute. In such case a triable issue exists (Ruby v. Wayman, 99 Ill App2d 146, 150, 240 NE2d 699).

Affidavits and pleadings also are to be construed as against the party seeking summary judgment for the reason that summary judgment and triable issues are incompatible (Di Battista v. Centennial Ins. Co., 52 Ill App2d 84, 86, 201 NE2d 466). In the Di Battista case, the court pointed out that affidavits in support of the motion are strictly construed while those in opposition receive a liberal construction. The benefit of the doubt goes to the party resisting the motion, and if there are any triable issues the motion is to be denied.

With respect to the case before us, it appears that the record justifies a conclusion that a genuine issue of material fact existed in the instant case. The amended complaint of plaintiff alleged that defendant Richard Discher, d/b/a Elston Eneo Service Station, failed to maintain brakes on the truck although he knew or reasonably should have known that the brakes were defective. Defendant in his motion for summary judgment merely denied that he inspected, repaired or maintained the brakes in question. The interrogatories of Harold Brown, defendant, and the deposition of defendant Harold Brown also showed that there was an agreement with Discher that Discher was to inspect the brake systerns and make the necessary repairs. Whether Discher, in fact, inspected the brakes or had a duty to inspect them under his agreement with Brown is a material fact in the cause before us.

It is contended by defendant Discher that the deposition of Harold Brown showed that the accident was a result of the breaking of one of the straps holding the gas tank and that this caused the tank to strike the air-brake tank behind it knocking off the pet cock, and thus causing a loss of air pressure in the brake system. While it is doubtful that this question could even be raised in this summary judgment proceeding, since the motion was based on the ground that defendant did not inspect or repair the brakes, there was still a fact question to be resolved as to whether the gas tank strap broke before or after the collision. The only factual material which appears from the affidavit of defendant Brown is that after the accident the gas tank strap was broken, and the pet cock on the air-brake tank, which was just behind the gas tank, was broken off. There is no showing as to whether the tank strap broke first causing the gas tank to hit the air brake tank or whether the air brakes failed first causing the collision which might in turn have caused the gas tank strap to break. Under such circumstances it is clear that there was a material question of fact as to whether the failure of the brakes could have caused the accident. Under such circumstances it was improper to grant the motion for summary judgment on the basis of the record before us.

The order of the Trial Court granting summary judgment to Richard Discher, d/b/a Elston Eneo Service Station, is reversed and this cause is remanded to the Circuit Court of Cook County with directions to proceed in accordance with the views expressed in this opinion.

Reversed and remanded.

RYAN, P. J. and STOUDER, J., concur.


text:
    Edward J. Suess, Defendant-Appellant, and Royce Perkins, Defendant, v. Richard Jousma, et al., Plaintiffs-Appellees.
    Gen. No. 53,529.
    First District.
    March 20, 1970.
    Rehearing denied April 27, 1970.
    Aaron Cohen, of Chicago, for appellant.
    Jesse H. Brown, of Chicago (Silverstein & Stein, of counsel), for appellees.
   ALLOY, J.

Four plaintiffs, Richard Jousma, Roy Bergunder, Edward Gabriel and James Clark, brought an action against Royce Perkins and Edward J. Suess, individually, for a total of $10,500. Plaintiffs alleged that the defendants represented to them that the defendants owned a transferable working interest in the Thelma I. Rodgers Oil Well #2 in Richland County, Illinois. The complaint alleged that in reliance on the statements made by defendants, plaintiffs purchased a working interest in Well #2 and that plaintiffs made the following payments to the defendants: Jousma — $6,000; Bergunder — $1,000; Gabriel — $2,500; and Clark — $1,000. Plaintiffs alleged that the sale took place on or about January 16, 1968, but shortly after the purchase plaintiffs discovered that the statements made by defendants were false, and that defendants actually owned no interest in Rodgers Well #2 which they could sell to plaintiffs. The complaint also alleged that defendants knew that the statements they made as to Rodgers Well #2 were false and were made wilfully and maliciously with the intent to deceive plaintiffs and induce them to pay the total sum of $10,500 referred to. The complaint alleged that plaintiffs rescinded the transaction as soon as they learned that the statements by defendants were false and that defendants were notified of such rescission. It was also alleged that after defendants learned of the rescission, defendants agreed to return the money to plaintiffs but that they have failed to do so and, thus, plaintiffs are entitled to their judgment. The plaintiffs also allege that malice was the gist of the action.

In August of 1968, plaintiffs filed a motion for summary judgment and attached to the motion an affidavit of Richard Jousma, one of the plaintiffs. The affidavit stated that plaintiffs had requested a return of the money as set forth in the complaint and that the two defendants had agreed to pay the money. Both had signed four documents in which they agreed to repay the various sums to the four plaintiffs. A copy of each of the documents was attached to the motion and affidavit and it was stated that the signatures on the documents were the true and correct signatures of Suess and Perkins. Each of the agreements was in the form used as to Jousma, which was as follows:

“January 31,1968
“I hereby promise to return a check for $6,000, Six Thousand Dollars to Richard Jousma for the #2 location on the Thelma I. Rodgers Lease.
“Said check for full amount (Six Thousand Dollars) shall be made out & sent to Richard Jousma, 5901 Archer Ave., Chicago 38, HI. & mailed in the week ending February 3rd, 1968.
/s/ ROYCE PERKINS
Subject to Edward J. Suess’s signature
/s/ EDWARD J. SUESS”

It was recited in the affidavit that defendants had paid no part of the money and there was also attached to the affidavit a title search of the records of the oil company in Richland County. The attached exhibits disclosed assignments describing Edward J. Suess and Royce Perkins as co-partners, d/b/a Sandy Oil Co.

Defendant Suess filed an affidavit in opposition to the motion for summary judgment. In such affidavit he stated that he knew only of the investment of Jousma and that Perkins, the other defendant, carried on all negotiations and all money for the purchase was paid to Perkins. Suess stated that if the other three plaintiffs invested in Rodgers Well #2, that they purchased because of representations made by Jousma. Suess stated that he never met Bergunder, Gabriel or Clark and had not even talked to them prior to the date of the sale. He also stated that he received none of the money personally from the sale of the interest in the well nor any financial benefit from the sale. He also stated that he believed that Jousma and Gabriel purchased Rodgers Well #2 from Sandy Oil Company, an Illinois corporation, in which he, Suess, might have been secretary-treasurer, but does not state this for a certainty. He stated that when he asked Jousma to furnish evidence of the purchase of the interest in the well, that Jousma furnished him a photo of the cashier’s check for $6,000 payable to Sandy Oil Company. Suess stated that any oil transactions he was involved in after October of 1967 were done through Sandy Oil Company and that the checks showed that Jousma and others knew this. He further stated that four documents were presented to him by Jousma after Perkins had signed and delivered the documents to Jousma and that Suess did not intend to make a personal promise to pay these amounts. He also stated that Jousma knew that he was signing the four documents as a corporate officer and that Suess never personally agreed to return the funds to Jousma. Suess stated in his affidavits that he signed the four documents believing that it would obtain for Jousma the funds originally invested in the well as affiant Suess assumed that Perkins had access to the funds.

On September 3, 1968, the trial court entered a summary judgment in favor of each of the four plaintiffs for the amounts alleged due them, being the total sum of $10,500 and judgments were entered against defendant, Edward J. Suess, personally in such amounts. The issue before this Court on review is whether the trial court correctly granted the motion for summary judgment. It is contended by defendant that there were genuine issues as to material facts and that entry of summary judgment was improper.

Both parties to this action agree that summary judgment is proper where there is no genuine issue as to a material fact raised by the pleadings and affidavits presented by both parties (1967 Ill Rev Stats, c 110, § 57; Miller v. Owens-Illinois Glass Co., 48 Ill App2d 412, 199 NE2d 300). They also agree with the rule that pleadings and affidavits should be construed strictly in favor of the moving party and liberally for the party contesting the motion for summary judgment (Kern v. Chicago & Eastern Illinois R. Co., 44 Ill App2d 468, 195 NE2d 197; Di Battista v. Centennial Ins. Co., 52 Ill App2d 84, 201 NE2d 466).

There are a number of matters in the case before us which appear to be disputed when both pleadings and affidavits of the parties are considered. The complaint charged Suess with making false statements to deceive plaintiffs and to induce them to purchase an interest in the oil well. Defendant Suess denies even knowing three of the plaintiffs prior to the alleged sale of the oil interest and also alleges that an Illinois corporation of which he was an officer was actually involved in the sale. Suess, however, admits he signed the agreements and it was upon the basis of the agreements the trial court entered the order for summary judgment. It is unquestioned that both Perkins and Suess executed the documents and that the documents on their face are unconditional agreements to return the money which was invested by plaintiffs in the oil well as alleged in the complaint.

On the basis of the record, the issues to which Suess referred do not present material questions of fact. The question of whether the plaintiffs paid the money for the direct benefit of Suess; whether he personally made fraudulent misrepresentations to plaintiffs; and even whether he represented that he had a direct interest in the well referred to, are not material in view of the documents signed by Suess and Perkins. The real question is whether Suess entered into an agreement based on an acknowledgment of obligations, following claims by plaintiffs, by which he agreed to return the money. Whether Suess privately intended that his signature was not to bind him personally could not affect the other parties, since there was nothing on the face of the promise to pay the money back to plaintiffs which makes the undertaking conditional in any way or which makes reference to Sandy Oil Company. There was, therefore, an unconditional admission of an obligation by Suess and Perkins to make the payments and a specific promise to return the money. The trial court, on the basis of the record, was justified in finding that defendants Suess and Perkins had agreed with each of the plaintiffs to repay the sums of money set forth in the complaint. It was apparent to the court that defendants, in answer to the claims of the plaintiffs, based upon false representations made by defendants, personally agreed to refund the money to each of the plaintiffs. If this undertaking was ambiguous in any respect, the ambiguity would be construed strongly against defendants who prepared and executed the promises to return the money.

On the basis of the record, therefore, we conclude that there was no material issue of fact raised in the lower court and that the entry of summary judgment pursuant to motion was proper. The judgment of the Circuit Court of Cook County will, therefore, be affirmed.

Affirmed.

RYAN, P. J. and STOUDER, J., concur.


text:
    Joseph F. Elward, Plaintiff-Appellant, v. Mancuso Chevrolet, Inc., a Corporation of Delaware, Defendant-Appellee.
    Gen. No. 53,708.
    First District.
    March 20, 1970.
    Rehearing denied April 28, 1970.
    Edward S. Made, of Chicago, for appellant.
    Griffin, Guinan & Griffin, of Chicago, for appellee.
   ALLOY, J.

The record in this cause discloses that Joseph F. Elward owned a commercial building at 8102-4 Lincoln Avenue, Skokie, Illinois. The building was leased to Fritz Anderson Company in September 1954 in the lease which expired October 31, 1959. Fritz Anderson Company used the building as a sheet metal shop. Fritz Anderson Company thereafter on November 30, 1956, subleased the premises to defendant Mancuso Chevrolet, Inc. Defendant as sublessee immediately in December of 1956 began using the property as an autobody repair shop. In the original lease between Fritz Anderson Company and the plaintiff, a $550 security deposit was made and defendant Mancuso Chevrolet, Inc., took over such deposit as assignee at the time of the subleasing. The Fritz Anderson Company lease, which had been assigned to defendant, expired by its terms on October 31, 1959. Plaintiff then made a new lease with Mancuso Chevrolet, Inc. for the period commencing on November 1, 1959, and extending to October 31, 1964. The new lease to defendant began on November 1, 1959, at which time defendant was operating an autobody repair shop in the building. It continued to operate an automobile repair shop in the building during the period of the lease. The lease provided by its terms that it could be occupied “for any commercial purpose that is lawful under the ordinances of the Village of Skokie.” The lease also provided as follows:

“Third: Lessee shall not . . . allow said premises to be used for any purpose that will increase the rate of insurance thereon . . . .”

By the terms of the lease it was provided that a rental of $305 per month was to be paid during the fifth year of the lease. The new lease also provided that the security deposit of $550 which was originally made by Fritz Anderson Company, was to be retained by plaintiff as security deposit for the new lessee, Mancuso Chevrolet, Inc. Such deposit, by the terms of the lease could be applied in payment of any sums due from lessee under its terms, and lessor was to return any portion of the deposit not previously applied in payment of such sums due.

The building had been insured by plaintiff for $20,000 through a certain agency from the time the Fritz Anderson Company lease began in 1954. At that time the building was rated “sheet metal shop” and when the defendant took over the building as a sublessee in 1956, defendant began using the building as an “autobody repair shop.” The insurance rate for an autobody repair shop is higher than the rate for a sheet metal shop. The record shows that the insurance company did not discover the change in the use of the building until the spring of 1961 and at that time they increased the premium for the building insurance to reflect the new use of the building as an autobody repair shop. The net result was to increase plaintiff’s insurance costs on the building during the balance of the term of the 1959 lease by $209.95.

On August 27, 1964, defendant wrote plaintiff and stated that they expected to vacate the premises at the termination of the term of the lease and enclosed a check for $60 which defendant explained could be used together with the $550 deposit to make a total of $610 in rent (at $305 per month for September and October). The check contained the notation “balance of all rental due on property located at 8102 Lincoln Avenue, Skokie, Illinois, to October 31, 1964.” Plaintiff did not cash the check but wrote defendant that there might be an additional amount owing by defendant due to the increase in insurance costs on the building because of defendant’s use of the premises. On September 28, 1964, plaintiff wrote defendant explaining there was an additional $209.95 due by reason of the increased insurance costs. On November 13, 1964, plaintiff again wrote defendant and said that the $209.95 had been deducted from the security deposit and thus there was still $209.95 due on the rent for October. On November 23, 1964, plaintiff wrote that he would file suit if he received no reply. Defendant did not reply to any of the letters. On July 14, 1965, plaintiff filed suit and obtained judgment by confession (under a clause in the lease) on July 16, 1965. Defendant moved to open up the judgment; and on April 21,1966, the judgment was opened up and defendant was given leave to appear and plead.

Thereafter, there were a series of continuances from June 20, 1966, to October 10, 1966, to December 15, 1966, and to March 28, 1967. The record does not indicate who requested the continuances and defendant in its brief states that they were by agreement after a request by plaintiff. Plaintiff has denied that this was so and referred to the fact that the record makes no showing as to who requested the various continuances. On March 2, 1967, plaintiff filed a motion for summary judgment and attached exhibits setting forth most of the facts recited in this opinion. On April 10, 1967, defendant also moved for summary judgment. A number of continuances thereafter were made from May 17, 1967, to June 1, 1967, to July 12, 1967, when the case was continued to an undetermined date. The record does not disclose which party requested these continuances and plaintiff contends it was by mutual agreement while defendant states that it was plaintiff who first requested the continuances in which defendant concurred. Thereafter, there was a new setting and a continuance to October 10, 1967, and thereafter to November 17, 1967, then to December 14, 1967, and again to February 28, 1968. On February 28, 1968, the case was again continued to March 22, 1968, and on March 22, 1968, the trial judge specifically set the matter for trial on July 31, 1968. From July 31, 1968, the case was continued to October 9,1968, and it was placed upon the trial calendar.

By October 9, 1968, the case had been continued in one manner or another approximately 15 times. Plaintiff’s attorney was the first one to appear before the court on October 9, 1968, and such attorney advised the judge that there were two motions for summary judgment which had not been heard and that plaintiff’s attorney and defendant’s attorney were seeking to work out an agreed statement of facts, and such attorney thereupon requested another continuance. The trial judge refused to grant such continuance. Plaintiff’s attorney then requested that the court hear the motions for summary judgment or transfer the case to another judge who could hear the motions. The trial judge denied such request. The trial judge then permitted plaintiff’s attorney to call the attorney for the defendant and the defendant’s attorney came to the courtroom. Plaintiff’s attorney stated that they were ready to argue the motions for summary judgment but the trial judge declined to hear such motions and indicated that the trial should proceed. Plaintiff’s attorney thereupon sought to continue the case to the next day, but the trial judge told the attorney that if he could not begin presenting evidence at that time, the trial judge would dismiss the case. Plaintiff’s attorney had no evidence to present and the judge entered an order as follows :

“October 9,1968, Order
“Not prepared for trial.
“It is ordered by the Court that this cause be and the same is hereby dismissed out of this Court with prejudice.”

Thereafter, on October 28, 1968, the plaintiff’s attorney moved to vacate the October 9, 1968, order dismissing the case. Defendant filed no counterpleadings or affidavit. The motion to vacate the dismissal order was denied by the court and plaintiff has appealed to this Court.

It is thus apparent that the basic issue in the case is whether the trial court abused its discretion when it dismissed the case on October 9, 1968, and later refused to vacate the order.

Under the law of this State (Athens v. Ernst, 342 Ill App 357, 96 NE2d 643; Sanitary Dist. of Chicago v. Chapin, 226 Ill 499, 80 NE 1017), the courts have inherent power to dismiss a lawsuit for want of prosecution. A failure to act or other circumstances which would justify the dismissal of an action for want of prosecution could necessarily vary from case to case. A determination of whether there has been a lack of prosecution which justifies a dismissal, is said to rest within the sound discretion of the trial court and the determination of the trial court will not be disturbed unless such court has abused its discretion (Epley v. Epley, 328 Ill 582, 160 NE 113).

Plaintiff contends on appeal in this Court that the cases of Yott v. Yott, 257 Ill 419, 100 NE 902, and Epley v. Epley, 328 Ill 582, 160 NE 113, support the contention of plaintiff that there was an abuse of discretion in the cause before us. We note that in the Yott case, a will contest was involved and there were a number of defendants to be served with a guardian ad litem to be named for an insane defendant. When the case was first set for trial it was found that two defendants had not been served and no guardian had been appointed although the case had been filed for six months. The Supreme Court in that case recognized that complainant had a duty to prosecute his case with diligence but the court also concluded that litigants should have an opportunity to present their case if they have not been guilty of negligence. Dismissal for want of prosecution in that case was reversed and the court stated (at page 423):

“Doubtless there had been inattention on the part of the solicitor for the complainants, and generally the client must suffer for the negligence of his solicitor, but the limitation fixed by the statute for suits to contest wills is very short and in this case had expired, so that the dismissal of the bill left the complainants without any opportunity to present their claims as to the invalidity of the will. In view of all the circumstances we think the court should have entered some rule to expedite the cause and to have given sufficient time to permit the complainants to secure service on the defendants not served and who did not appear.”

We see no parallel in the Yott case to the case before us. Similarly, the Epley case was a will construction case. In the Epley case it was discovered that three or four defendants had not been served so the case was continued for a couple of months to allow service on them. The cause was thereafter continued from June until October when one of the defendants moved for a dismissal for want of prosecution because all of the defendants were not yet served. Dismissal was ordered and plaintiffs showed that defendants who were not served by April were served by June, but in June plaintiffs learned of additional defendants and had been attempting since then to locate them. The Supreme Court concluded that plaintiffs were in compliance with the request of the trial court in April 1926 and it was thus error to dismiss the case. It is apparent, from the two cases referred to, that there was not the delay or request for continuances which exist in the instant case.

In more recent Illinois cases which have been considered with a view to the crowded dockets (with years of waiting before a suit could be tried) the courts have, necessarily, been required to seek to expedite disposition of cases. In Gray v. Gray, 6 Ill App2d 571, 128 NE2d 602, the court reviewed the history of the increase in the litigation since World War II and referred to the assignment system which was adopted to help solve some of the problems. It was noted by the court that if a case is continued several times because one of the attorneys is busy with other matters, this is. a warning to the busy attorney either to take more young attorneys into his firm to handle the firm’s business or to stop taking additional cases himself if he does not have adequate time to handle them. The court stated (at page 579) :

“Moreover, it is within the knowledge of all of us that many a young and obscure lawyer, after waiting years before his case gets on the trial call, is then overwhelmed by the opposition of a more experienced or effective opponent who wins continuance after continuance. In despair he often settles for less than his case would warrant or he may lose his witnesses and his client. These facts are not all present in the instant case. They are set forth as background for the court’s action, and it is in the light of that background that we must consider the facts in the case before us.”

In the Gray case the matter was set for trial on October 29. The plaintiff, over objection by defendant, had the matter continued to November 4, then to the 17th, then to the 19th, and finally to November 22. On the 22nd of November an attorney from the firm representing plaintiff appeared in court and sought a further continuance on the ground that the attorney who was familiar with the case was engaged in other matters. It was shown that the other case involving such attorney was actually concluded on November 19. The motion for continuance was denied and plaintiff’s attorney was not prepared to begin the trial, so the cause was dismissed. In affirming the action, the court stated (at pages 581-2):

“It is clear that plaintiff’s attorney had exhausted his right to consideration of any further motions for continuance on account of engagement and that the trial court, far from abusing its discretion, did the only thing it could do under the rules. The assignment judge likewise did his duty.”

In the case before us there were 15 continuances. While there is a question as to how many of these resulted from plaintiff’s action, we must still have in view the fact that this was plaintiff’s lawsuit and that plaintiff had the duty to prosecute. The court also had a duty to expedite the prosecution of plaintiff’s lawsuit in order to be fair to other litigants who were waiting to have their lawsuits heard. Since there is nothing in the record to show that defendant was the cause of the unusual number of continuances, the trial court was justified in assuming that plaintiff had the responsibility to prosecute his lawsuit with diligence and that he failed to do so. The case was on the October 9, 1968, trial calendar. The court, on its own motion, in its discretion, determined that plaintiff was not prepared for trial and thereupon concluded that he was not adequately prosecuting his case after notice that the case should be tried on October 9, 1968. We would not be justified in reversing unless we find that there was an abuse of discretion on the part of the trial court. On the basis of the record we cannot conclude that there was an abuse of discretion, in view of the long period of time the case was on file and the successive number of continuances.

The judgment of the Circuit Court of Cook County will, therefore, be affirmed.

Affirmed.

RYAN, P. J. and STOUDER, J., concur.


author: MR. JUSTICE LYONS

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Billy T. Scott (Impleaded), Defendant-Appellant.
    Gen. No. 52,999.
    First District, Second Division.
    March 24, 1970.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Justine I. Knipper and James J. Doherty, Assistant Public Defenders, of counsel), for appellant.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane, Assistant State’s Attorney, of counsel), for appellee.
   MR. JUSTICE LYONS

delivered the opinion of the court.

Billy T. Scott was convicted, following a jury trial, of the offense of burglary (Ill Rev Stats (1965), c 38, § 19-1). Judgment was entered on the verdict and he was sentenced to a term of not less than four nor more than eight years in the Hlinois State Penitentiary. In this appeal the defendant contends that the trial court erred: (1) in denying his motion for a directed verdict at the close of the State’s evidence; (2) in denying his motions to strike answers of a State’s witness alleged to be prejudicial; and (3) in instructing the jury.

The burglarized premises were occupied by, and the items taken were the property of, the Lawrence C. Brady Printing Company. Lawrence Brady, Jr., manager of the company, testified for the prosecution. He arrived at work at approximately 7:40 on the morning of December 30, 1966, and discovered that the premises had been burglarized. Entry had been effected by forcing the rear doors, the outer door being constructed of steel and the inner of wood. The office, located in the front of the printing shop, was in a state of disarray. Missing from the office were a check protector, electric typewriter, adding machine, and a number of blank company payroll checks. The payroll checks had been kept in an unlocked drawer in witness’ desk. Those discovered to be missing were number 686 through 1119, inclusive. Other payroll checks, bearing both lower and higher numbers, were strewn about the office.

State’s exhibits two through five were identified by Mr. Brady as payroll checks of the Brady Printing Company and bore the numbers 742, 743, 750 and 740. Mr. Brady also testified that the signatures appearing as those of the drawer of the checks were not his, nor were they the signatures of his father, owner of the enterprise. Finally, Mr. Brady testified that the designated payee on each of the checks marked as exhibits, Thomas A. Boyd, is a person unknown to him and he did not authorize anyone to write the checks.

On cross-examination Mr. Brady testified as follows: The company printed its own payroll checks. After printing and a determination that they are in numerical order, they are packaged and kept in his desk to be used as needed. When a package is opened no additional effort is made to ascertain if all the checks are in the package. Mr. Brady additionally testified that he did not know to a certainty that the checks marked as exhibits two through five were in his desk when he left work on December 29, 1966, and therefore he did not know to a certainty that they were taken in the burglary which took place between the time he left the shop on December 29, and returned on December 30,1966.

Other testimony was heard establishing defendant’s possession of the exhibits following the date of the burglary. That evidence, except insofar as set out below, is not relevant to the issues raised in this appeal.

In support of his contention that the trial court erred in denying his motion for a directed verdict, defendant argues that the testimony of Mr. Brady, the only witness to testify regarding the ownership and unlawful taking of the checks in question, did not conclusively establish that they were taken in the burglary with which he was charged. We agree. However, the evidence presented did establish the fact of a burglary, that other items were missing from the office in which the checks were customarily kept, and that other checks bearing numbers both lower and higher than those traced to defendant’s possession were strewn about the office. We believe that the evidence presented was sufficient to establish a basis from which the jury, as triers of fact, could reasonably conclude that the checks in question were taken in the burglary for which defendant stood accused. It follows that the evidence presented by the State was sufficient to support a verdict of guilty and therefore the trial court was correct in denying defendant’s motion for a directed verdict (Ill Rev Stats (1965), c 38, § 115-4 (k)).

Defendant next complains of the trial court’s denial of his motions to strike two answers given by Sergeant William Kearney, called by the State in rebuttal. Sylvester Smith, a codefendant called as a witness for the defense, had testified that he had never had a conversation with Sergeant Kearney in which he stated that he had received a Brady Printing Company payroll check in payment for two suits of clothes sold to the defendant. When called in rebuttal, Sergeant Kearney testified that he had arrested Smith in connection with the instant case after he, Smith, had cashed one of the checks discovered to be missing following the burglary. The officer further testified that when he questioned Smith concerning his acquisition of the check which he had cashed, Smith stated that he had received it in payment for two suits of clothing which he had sold to a person known to him only as “Billy the pimp.” (The witness later testified that Smith subsequently identified defendant by name and as the person referred to above.) The defendant objected to the quoted portion of the answer and moved that it be stricken. The motion was denied and the jury immediately instructed as follows:

“There was an objection to the phrase: ‘Billy the pimp.’ The court has overruled the objection and the answer may stand. But the jury is advised that it is standing merely as evidence of a conversation that this officer testifies he has (sic). It has no probative value whatsoever as to any activity that this Billy, that he refers to, might have been engaged in.”

In support of his contention that denial of his motion to strike constitutes reversible error, defendant argues that the statement characterized him as an evil person and made reference to a misdemeanor, which would not have been properly admitted even for the purpose of impeachment had defendant elected to testify and had his commission of such an offense been subject to proof by competent evidence. The total effect of the characterization, it is asserted, served to so prejudice the jury against the defendant as to deny him a fair trial. We agree that such a characterization is potentially highly prejudicial to a defendant. It must be noted however, that here it was not the witness who made the characterization. He merely related the substance of a conversation in which the characterization was made. Moreover, the limiting instruction promptly-given by the trial court was sufficient to remove the potential prejudice from becoming manifest.

Defendant’s second allegation of error with respect to the trial court’s denial of his motion to strike an answer of Sergeant Kearney arises from the following testimony:

Q. “Now, Officer, I’ll ask you to look at the defendant in this cause. Have you ever seen this man before this trial?
A. “Yes. I have seen him almost every month.”
MR. GALKA: “Objection.”
Following a side bar conference, the question and answer were allowed to stand and the following question was put to the witness:
Q. “Officer, when you say you have seen him in court, you have seen him relative to this case and this case only, is that correct?”
A. “That’s correct.”

Defendant contends that the answer to the first question ’ above implies that he was well known to the police and seen often by them as a result of his having been engaged in other and widespread criminal activities, and that the answer to the second question does not serve to correct the resultant prejudice to him. We find this contention to be without merit. The second question and the answer thereto clearly indicate that the familiarity of the witness with defendant was based upon previous encounters all of which were related to the cause then on trial. No inference of other criminal activities prejudicial to the defendant can be inferred from such a reference absent some implication regarding defendant’s conduct or tactics at those appearances.

Finally, defendant contends that the trial court’s giving of the following instruction to the jury constitutes reversible error:

“The exclusive possession, shortly after the commission of a burglary, of stolen property, the proceeds of the crime, if unexplained, may of itself raise an inference of guilt of the person having such possession, sufficient to authorize a conviction in the absence of any other evidence of facts or circumstances in evidence which leave in the mind of the jury a reasonable doubt as to the guilt of such person.”

Defendant argues that the giving of the instruction was error in that it assumes a fact not proven; i. e., that the evidence in the case did not establish that the checks traced to his possession were the fruits of the burglary. This argument falls as we have already held that the evidence presented to the jury was sufficient for them to conclude that the checks in question were taken in the burglary and thus the instruction was properly given.

It is next argued that the instruction shifts the burden of proof to the defendant in contravention of the well established principle that the burden of proof in a criminal case rests with the prosecution and never shifts to the defendant. We do not agree. The instruction merely states that when certain facts are found to exist an inference may be drawn therefrom and the inference, if drawn, is sufficient to authorize a finding of guilty unless from other facts and circumstances in evidence there remains a reasonable doubt of guilt. It does not require the defendant to prove his innocence, but rather informs the jury that they may return a verdict of guilty founded upon the specified inference provided the facts required to support the inference, also specified, are found to exist. See discussion in People v. Hanson, 97 Ill App2d 338, 240 NE2d 226 (1968).

We also find the contention of defendant that the instruction wrongfully comments upon his failure to testify to be without merit. The instruction merely sets forth a rule long established in this jurisdiction with respect to the sufficiency of the evidence in a burglary prosecution. No specific reference is made to the evidence or whether it has been contradicted by the defendant.

The judgment of the Circuit Court is affirmed.

Judgment affirmed.

MCCORMICK, P. J. and BURKE, J., concur.


author: MR. JUSTICE BURKE

text:
    Park Liquors, Inc., an Illinois Corporation, Plaintiff-Appellant, v. Illinois Liquor Control Commission of the State of Illinois, Defendant-Appellee.
    Gen. No. 53,454.
    First District, Second Division.
    March 24, 1970.
    Rehearing denied May 8, 1970.

      S. J. Be-Hannesey and Jacob Bloom, of Chicago, for appellant.
    William J. Scott, Attorney General of State of Illinois, of Chicago (Francis T. Crowe, Herman Tavins, and A. Zola Groves, Assistant Attorneys General, of counsel), for appellee.
   MR. JUSTICE BURKE

delivered the opinion of the court.

In a proceeding filed pursuant to the Administrative Review Act, the trial court affirmed an order entered by the Illinois Liquor Control Commission revoking plaintiff’s state retail liquor license.

On appeal plaintiff contends that prior action by the Local Liquor Control Commissioner of Schiller Park (Local Commissioner) in suspending plaintiff’s local retail liquor license for a period of three weeks, preempted the jurisdiction of the Illinois Liquor Control Commission (State Commission) to act in the matter; that the determination by the Local Commissioner was res judicata as to all questions raised in that proceeding; that the determination by the State Commission was not supported by substantial evidence; and that the Citation and Notice of Hearing filed by the State Commission did not charge plaintiff with the violation of any appropriate section of the Illinois Liquor Control Act.

Park Liquors, Inc., operated a retail tavern business in Schiller Park, Illinois, under the name of Park Liquors. The entire capital stock of the plaintiff was owned by Joseph Lachajczyk and his wife.

Pursuant to a Citation and Notice of Hearing filed against plaintiff by the State Commission, a hearing was conducted on June 18, 1968 on the following charges:

“1) In that the licensee and/or his employee did on April 1, 1968 and April 12, 1968 permit gambling on the licensed premises which is a violation of Section 184, Chapter 43, Illinois Revised Statutes, 1967.
“2) Further, that the licensee and/or his employee did, on April 12, 1968 permit and participate in the possession and distribution of obscene motion picture films containing obscenity.”

At the outset of the hearing, plaintiff moved for a dismissal of the proceeding on the grounds that the charges set out in the Citation and Notice of Hearing had been the subject of a hearing and a determination before the Local Commissioner on June 5, 1968; that the State Commission therefore lacked jurisdiction of the subject matter; and that the Local Commissioner’s determination was res judicata as to all matters raised in that earlier proceeding. Entered into evidence at that point in the hearing was a copy of the order entered by the Local Commissioner, finding facts in language which was identical to that of the charges contained in the Citation and Notice of Hearing filed by the State Commission. Plaintiff’s motion was denied by the State Commission and evidence was taken in support of the charges contained in the Citation and Notice of Hearing.

Cook County Sheriff’s Police Officer Donald Shaw testified that he and his partner, Officer Lundgren, entered the Park Liquors tavern on April 1, 1968, in the course of their official duties. Officer Shaw testified that he was dressed as a construction worker. He and his partner took seats at the bar and engaged one of the patrons seated there in a conversation concerning the possibility of the officers’ procuring obscene moving pictures. The patron, whose name the officer stated was “Dick,” told the officers to contact a person named “Art Rudelek.”

Officer Shaw testified that he thereafter contacted Rudelek by telephone and made arrangements for the purchase of five rolls of obscene moving picture film on April 12th. The two officers met with Rudelek on April 12th at the Park Liquors tavern, at which time they were introduced by Rudelek to two bartenders employed by Park Liquors, John Boronski and Ronald Phillip.

Officer Shaw testified that he gave Rudelek $75, in return for which he received a brown paper bag containing five rolls of moving picture film from bartender Phillip. The officer testified that after he paid Rudelek the money, he observed Phillip remove the bag containing the films from a cabinet under a bar where the liquor supply was stored, which was positioned behind the bar at which the patrons were served, and that Phillip physically delivered the bag to the officer.

Officer Shaw further testified that he, Officer Lundgren and Rudelek then went to the men’s washroom where they viewed a portion of the films by stripping the film from the roll and holding it against the light in the washroom. The officer testified that he and his partner “were satisfied with the purchase” and returned to their seats at the bar.

The officer testified that after the purchase was completed, Rudelek stated to him that if he or his partner desired any film in the future, they should leave the money therefor at the bar with either of the two bartenders and the film would be waiting for them in two days at the bar. The officer identified the five rolls of film which he and Officer Lundgren purchased on April 12th, which were subsequently admitted into evidence and portions thereof viewed by the members of the Commission.

Prior to the arrest of Rudelek and the two bartenders, the officers purchased raffle chances from a punch-board located behind the bar. Money for the chances was paid by the officers to bartender Phillip. The stub from the chances purchased was entered into evidence at the hearing.

On cross-examination Officer Shaw testified that he assumed the name of “O’Shay” during the transaction and that he entered the Park Liquors tavern dressed as a construction worker for the purpose of. a disguise. He also testified that Dick, the patron at the tavern who told him to contact Rudelek about the films, was not a Park Liquors employee, nor was Rudelek employed by Park Liquors. The officer stated that when he telephoned Rudelek he did not tell Rudelek to leave the films at the tavern, but that an arrangement was made that if Rudelek was not at the tavern when Shaw called for the films, he was to ask the bartender for the package. The officer finally testified that he did not “use Park Liquors as a channel for my plan,” but that “if there was evidence to be had against Park Liquors, it was my job to gather it.”

Officer Lundgren identified both the films and the raffle evidence obtained by the officers from the bartenders on the Park Liquors premises on April 12, 1968.

Joseph Lachajczyk testified that he and his wife owned all the capital stock of Park Liquors,' Inc., and that he was in sole authority in the management, the employment and discharge practices, and the conduct of the business. He stated that bartender Boronski was discharged from the employ of Park Liquors immediately after his arrest in this regard.

The witness further testified that he was not aware that the films were sold to the officers, nor did he have any notion that Park Liquors was being used as a “channel” for the sale of the films. The witness did admit, however, that he was aware of the raffle chances being sold in the tavern.

The State Commission ordered a revocation of the plaintiff’s state retail liquor license, and plaintiff instituted this proceeding in the circuit court to review that order. The court affirmed the order of the State Commission, and the plaintiff appeals.

The contention raised by the plaintiff, that the State Commission was without jurisdiction to try the questions presented in the Citation and Notice of Hearing for the reason that the Local Commissioner had previously exercised jurisdiction in that regard, presents a novel question. No authority has been cited, or found, regarding the question of whether the exercise of jurisdiction by a local commissioner, in suspending a local liquor license preempts the exercise of jurisdiction by the State Commission to determine if the state liquor license should be suspended or revoked, based upon charges identical to those tried by the local commissioner.

After a review of the appropriate sections of the Liquor Control Act, we are of the opinion that action taken by a local commissioner in suspending a local liquor license issued by it does not preempt the exercise of jurisdiction by the State Commission to determine whether the license issued by the State Commission should be revoked or suspended, based upon the same charges as tried by the local commissioner, in conformity with the pertinent provisions of the Liquor Control Act. (See Ill Rev Stats 1967, c 43, pars 108(1), 150.)

Plaintiff concedes that the Liquor Control Act created a dual retail liquor licensing system in Illinois whereby both the Illinois Liquor Control Commission and the various local liquor control commissioners have power to issue, respectively, state and local retail liquor licenses. See Ill Rev Stats 1967, c 43, pars 108, 112. It is also conceded by plaintiff that the State Commission has authority and power to suspend or revoke any state liquor license issued by it, including retail liquor licenses, by virtue of amendments to the Liquor Control Act in 1955. Ill Rev Stats 1967, c 43, pars 108(1), 150; Pliakos v. Illinois Liquor Control Commission, 12 Ill App 2d 170, 138 NE2d 862, affd, 11 Ill2d 456, 143 NE2d 47.

Section 13 of Article III of the Act provides that the issuance of a local retail liquor license by a local commissioner entitles the licensee to the issuance of a state license from the State Commission, subject only to the right of the State Commission to refuse such issuance where a violation of the Illinois Retailers’ Occupation Tax is involved. Ill Rev Stats 1967, c 43, par 109. If such question does not arise, the State Commission must, without a second hearing as to the applicant’s character, fitness, etc., issue a state license. Ill Rev Stats 1967, c 43, par 109; Retail Liquor Dealers’ Protective Ass’n of Chicago v. Fleck, 408 Ill 219, 96 NE2d 556. Section 13 further provides that although the state license has been issued as above stated, the compulsory issuance of such license “shall not prejudice the State Commission’s action in subsequently suspending or revoking” the state license, in accordance with the procedures set out in the Act. It is clear that the legislature did not intend that the indirect control by a local commissioner over the issuance of state licenses should extend to the power of the State Commission to revoke or suspend the state license on grounds prescribed in the Act.

Section 3 of Article IV of the Act empowers a local commissioner to revoke for cause, or to suspend for not more than 30 days, “all local licenses issued to persons for premises within his jurisdiction.” HI Rev Stats 1967, c 43, par 112. The suspension or revocation of the local license may be ordered by a local commissioner where, after notice and hearing, he determines that the licensee has violated, inter alla, “any of the provisions of this Act or of any valid ordinance or resolution enacted by the particular city council, . . . .” Ill Rev Stats 1967, c 43, par 149.

Section 12 of Article III of the Act provides that the State Commission has the power to “suspend or revoke such [state] licenses upon the State commission’s determination . . . that a licensee has violated any provision of this Act or any rule or regulation issued pursuant thereto. . . .” Ill Rev Stats 1967, c 43, par 108 (1). It should be noted that the State Commission’s power to suspend or revoke does not extend to a violation of a purely local ordinance or regulation by a state licensee, but that its authority to suspend a state license is not limited to a 30-day maximum period as is the power of a local commissioner.

The only provision in the Act which relates to the power of a local commissioner to control the status of a state license, is contained in Section 6 of Article VII of the Act: “The revocation of a local license shall automatically result in the revocation of a State license.” Ill Rev Stats 1967, c 43, par 150. The clear reason behind this provision is that since a party may not conduct a retail liquor business in Illinois without first having secured both a local and a state retail liquor license, and since the Act provides that a party whose license has been revoked for cause shall not be issued another license, the existence of the state license without the existence of the local license is meaningless. See Ill Rev Stats 1967, c 43, par 120(7). However, no such provision is made in the Act as to the effect of a suspension of the local license upon the status of the state license.

The legislature has provided a dual retail licensing system in Illinois, and in 1955 it further provided a dual system of sanctions for violations as provided in the Liquor Control Act. Prior to 1955, the State Commission had no power to impose sanctions for violations by way of revocation or suspension of licenses issued by it. It has long been held that the State has a definite interest in the sale, manufacture and distribution of alcoholic liquors within its borders. Pliakos v. Illinois Liquor Control Commission, 12 Ill App 2d 170, 138 NE2d 862, affd, 11 Ill2d 456, 143 NE2d 47. The State’s power to regulate such matters cannot be set aside by implication alone. We are of the opinion that the legislature did not intend that action by a local commissioner suspending a local retail liquor license should preempt the exercise of jurisdiction by the State Commission to revoke or suspend the state license based upon the same violations of the Act or appropriate rule or regulation.

As heretofore noted, the cases cited by plaintiff in support of its position are not in point. Retail Liquor Dealers’ Protective Ass’n of Chicago v. Fleck, 408 Ill 219, 96 NE2d 556, deals with the question of whether the State Commission, on an appeal to it from a determination by a local commissioner, may hold additional hearings as to the applicant’s character, fitness, etc., for the issuance of a liquor license. Day v. Illinois Liquor Commission, 39 Ill App2d 281, 188 NE2d 883, deals with the scope and extent of authority allowed to the State Commission in reviewing a determination made by a local commissioner.

Plaintiff’s second point is that the action taken by the State Commission was barred under the principle of res judicata. Plaintiff argues that although two liquor licenses were issued to it, by the State Commission and by the Local Commissioner, the issuance of both licenses afforded only a single privilege to engage in the retail liquor business, and that therefore, the action taken by the Local Commissioner suspending that privilege for three weeks was res judicata as to any subsequent proceeding on the same subject matter. We disagree.

Plaintiff was issued two separate and distinct retail liquor licenses by two separate and distinct licensing bodies, in accordance with the terms of the Liquor Control Act. By amending the Act in 1955 to provide for the imposition of sanctions by both bodies, for violations by the licensee, by means of suspension or revocation of the respective licenses, the legislature evidenced its intention that the regulation of the retail liquor business was the concern of both the local and the State bodies. While the Act does provide for the revocation or suspension of either license by the appropriate body, for the violation of any of the applicable provisions of the Act or of any rule or regulation set down by the State Commission, only a local commissioner is empowered to impose such sanctions for the violation of a purely local ordinance or regulation. (See Weinstein v. Daley, 85 Ill App2d 470, 229 NE2d 357.) To hold that a determination by a local commissioner, in connection with a license issued by it, bars action by the other, independent State body in connection with a license previously issued by it, albeit the same violation forms the basis of both proceedings, would defeat the intention manifested in the Liquor Control Act that the regulation of the retail liquor industry is the concern of both the local and the State bodies. The power of the State to act in this regard is not so limited. Pliakos v. Illinois Liquor Control Commission, 12 Ill App2d 170, 138 NE2d 862, affd, 11 Ill2d 456, 143 NE2d 47.

The cases cited by plaintiff in this regard are not in point. Cermak Club, Inc. v. Illinois Liquor Control Commission, 30 Ill2d 90, 195 NE2d 178, stands solely for the proposition that the State Commission is a “quasi-judicial” body when it acts to revoke licenses issued by it. In Childers v. Illinois Liquor Control Commission, 67 Ill App2d 107, 213 NE2d 595, plaintiff had been found guilty of certain violations by a local commissioner who imposed sanctions therefor; those same violations were later employed by the same local commissioner to again discipline the plaintiff when the evidence failed to support the charges filed in the later proceeding.

Bentley v. Teton, 19 Ill App2d 284, 153 NE2d 495, was a case dealing with estoppel rather than the question of res judicata. The reviewing court held that although the defendant in the subsequent suit was not a party to the prior suit (which had been brought by the plaintiff wherein plaintiff raised the same questions as raised in the subsequent suit), the defendant in the subsequent suit could properly raise a defense of estoppel in the subsequent suit because of the special relationship existing between the plaintiff and the defendant in the subsequent action, on the one hand, and also between those two parties and the defendant in the prior action, on the other hand. No such conditions exist here.

People v. Gray, 101 Ill App2d 217, 242 NE2d 298, involved an attempt by a local commissioner to obtain a conviction for defendant’s failure to obtain a local license to conduct a liquor business on a pleasure boat. The court on review held that under the evidence presented, such type of liquor licensing was a matter solely within the jurisdiction of the State Commission, by the express provisions of the Liquor Control Act.

Plaintiff next contends that the determination by the State Commission was not supported by substantial evidence.

Officer Donald Shaw testified that he was directed by a patron at Park Liquors to contact Art Rudelek concerning the purchase of obscene moving picture films. Over the telephone the officer arranged with Rudelek for the purchase of five rolls of film; an arrangement was also made that if Rudelek was not at Park Liquors when the officer called for the films, the officer was to ask the bartender for the films. The officer met with Rudelek at the tavern, and Rudelek thereupon introduced him to bartenders Boronski and Phillip. The officer testified that he gave Rudelek $75 and then observed bartender Phillip take a brown paper bag from a liquor stock bar behind the patrons’ service bar; the bag, containing the films, was then delivered by Phillip to the officer. Shaw also testified that after the purchase had been completed and after the officer had summarily viewed the films in the washroom, Rudelek informed him that if he desired any more film in the future he should leave the money with one of the bartenders at the tavern and the films could be picked up at the tavern two days later. One of the films purchased by the officer was viewed by the members of the Commission at the hearing.

Officer Shaw further testified that he also purchased a raffle chance from a punchboard which was located on the bar and that he paid bartender Phillip therefor.

We are of the opinion that the finding of the State Commission, that “the evidence adduced at the hearing supported the charges contained in the Citation and Notice of Hearing,” was not against the manifest weight of the evidence. Mitchell v. Sackett, 27 Ill App2d 335, 169 NE2d 833. Plaintiff’s bartenders were directly involved in the transfer of the films, as appears from the testimony of Officer Shaw. It is clear that Park Liquors was not used as a “mere conduit” for the exchange of the films, as contended by plaintiff, in light of the testimony of Shaw that Rudelek told him that if he desired any more film in the future merely to leave the money with the bartenders and the film could be picked up in two days.

The further fact that Lachajzyck testified that he had no knowledge that the Park Liquors premises was being used as a transfer point for the films, is unavailing ; there is substantial evidence that the bartenders knowingly engaged in the sale and transfer of the films, and knowledge by the licensee of the unlawful activities of his employees in this regard is not a prerequisite to a finding of a licensee’s violation of section 3 of Article X of the Act. Ill Rev Stats 1967, c 43, par 185. It should also be borne in mind that Lachajzyck testified that he fired one of the bartenders immediately after the arrests, and further that Lachajzyck admitted knowing about the sales of the raffle tickets by his bartenders on the Park Liquors premises.

Plaintiff did not contest below the question of whether the films which Officer Shaw purchased from Rudelek were in fact obscene. Although plaintiff did raise an objection to the admission of the films into evidence, the basis thereof related only to the relevancy of the films in light of plaintiff’s theory that plaintiff in no way participated in their sale or delivery through the bartenders.

The Commission made the single finding of fact, that the “evidence adduced at the hearing supported the charges contained in the Citation and Notice of Hearing.” While this single finding does somewhat weaken the weight of the Commission’s final determination of plaintiff’s guilt (Maywood Park Trotting Ass’n v. Illinois Harness Racing Commission, 15 Ill2d 559, 563, 155 NE2d 626) the evidence in the record substantially supports the finding that plaintiff did in fact engage in the traffic of obscene materials and in the sale of gambling material through its employees in violation of section 3 of Article X of the Act. Ill Rev Stats 1967, c 43, par 185.

The final contention raised by plaintiff is that the Citation and Notice of Hearing filed by the State Commission failed to charge plaintiff with a violation of an appropriate section of the Liquor Control Act. The Citation and Notice of Hearing charged plaintiff with a violation of section 2 of Article X of the Act, which deals with owners of licensed premises, whereas plaintiff was found guilty of a violation of section 3 of Article X, which deals with licensees. (Ill Rev Stats 1967, c 43, pars 184, 185.) We are of the opinion that plaintiff cannot at this time be heard to complain in this regard, inasmuch as plaintiff was aware that the charges against it were brought under section 3 of Article X of the Act.

By its own admission in its complaint to review the State Commission’s ruling, plaintiff alleged as one of the grounds for a reversal of that ruling, that the Commission made, “An incorrect application of the language of Article 10, Section 3 of the Illinois Liquor Control Act,” which is paragraph 185 of the Ill Rev Stats. It is clear that there was a typographical error in the Citation and Notice of Hearing, and that plaintiff in fact knew the violation charged. The authorities cited by plaintiff with respect to the question of jurisdiction of the Commission to hear the matter are not applicable.

For these reasons the judgment is affirmed.

Judgment affirmed.

McCORMICK, P. J. and LYONS, J., concur!


author: MR. PRESIDING JUSTICE McCORMICK

text:
    People of the State of Illinois, Plaintiff-Appellant, v. John L. Smolucha and Steve Geisler, Jr., Defendants-Appellees.
    Gen. No. 54,003.
    First District, Second Division.
    March 24, 1970.

      Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Matthew J. Moran, Assistant State’s Attorneys, of counsel), for appellant.
    Frank G. Whalen, of Chicago, for appellees.
   MR. PRESIDING JUSTICE McCORMICK

delivered the opinion of the court.

John L. Smolucha and Steve Geisler, Jr., hereafter referred to as defendants, were arrested on July 2, 1969, and charged with the offense of gambling, after Chicago police officers had executed a search warrant upon the premises located at 2500 West 47th Street, Chicago. Indictments charging the offense of gambling were returned and a motion to quash the search warrant was filed before the trial court. No testimony was heard. The trial court sustained the motion to quash and suppressed the evidence, finding there was insufficient probable cause for the issuance of the search warrant. The case was stricken and the State filed a notice of appeal.

The State has prosecuted this appeal pursuant to Supreme Court Rule 604. The complaint, which had been relied upon in granting the search warrant, was not included in the State’s first abstract. During oral argument the State was allowed ten days to file an additional abstract which, when filed, contained the complaint; however, the complaint as shown in the amended abstract contains no affidavit on the part of Donald Masnjak, a Chicago police detective, who signed the complaint. In the record a complaint for search warrant appears in which it is stated that Donald Masnjak, complainant, “now appears before the undersigned judge of the Circuit Court of Cook County and requests the issuance of a search warrant . . . .” On page one of the three-page document there is a note stating: “Subscribed and sworn to before me on July 2nd, 1968, at 9:30 a. m., [signed] Alfonse F. Wells, Judge.”

This is the only affidavit which appears in the complaint, and it does not indicate that it is intended to cover the entire complaint. However, both parties to this appeal apparently accept as true that the complaint was fully subscribed and sworn to before the judge. While the affidavit appears only on the first page, each of the three pages is signed by both the judge and the complaining witness. We will treat it as having been properly sworn to.

The complaint was for a search warrant “to search the persons of John L. Smolucha and Bruno Ryndak and a Buick bearing 68 Ill HL 8370 and a Pontiac bearing 68 Ill 899-452, and the first floor of the rear building at 2500 West 47th Street, Chicago, Illinois and seize the following instruments, articles and things: all gambling records, implements, apparatus, paraphernalia and monles, and evidence thereof, which have been used in the commission of, or which constitute evidence of the offense of gambling.”

The complaint stated that the affiant had probable cause to believe that the articles mentioned were located upon the persons and premises above indicated; and that the affiant was a detective with the Chicago Police Department, assigned to investigate gambling in Chicago. He asserted that he had interviewed a “confidential informant” on June 20, 1968, who told him that Smolucha and Ryndak were operating a wire room “in the vicinity of 47th and South Western” every day; that the informant had previously proved reliable, having given him information which resulted in two gambling convictions in 1966, one in 1967, and three guilty pleas in 1968, with two cases pending.

The affiant, Detective Masnjak, detailed the results of his surveillance as follows: On Wednesday, June 26, 1968, he observed Smolucha’s car in front of his residence, and the arrival of two other automobiles which proved to be registered to Joseph Benes, who has. a long arrest record for gambling. The drivers of the two cars entered the residence. The affiant saw Smolucha leave his home and go to a tavern operated by a man who also had an arrest record for gambling; Smolucha bought a scratch sheet and drove to 47th and South Western. Bruno Ryndak also arrived there, parked his car, and walked to the rear building at 2500 West 47th Street, “carrying a small brown box, containing adding machine-type paper.”

The affiant followed Ryndak the next day to the same area, but lost sight of him near a vacant lot at the rear of 2500 West 47th Street. The following Monday Smolucha entered the rear building at the same address, carrying a scratch sheet; one minute later Ryndak, also carrying a scratch sheet, entered the building, pausing first to look in all directions. During a period of several months Smolucha and Ryndak were seen together at night at Chicago area racetracks.

The affiant examined the building at 2500 West 47th Street and found the first floor apparently unoccupied, although there were at least two telephone wires on the side of the building entering the first floor.

An investigation of Chicago police records revealed that Smolucha has been arrested numerous times, and in 1967 was convicted of gambling; that Ryndak was arrested for gambling on several occasions, and was under indictment for gambling at the time the complaint for search warrant was filed.

The issue this court must decide is whether the complaint we have summarized set out sufficient probable cause to authorize the issuance of a search warrant.

In Aguilar v. Texas, 378 US 108, a search warrant was issued upon the affidavit of police officers who had simply said they had reliable information from a credible person and personally believed narcotics and narcotic paraphernalia were being kept at specified premises. The Supreme Court invalidated the search warrant, finding it inadequate on two grounds; 1) No underlying circumstances were included in the affidavit which would give the magistrate the opportunity to make an independent evaluation of the informant’s conclusion; and 2) The affidavit contained the bald assertion that the informant was reliable and credible, and absolutely no information was given the magistrate from which he could determine whether such conclusions were justified.

In Spinelli v. United States, 393 US 410, the Supreme Court took the opportunity to apply the Aguilar test. The court in Spinelli had before it a search warrant which had been issued upon an affidavit in which it was pointed out that the defendant had been under surveillance of FBI agents and that he had repeatedly crossed the state line while being observed. It was also stated that the defendant had repeatedly parked in front of a particular apartment in which there were two telephones. The affidavit also contained a statement that Spinelli was known as a gambler, bookmaker, and associate of the gambling fraternity; and that the FBI had been informed by a “confidential reliable informant that William Spinelli is operating a handbook and accepting wagers and disseminating wagering information by means of the telephones . . . .”

Here we would point out the differences between the affidavit in Spinelli and the one in the present case. The Spinelli affidavit merely contains the statement that the informant employed was reliable; in the case before us the assertion is made that the informant was reliable, but the affidavit explains further that information obtained from him has resulted in six previous convictions with two cases still pending. This information was one underlying circumstance from which a judge could reasonably assume that the informant was indeed reliable.

Also, the Spinelli affidavit set out in detail the defendant’s travels to a particular area and his entry into a particular apartment on one occasion. In this connection the court said at page 414: “Spinelli’s travels to and from the apartment building and his entry into a particular apartment on one occasion could hardly be taken as bespeaking gambling activity; . . . .” [Emphasis supplied.] In the instant case the affidavit recounted that within a few days not one, but two men, entered the same apartment building on three different occasions. Furthermore, on several other occasions the same men were seen approaching the apartment building, although visual contact was lost. The allegation that two independent parties repeatedly converged on the same building, carrying scratch sheets and adding machine paper indicates much more than one man simply walking into an apartment building on one occasion, as in Spinelli.

Further, the Spinelli affidavit stated that there were two separate telephones in the apartment under observation, and the court found “nothing unusual” in this. In the instant case the affiant also stated in the affidavit that the apartment in question had two telephones, but that the apartment repeatedly entered by the two men “appeared to be unoccupied.” While there may be “nothing unusual” about an apartment with two telephones, there is something unusual about an apartment repeatedly entered by two men carrying scratch sheets and adding machine paper who, according to a reliable informer, are involved in gambling, and which apartment has nothing in it except two telephones.

In both Aguilar and Spinelli there was only the conclusion that the informer was reliable and credible. In the case before us that same statement was strengthened by the allegation that the informer’s tips had led to previous convictions. However, there is nothing in the affidavit before us which explains how the informer himself came to the conclusion that he was observing illegal activity. Under these circumstances and under Spinelli, are we then required to hold that the warrant was incorrectly issued? The court in Spinelli points out that this is not the end of the inquiry, and states at page 415:

“The informer’s report must first be measured against Aguilar’s standards so that its probative value can be assessed. If the tip is found inadequate under Aguilar, the other allegations which corroborate the information contained in the hearsay report should then be considered.”

The tip in the instant case is inadequate under Aguilar because we are not informed as to the basis of the determination ; only that the informant has proved reliable and credible in the past. We must therefore look to the "other allegations which corroborate the information contained in the [affidavit]The court in Spinelli explains what must now be asked (page 415):

"Can it fairly be said that the tip, even when certain parts of it have been corroborated by independent sources, is as trustworthy as a tip which would pass Aguilar’s tests without independent corroboration? ... A magistrate cannot be said to have properly discharged his constitutional duty if he relies on an informer’s tip which — even when partially corroborated — is not as reliable as one which passes Aguilar’s requirements when standing alone.”

The converse of this statement is also true. If the informer’s tip, when partially corroborated, is as reliable as a tip standing alone and meeting Aguilar’s requirements, then the warrant may properly issue. The problem in both cases cited was that the magistrate was not entitled to view the tip as credible because there was no basis on which he could determine that the informer was in fact a credible person. Consequently, the court was left with only the “corroboration” which was not of itself sufficient to establish probable cause.

In the present case we have a tip from an undisclosed informer who has proved to have had reliable sources in the past, together with corroboration by the police officer. The tip under these conditions becomes at least as persuasive as a tip standing alone, and sufficient under the Aguilar case. Of course, the best of possible affidavits would be one which includes the facts and circumstances from which the informer has decided that illegal activity is going on, a statement as to his reliability, together with facts substantiating the claim, and corroborative aspects which would lend credence to the informer’s affidavit. This does not mean, however, nor do the cited cases dictate, that such an affidavit is the only kind which will suffice. We must not lose sight of the fact that we are concerned with probable cause — not with proof beyond a reasonable doubt — and the judicial officer deciding whether or not the search warrant should issue should be allowed to use his common sense and not be bound by procedures as formal as those required at trial.

Even in Spinelli, where no information was given as to the past reliability of the informant, the court at page 418 said the tip was not “so insubstantial that it could not properly have counted in the magistrate’s determination. Rather, it needed some further support.” The court looked to the remainder of the report to determine if the suspicions engendered by the tip were reinforced by independent evidence such as would permit the conclusion that a crime was probably being committed. No such independent evidence was found.

In the instant case we start with a tip which is entitled to more credence on its face than the Spinelli tip, since the informer’s past reliability is established. We find other independent allegations which, taken together with the tip, “permit the suspicions engendered by the informant’s report to ripen into a judgment that a crime was probably being committed.” [Spinelli, supra, at 418.]

Accordingly, the search warrant was lawfully issued, and it was error to have quashed the warrant and suppressed the evidence seized as a result of the search. Therefore, we are reversing the order appealed from and remanding the cause with directions that it be reinstated for further proceedings consistent with this opinion.

Reversed and remanded with directions.

LYONS and BURKE, JJ., concur.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Jimmy Walker (Impleaded), Defendant-Appellant.
    Gen. No. 54,080. (Abstract of Decision.)
    First District, Second Division.
    March 24, 1970.


author: MR. PRESIDING JUSTICE STAMOS

text:
    Raymond Jeschke, Plaintiff, v. Mercury Builders, Inc., Defendant. Mercury Builders, Inc., Third-Party Plaintiff-Appellee, v. Brule Incinerator Corporation, Third-Party Defendant-Appellant.
    Gen. No. 52,085.
    First District, Fourth Division.
    March 25, 1970.

      Price, Noetzel, Schlager & Burgeson, of Chicago (William J. Thomas, of counsel), for appellant.
    Joseph A. Bailey and Jerome H. Torshen, of Chicago, for appellee.
   MR. PRESIDING JUSTICE STAMOS

delivered the opinion of the court.

Third-party defendant Brule Incinerator Corporation appeals from a judgment entered on the pleadings granting third-party plaintiff Mercury Builders indemnification for damages awarded in the primary suit amounting to $4,500, plus attorneys’ fees and costs.

Mercury, as general contractor for the Chicago Housing Authority on a construction job, subcontracted installation of incinerators and boiler stacks to Brule. The pertinent provision of the subcontract provides:

“Article 9: The Subcontractor hereby agrees to indemnify and deem harmless the Contractor against all liability, claims, judgments or demands for damages arising from accidents to persons or property occasioned by the Subcontractor, his agents or employees, and against all claims or demands for damages arising from accidents to the Subcontractor, his agents or employees, whether occasioned by said Subcontractor or his employees or by agents or employees of agents; and the said Subcontractor will defend any and all suits that may be brought against the Contractor on account of any such accidents and will reimburse the Contractor for any expenditures that said Contractor may make by reason of such accidents.”

Plaintiff Raymond Jeschke was an employee of Brule and was engaged on the work under the Mercury-Brule subcontract. On March 21, 1963, plaintiff was loading materials and tools onto a material hoist at the job site when the operator caused the hoist to move abruptly. Plaintiff stumbled and struck his knee against a protruding bolt on the frame of the hoist causing injury. The hoist had been rented and erected by Mercury and the operator was an employee of Mercury who filed a third-party indemnification action against Brule. Before determination of the primary cause Mercury was awarded a judgment on the pleadings against Brule as to liability. Subsequently, judgment was entered for plaintiff against Mercury for $4,500. Judgment was then entered in favor of Mercury on its third-party claim against Brule for $4,500, plus attorneys’ fees and costs. Brule appeals.

Brule maintains that the trial court erred in granting Mercury a judgment on the pleadings based upon the express indemnity provisions of the subcontract. It is Brule’s contention that the provision does not evince an intention to indemnify Mercury for its own negligence.

OPINION

In construing an indemnification agreement the court is bound to give effect to the intention of the patries determined solely from the language used when no ambiguity exists. Schek v. Chicago Transit Authority, 42 Ill2d 362, 247 NE2d 886 (1969). A strict construction should not be adopted where to do so would reach a different result. Schiro v. W. E. Gould & Co., 18 Ill2d 538, 165 NE2d 286 (1960). Where an ambiguity does exist, the court will construe the contract most strictly against the party seeking indemnity for his own negligence. Westinghouse Elec. Elevator Co. v. LaSalle Monroe Bldg. Corp., 395 Ill 429, 70 NE2d 604 (1946). For an ambiguity to exist, the meaning of the word or words must be susceptible to more than one meaning as read in context of the entire contract.

In De Tienne v. S. N. Nielsen Co., 45 Ill App2d 231, 195 NE2d 240 (1963) the pertinent provision of the indemnity agreement provided:

“The Subcontractor shall indemnify and save the Owner, Architect and General Contractor harmless against any and all claims for damages to persons, caused directly or indirectly or occasioned by the execution of the work included in this order. . . .”

The court noted that the word “occasioned” has two meanings, one to cause or bring about; the other to furnish an opportunity or ground for. In determining which meaning the parties intended, the court noted that if the prior definition were applied, the phrase “occasioned by the execution of the work” would have no meaning, but if the latter definition were used, three levels of progressive accountability would be expressed. Since only the latter definition, that of furnishing an opportunity or ground for, gave force and effect to the words, the court concluded that the intention of the parties was to expand liability beyond claims for damages caused by the subcontractor. The facts in the present case are similar to those in De Tienne. The dispute in this case centers on the meaning of “whether occasioned by said Subcontractor or his employees or by agents or employees of agents.”

“Article 9” of the subcontract encompasses two categories of accountability defined in terms of the identities of the injured parties claiming damages. The first category is “accidents to persons or property”; the second is “accidents to the Subcontractor, his agents, or employees.” The first, as conditioned by the latter, renders the Subcontractor liable for accidents to all others, not including himself or his employees, while the second designates them as a separate class. The phrase “occasioned by the Subcontractor” appears in both categories. It is, therefore, reasonable to assume that the parties intend both phrases to have the same meaning.

In both categories the level of accountability is first defined in terms of “all liability . . .” and conditioned by the phrases “occasioned by” and “whether occasioned by.” Since the latter category utilizes “whether” in preceding “occasioned by,” we assume the drafters intended to differentiate the applicability of the phrases. Brule contends that the word “whether” is ambiguous as a matter of law since the trial court adopted a different definition from that urged by Brule. However, Brule overlooks the fact that an ambiguous word can become unambiguous when read in context. The definition asserted by Brule, that of “alternatives in a statement of choice,” would make the word equally applicable in the first category if used, and since the drafters must have intended a different application we believe the trial court was correct in utilizing the alternative meaning, that of “whether or not.” As read in context the clause then provides, “all claims or demands . . . for damages from accidents to the Subcontractor, his agents or employees, ‘whether or not’ occasioned by the said Subcontractor . . . .”

The trial court properly granted Mercury a judgment on the pleadings and the judgment is, therefore, affirmed.

Judgment affirmed.

DRUCKER and ENGLISH, JJ., concur.