text:
    People of the State of Illinois, Plaintiff-Appellee, v. William Garrett, Defendant-Appellant.
    Gen. No. 52,942.
    First District, First Division.
    July 2, 1969.

      Donald J. Spero, of Chicago, for appellant.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and L. Michael Getty, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE MURPHY

delivered the opinion of the court.

In a bench trial in Cook County, Illinois, defendant was found guilty of theft of property of a value in excess of $150, in violation of chapter 38, section 16-1 (a) of the Ill Rev Stats 1965. Defendant was sentenced to the penitentiary for a term of two to six years.

The indictment on which defendant was convicted alleged that the defendant “obtained and exerted unauthorized control over an automobile” belonging to Mary Koll while within Cook County, Illinois. On appeal defendant contends that the State failed to prove that the offense was committed in Cook County, as alleged in the indictment.

On April 26, 1967, at approximately 2:00 a. m., it was discovered that a 1967 Oldsmobile, valued in excess of $150 and owned by Mary Koll, was taken without authority from the premises of Humphrey Chevrolet in Evanston, Cook County, Illinois. On April 27, 1967, and while driving the stolen automobile, defendant was arrested in Waukegan, Lake County, Illinois, by Waukegan police officers.

At the trial it was stipulated that the subject automobile was taken in a burglary on April 26, 1967, from a location in Evanston, Cook County, Illinois. A witness for the State testified that defendant was arrested in Lake County while driving the stolen car. Defendant testified and admitted that he was driving the car in Waukegan. In an explanation of his possession of the stolen car, he stated he borrowed it from a friend in Waukegan, and also that he had purchased the car for $500 on April 26, 1967, and “I gave the guy $200, but I hadn’t bought it. I was supposed to give him some more money on it.”

The trial court found defendant guilty of theft of property of a value in excess of $150 “in manner and form as charged in the indictment in this cause.”

Defendant contends that the indictment alleged the theft was committed in Cook County, and therefore it was necessary for the State to prove that the defendant committed the theft in Cook County. Defendant asserts there was no evidence showing that he was observed or committed any act in Cook County at any time and therefore his conviction should be reversed. Defendant’s authorities include Dougherty v. People, 118 Ill 160, 163, 8 NE 673 (1886):

“The principal is as well settled as is any other applicable to criminal trials, that where the record brought to this court on writ of error, in a criminal case, purports to contain all the evidence given on the trial below, it must appear affirmatively, from the evidence, that the offense charged was committed in the county alleged in the indictment, otherwise a judgment of conviction will be reversed. Rice v. The People, 38 Ill 435; Jackson v. The People, 40 Ill 405; Sattler v. The People, 59 Ill 68.”

The State contends that venue was established in Cook County through a combination of both direct and circumstantial evidence. Authorities cited include People v. Pride, 16 Ill2d 82, 86, 156 NE2d 551 (1959):

“The defendant contends that venue was not proved in this case, and, therefore, the conviction must be reversed and the cause remanded. It is a well established rule that the charge that a crime was committed in a particular county is a material averment and must be proved to sustain a conviction.
“In many of its earlier decisions this court adhered to a technical view and insisted upon positive and strict proof of venue precisely as alleged. . . . Applying the rationale of these earlier decisions the evidence in this case would not be sufficient to establish venue. We believe, however, that a more practical and realistic approach was used in People v. Long, 407 Ill 210. It was there held that venue is proved when the evidence leads to the rational conclusion without reasonable doubt that the crime was committed in the county where the trial was held.”

We think this case comes within the rule “that the possession of stolen property, the proceeds of a burglary or larceny, soon after the commission of the offense, is evidence of the guilt of the person or persons in whose possession it is found and is sufficient to warrant a conviction unless such possession is explained or unless there appears from all the evidence a reasonable doubt of the defendant’s guilt.” People v. Bennett, 3 Ill2d 357, 363, 121 NE2d 595 (1954).

Where a cause is tried by a court without a jury, the determination of the credibility of the witnesses and the weight to be given their testimony is committed to the trial judge. In the instant case it is obvious that defendant’s explanation of his possession of the stolen car was inherently improbable and was disregarded by the court as unworthy of belief. The rejection of defendant’s explanation of possession of the recently stolen automobile led “to the rational conclusion without reasonable doubt” that defendant committed the theft in Cook County, where the trial was held. From our examination of the entire record, all the elements of the offense of theft, committed in Cook County, as charged, were proved beyond a reasonable doubt.

We conclude that the finding of guilt of theft in the instant case is not “palpably contrary to the weight of the evidence,” nor is the evidence “so unreasonable, improbable or unsatisfactory as to justify a reasonable doubt of the defendant’s guilt.” (People v. Hicks, 362 Ill 238, 246, 199 NE 368 (1935).) Therefore, the judgment of the trial court must be affirmed.

Affirmed.

ADESKO, P. J. and BURMAN, J., concur.


source: Caselaw Access Project

author: MR. PRESIDING JUSTICE DRUCKER

license: Public Domain

text:
    People of the State of Illinois, Plaintiff-Appellee, v. David Altman, Defendant-Appellant.
    Gen. No. 53,265.
    First District, Fourth Division.
    July 2, 1969.

      Sidney S. Altman, of Chicago, for appellant.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and James S. Veldman, Assistant State’s Attorneys, of counsel), for appellee.
   MR. PRESIDING JUSTICE DRUCKER

delivered the opinion of the court.

Defendant was charged with driving a motorcycle at an excessive rate of speed in violation of section 49, Uniform Act Regulating Traffic on Highways. After a bench trial he was found guilty, judgment was entered and a fine of $200 plus costs was imposed. In his appeal defendant raises four points: (1) the basic speed law prevails over specific statutory speed limits; (2) traveling in excess of a designated speed is not necessarily a violation of the law; it becomes so only when the basic speed law is violated; (3) the court erred in refusing to admit documentary evidence as to a mechanical limitation on the speed of defendant’s vehicle; (4) the finding was contrary to the manifest weight of the evidence; and (5) the fine was excessive.

EVIDENCE

Testimony of Officer Russell Genaze:

At 7:45 p. m. on June 25, 1967, while driving his squad car, he observed defendant driving a motorcycle on Lake Shore Drive at a speed of between 80 and 85 miles per hour. He gave chase while utilizing his siren and P. A. system loudspeakers. The defendant turned off at 22nd Street, proceeded to Indiana Avenue, took Indiana Avenue to Calumet, took Calumet back to 22nd, and then again turned onto Indiana Avenue where the officer was able to clock the defendant’s speed at more than 90 miles an hour between the 2000 block and the 1500 block.

Defendant then made a left turn onto 14th Boulevard and another left into an alley behind a fire station. The officer arrested him at that location. The speed of defendant’s vehicle was clocked on a calibrated Stewart-Warner speedometer. At the time of the arrest defendant said that he did not know that he was being chased.

Testimony of David Altman, defendant:

On the day in question he was driving his motorcycle when he noticed that the accelerator cable was not functioning properly, it was not releasing. He then pulled over on whatever street he was on to fix it. He had had no trouble with the accelerator sticking before.

The precise trouble was that the gas cable slipped out of the notch that connects it with the throttle. He was driving along trying to fix it; and then he pulled off to make the necessary repairs. He stopped the motorcycle by using the brakes and by reaching down and using the kill switch. He was repairing the motorcycle when the officer arrived.

He later had the motorcycle checked by a dealer. He had the receipt with him. He knows that he had gone over the speed limit when the accelerator was stuck, but it was impossible for him to have been going as fast as the officer claims because the motorcycle was geared for trail riding and hill climbing. He thought the bike would only do between 40 and 50 miles an hour but his dealer later told him it would do between 65 and 70 with that gearing. He knew he was not going 90 miles an hour but was going about 45. He did not look at his speedometer because he was too concerned with attempting to fix the accelerator cable. He was unaware of being chased by the police.

OPINION

Defendant’s first two arguments really combine into one, to wit, that in certain circumstances traveling in excess of the legal maximum speed is not a violation of the law. This contention derives from the language of section 49 of the Uniform Act Regulating Traffic on Highways (Ill Rev Stats 1967, c 95½, § 146). That section provides:

No person shall drive any vehicle upon any public highway of this State at a speed which (1) is greater than is reasonable and proper with regard to traffic conditions and the use of the highway, or endangers the safety of any person or property; or (2) is greater than the applicable maximum speed limit established by this Section or by a regulation or ordinance made pursuant to the provisions of this Article. The fact that the speed of a vehicle does not exceed the applicable maximum speed limit does not relieve the driver from the duty to decrease speed . . . when traveling upon any narrow or winding roadway, or when special hazard exists with respect to pedestrians or other traffic or by reason of weather or highway conditions; . . . . and the duty of all persons to use due care.

Defendant argues that subsection (1), to which he refers as the “basic speed law,” controls subsection (2) and is superior to it. Thus, the argument concludes, a person can exceed the applicable maximum speed limit and not be in violation of the statute if the speed attained can be shown to be reasonable and proper with regard to traffic conditions and the use of the highway and does not endanger the safety of any person or property.

An examination of the statute reveals that the “basic speed law” (subsection (1)) is a limitation on the speeds permitted under subsection (2) and cannot be construed to allow greater speeds than the maximum set under the authority of subsection (2). That the maximum speed allowed under subsection (2) is an absolute maximum is demonstrated by three facts. First, if the “basic speed law” were superior in all situations and a reasonableness test were to prevail, then there would be no need to set out any applicable maximum speed. The “applicable maximum speed limit” is that speed which the legislative authority determined to be the maximum speed at which a vehicle should be operated; and any speed in excess of that is a violation of the statute.

Second, the statute is in disjunctive form and thus must be construed to mean that a speed in excess of either provision of the statute constitutes a violation. Thus, regardless of conditions, it is a violation of the statute to travel at a speed in excess of the applicable maximum. Third, the second sentence of the section indicates that subsection (2) sets an absolute maximum speed and describes conditions under which speed must be decreased below the applicable maximum speed.

Defendant’s next argument starts out to be a contention that the trial judge improperly excluded certain receipts from a mechanic which would substantiate defendant’s story that there was a malfunction of his motorcycle. The argument degenerates into an attack on the trial judge’s conduct of the trial; and it concludes as a contention that there was prejudice against the defendant. After examining the record thoroughly we find not even the slightest hint of prejudice against the defendant. The court did not ignore the “niceties of the speeding law,” rather the court seemed most capable of discerning them.

The defendant argues that the trial judge improperly excluded certain mechanic’s receipts which he claims would show that the vehicle had a mechanical limitation on the speed which it could attain. The defendant testifiéd that the receipt would show that the bike would go between 65 and 70 miles per hour with the gearing he had. We find no prejudicial error in excluding them.

Defendant’s next contention seems to be that the judgment of the trial judge was against the manifest weight of the evidence. This is not the correct test to apply in the instant case because a violation of a State of Illinois statute, not a City of Chicago ordinance, is involved. We will treat it as an argument that thé defendant was not proven guilty beyond a reasonable doubt.

We hold that defendant was proven guilty beyond a reasonable doubt. In the first place there is his own admission on the witness stand that he was exceeding the speed limit; and secondly, as the Illinois Supreme Court said in People v. Clemons, 26 Ill2d 481, at page 484, 187 NE2d 260:

. . . [W]here a case is tried by the court without a jury, the determination of the credibility of the witnesses and the weight to be accorded their testimony is committed to the trial judge; and, unless it can be said that the court’s judgment is found to rest on doubtful, improbable or unsatisfactory evidence, or clearly insufficient evidence, a reviewing court will not substitute its judgment for that of the court below even though evidence regarding material facts is conflicting and irreconcilable. (People v. West, 15 Ill2d 171.)

No reason has been advanced to justify a reversal of the judgment.

Defendant finally contends, without argument or citation, that the fine was excessive. The fine levied was in the amount of $200 which was the maximum allowed under section 137 of the Uniform Act Regulating Traffic on Highways at the time of trial, and which we feel would not have been an abuse of discretion. However, the statute regulating penalties had been amended effective August 17, 1967, to raise the maximum fine from $100 to $200. Since the violation occurred on June 25, 1967, before the amendment became effective, only a maximum fine of $100 is applicable. Ill Rev Stats 1965, c 131, § 4.

The judgment is reversed and the cause remanded to the trial court with directions to enter a finding of guilty against defendant, judgment on the finding and the imposition of a fine of $100 plus costs.

Reversed and remanded with instructions.

ENGLISH and McNAMARA, JJ., concur.


author: MR. JUSTICE McCORMICK BURKE, J.,

text:
    Mrs. Frances Cunningham, Plaintiff-Appellant, v. MacNeal Memorial Hospital, Defendant-Appellee.
    Gen. No. 51,893.
    First District, Second Division.
    July 8, 1969.
    Rehearing denied August 5,1969.

      BURKE, J., dissenting.
    Horwitz, Anesi & Ozmon, of Chicago (Dario A. Garibaldi, of Flossmoor, of counsel), for appellant.
    Howard, French & Healy, of Chicago (John C. Healy, of counsel), for appellee.
   MR. JUSTICE McCORMICK

delivered the opinion of the court.

The plaintiff, Mrs. Frances Cunningham, was admitted to MacNeal Memorial Hospital in May 1960. While there she received several transfusions of whole blood and was infected with serum hepatitis, requiring that she have additional hospitalization.

The plaintiff filed a complaint praying for judgment in the sum of “$50,000.00 or such greater or lesser sum as the court or jury may award.” On October 14, 1966, a second amended complaint was filed, the one with which we are concerned. In that complaint the plaintiff made the following allegations, among others:

“That the defendant, MacNeal Memorial Hospital, as ancillary to the services rendered to the plaintiff sold and supplied her blood for the purposes of transfusion in the treatment of her condition. . . .
“That the defendant, MacNeal Memorial Hospital, in selling and supplying, had a duty to process and distribute the blood that was used in the transfusion of the plaintiff so that it was not defective and did not become unreasonably dangerous when put to the use for which it was processed, sold and distributed,
“That the blood sold and supplied by the defendant, . . . was defective and in an unreasonably dangerous condition and was in such condition at the time that it left the hands of the defendant, ....
“That as a direct and proximate result of the defective and unreasonably dangerous condition of the blood that was used in the plaintiff’s transfusion, the plaintiff then and there was caused to and did contract serum hepatitis.
“The plaintiff at no time had any knowledge of the defective condition of the blood and was at all times herein mentioned in the exercise of due care and caution for her own safety.
“That, as a direct and proximate result therefor, the plaintiff. was caused to require further hospitalization and seek further medical attention, and caused her to suffer great pain and discomfort and that she was required to and did lose long periods of time from her employment resulting in a loss of wages and income and that it is believed that her disability and condition were and are permanent in nature.”

The defendant did not file an answer to the complaint; instead, it filed a motion for judgment on the primary ground that the plaintiff was erroneously seeking to state a cause of action “against this defendant upon the theory that blood is a product, that such product was furnished in a defective and unreasonably dangerous condition and that by reason thereof defendant is strictly liable to plaintiff for her alleged damages.” The motion was presented on October 14, 1966, on which date the trial court entered an order stating:

“It is further ordered that defendant’s motion for judgment on the pleadings be and it is allowed; and, that judgment be and it is hereby entered in favor of defendant herein

The plaintiff filed a notice of appeal in which she requested that the order and judgment be set aside or reversed and that the defendant be ordered to answer plaintiff’s second amended complaint, and that the cause be ordered to be set for trial.

The question before this court is whether or not the doctrine of strict tort liability, as laid down in Suvada v. White Motor Co., 32 Ill2d 612, 210 NE2d 182 (1965), is applicable. The defendant contends that whole human blood is not a product, nor can it be the subject of a sale; and that the hospital, through its agents, merely performs a service in giving a blood transfusion.

In defendant’s brief it is noted that “none of the [blood] cases attaches liability or indicates the potential attachment of liability to a hospital for the furnishing of blood, . . . .” While it may be true that no case has directly attached liability to a hospital for the “furnishing of blood,” we cannot agree that none of the cases had indicated the potential attachment of such liability.

It is, of course, evident to any thinking person that with advanced scientific knowledge our daily lives are considerably changed, and the law also changes to cope with such advancement. As early as Wiedeman v. Keller, 171 Ill 93, 49 NE 210, our Supreme Court indicated in strong terminology its preference for imposing liability on retailers selling unwholesome meat, whether they were aware of its unwholesome condition or not. In that case Henry Keller, the defendant, was in the business of buying and selling meats and other foods at retail prices for domestic use. Although the court spoke in terms of implied warranty it would appear that the most important point in the case is that the warranty’s support was seen to be in public policy. The following language from that opinion (page 99) is relevant to the case before us:

“In an ordinary sale of goods the rule of caveat emptor applies, unless the purchaser exacts of the vendor a warranty. Where, however, articles of food are purchased from a retail dealer for immediate consumption, the consequences resulting from the purchase of an unsound article may be so serious and may prove so disastrous to the. health and life of the consumer that public safety demands that there should be an implied warranty on the part of the vendor that the article sold is sound and fit for the use for which it was purchased. It may be said that the rule is a harsh one; but, as a general rule, in the sale of provisions the vendor has so many more facilities for ascertaining the soundness or unsoundness of the article offered for sale than are possessed by the purchaser, that it is much safer to hold the vendor liable than it would be to compel the purchaser to assume the risk.”

In the instant case the defendant’s brief cites a number of cases and states that the reason for citing them is that “they have certain factors inextricably common to any case predicated upon strict tort liability. One of these factors is whether or not there has been a sale, within the meaning of the law, by the defendant to the plaintiff. Certain of these cases make a distinction between the furnishing of blood by a hospital and the furnishing of blood by a blood bank. However, none of the cases attaches liability or indicates the potential attachment of liability to a hospital for the furnishing of blood, . . . .” The defendant asserts that no liability can attach to it since nothing has been purchased. We feel that this conclusion is too simple and that to maintain an artificial barrier around blood is not sensible.

The first case which imposed strict tort liability in Illinois was Suvada v. White Motor Co., supra, in which the Illinois Supreme Court pointed out that Illinois law does not require a showing of privity of contract for one to maintain an action for breach of implied warranty; and the court further held that the rule of privity of contract is not applicable, stating at page 617:

“As early as 1847 this court approved of the holding in Van Bracklin v. Fonda, (NY 1815) 12 Johnson, 468, 7 Am D 339, that there is an implied warranty (strict liability) in the sale of food. (Misner v. Granger, 4 Gilm 69.) Dean Prosser has traced the theory of strict liability in the sale of food to the year 1431. (Prosser, Assault on the Citadel, 69 Yale LJ 1099.)”

The court cited and quoted from Wiedeman v. Keller, 171 Ill 93, 49 NE 210, and further pointed out that actions for breach of warranty in a food case by a party not in privity with the seller or the manufacturer are sanctioned on the ground that the implied warranty of the manufacturer or seller runs with the sale of the article. At page 618 the court in Suvada quoted from Jacob E. Decker & Sons v. Capps, 139 Tex 609, 617, 164 SW2d 828, 831-2, that “Here the liability of the manufacturer and vendor [of food] is imposed by operation of law as a matter of public policy for the protection of the public, and is not dependent on any provision of the contract, either expressed or implied.” At page 619 the court in Suvada stated: “The losses caused by unwholesome food should be borne by those who have created the risk and reaped the profit by placing the product in the stream of commerce.”

Suvada is a landmark case in Illinois law, and while it is true that the question actually decided in it was one of strict liability with reference to an action brought on account of a defective brake system for a tractor, nevertheless, the import of the decision lies in the fact that the court openly laid down the rule that liability was based, not on warranty, but rather on public policy.

It would appear that the real reason some would refrain from calling human blood a product is the belief that those dealing in it are doctors, hospitals and blood banks, who perform a meritorious service for the community and are entitled to preferential treatment from the law. However, our Supreme Court has indicated that a hospital should not be treated any differently from any other organization; at least, insofar as the rules of negligence are concerned. Darling v. Charleston Community Memorial Hospital, 33 Ill2d 326, 211 NE2d 253. In other words, we feel that those favoring special protection for hospitals of the kind they had enjoyed before the Darling decision, would read back into the law a preferential treatment for hospitals by circuitous means, such as concluding that blood is not a product, and that those handling it are to be treated differently from those handling “true” products.

In the instant case the defendant argues that blood cannot properly be classified as a product. In this connection we note that a Federal Trade Commission opinion was handed down in June 1964. The case involved the allegation that a hospital association, its members and fourteen hospital pathologists had illegally hampered and restrained “the exchange, sale and distribution of human blood.” In the Matter of Community Blood Bank of the Kansas City Area, Inc., docket number 8519, reported in FTC, 22,023 (issued June 8, 1964). The synopsis of the opinion noted that the examiner had rejected various “jurisdictional issues,” among them the claim that human blood was not subject to FTC control because blood was not an article of commerce. The synopsis quoted from the examiner’s findings that whole human blood “is viable human tissue mixed with an anticoagulant in a sterile container which must be stored and refrigerated and the admixture is a commodity and/or article of commerce under the administrative practice of National Institutes of Health,” and thus concluded that blood is subject to trade and commerce within the meaning of the terms as used in the FTC Act. It would then appear that for federal control purposes blood is considered an article of commerce and is subject to the prohibitions of federal statutory regulations; and that a federal agency has seen fit to classify blood as a product of commerce, thereby attaching potential penalties for the misuse of blood as would attach for the misuse of any other product under federal supervision.

Two federal district court opinions also evince a judicial attitude favoring an application of the word “product” to blood. In United States v. Calise, 217 F Supp 705 (SDNY), the defendant was charged in an 80-count indictment with several violations of the Public Health Service Act and the Federal Food, Drug and Cosmetic Act. Part of the offense charged involved a mislabeling of packages or containers. Under 42 USC 262(b) it is an offense to mislabel packages or containers “. . . of any virus, serum, toxin, antitoxin, or other product aforesaid; . . . .” The defendant had argued that that portion of the indictment alleging mislabeling of whole human blood did not allege an offense since “blood” was not a serum and therefore not within the purview of section 262. In rejecting this position the court said at page 708: “It cannot be said as a matter of law that the statutory terms do not include any serous fluid used for medical purposes.”

In United States v. Steinschreiber, 218 F Supp 426 (SDNY), the defendant was charged in part with unlawful transportation of unlicensed normal human plasma. The indictment was attacked on the ground that section 262 did not cover human plasma, that normal human plasma was not “a therapeutic serum or analogous product . . . applicable to the prevention, treatment or cure of diseases or injuries of man.” Therapeutic serum or analogous products were statutorily classified as “virus, therapeutic serum, toxin, antitoxin or analogous product, or arsphenamine or its derivatives . . . .” The court gave plasma its “commonly accepted meaning” and held the indictment sufficient, leaving for resolution at trial whether the Government could prove as a scientific fact that plasma was a therapeutic serum.

We feel that these cases support the view that, given a common sense meaning of terms such as whole human blood or plasma, one is led to the conclusion that they are within the general category of items which lend themselves to legislative and/or judicial control. We believe that this is the correct view and that there is no important meaningful distinction between blood, food or other products for the purposes here under consideration.

There have been opinions which have afforded protection to organizations such as hospitals and blood banks by finding that the transaction whereby the patient obtains the blood is not a sale, but rather is a service. The most notable of these cases is Perlmutter v. Beth David Hospital, 308 NY 100, 123 NE2d 792 (reh. den 308 NY 812). However, before discussing the Perlmutter decision, we feel that several observations should be made concerning the judicial climate in New York regarding the general topic of strict liability.

In William L. Prosser’s article, “The Assault Upon the Citadel (Strict Liability to the Consumer),” 69 Yale LJ 1099 (1960), he notes that New York was one of “two small islands of resistance” which continued to hold out against extending the impact of the famous case, MacPherson v. Buick Motor Co., 217 NY 382, which had abolished the necessity for showing privity of contract between the manufacturer and the consumer before an action would lie against the manufacturer by the consumer. Furthermore, at page 1109 Dean Prosser informs us that New York was also among those jurisdictions which rejected strict liability in food cases and continued to hold sellers of food not liable to consumers in the absence of negligence or privity of contract. Temple v. Keeler, 238 NY 344, 144 NE 635, (in which the court held that a restaurant which sold unwholesome food was liable on an implied warranty). Illinois, on the other hand, has long since adopted strict liability in such cases. (See cases cited at page 1107 of Dean Prosser’s article.) With this background of New York’s hostility to adoption of the principles of strict liability, the Perlmutter case is somewhat easier to comprehend.

In Perlmutter the trial court, as in the case before us, dismissed plaintiff’s complaint for failure to state a cause of action. The plaintiff allegedly sustained injuries from an impure blood transfusion which he had received while a patient in the defendant hospital. The Court of Appeals, in a four to three opinion, held that a paying patient in a hospital who receives impure blood through a transfusion cannot sue the hospital on the theory of a breach of warranty because the furnishing of blood was an incidental adjunct to the hospital services, and thus was not within the provisions of the Sales Act; therefore, the theory of breach of warranty was not available. In the course of the opinion the court discussed its view of the relationship between hospital and patient. At page 104, the court states that the contract between hospital and patient

“is clearly one for services, and, just as clearly, it is not divisible. Concepts of purchase and sale cannot separately be attached to the healing materials — such as medicines, drugs or, indeed, blood— supplied by the hospital for a price as part of the medical services it offers. . . . ‘ “Sale” and “transfer” are not synonymous,’ and not every transfer of personal property constitutes a sale.”

The court concluded that the service aspect of the relationship predominated, and therefore, the transaction involving the transfer of blood to the patient was not a sale within the New York Sales Act.

There was a strong dissent in the Perlmutter case which pointed out that for various reasons New York had granted charitable hospitals immunity from liability for negligence of their properly selected physicians and nurses. At page 110 of the opinion, the dissent states that this “rule has sometimes worked great hardship on persons injured,” and that the rule should therefore 'not be applied. As we have previously mentioned, the Illinois courts have restricted such immunity, and we agree with the dissent that the act of the hospital in selling blood should not be shielded from liability.

Other cases have followed the rule laid down in Perl-mutter; Koenig v. Milwaukee Blood Center, Inc., 23 Wis2d 324, 127 NW2d 50; Dibblee v. Dr. W. H. Groves Latter-Day Saints Hospital, 12 Utah2d 241, 364 P2d 1085. From the opinion in Dibblee it is apparent that the court felt hospitals were havens entitled to special protection not applicable to the rest of society.

In Russell v. Community Blood Bank, Inc. (Ct App Fla), 185 So2d 749, the court held that a cause of action existed against a blood bank for breach of implied warranty, and that the plaintiff could recover, if it could prove that the blood bank failed to detect or remove a harmful substance which was capable of removal. In commenting on the distinction of “service versus sale,” the court stated at page 752: “It seems to us a distortion to take what is, at least arguably, a sale, twist it into the shape of a service, and then employ this transformed material in erecting the framework of a major policy decision.” The court then expressly applied to the suit against the blood bank the reasoning of a prior decision which rejected the service theory in the sale of food by a restaurant.

In Gottsdanker v. Cutter Laboratories, 182 Cal App2d 602, 6 Cal Rptr 320 (1960), damages were recovered on behalf of two children who contracted polio from Salk vaccine which contained a live virus. Dean Page Keeton, in his article, Products Liability — Liability without Fault and the Requirement of a Defect, 41 Tex L Rev 855 (1963), stated at page 860: “At the time the case [Gottsdanker] came before the court, California, . . . had already imposed liability on the manufacturer-seller of food products.” That statement is, of course, applicable to the Illinois law at the present time. Dean Keeton further stated: “Therefore, it was a logical and almost necessary extension to apply the same principle to drugs.” It is difficult to see why blood used in transfusions should be distinguished from drugs; both are intended to be used in the human body for the purpose of healing.

We believe it is realistic and reasonable to hold that a sale is involved in the transaction whereby the patient comes into possession of blood. On oral statement in the case before us counsel for the hospital stated that a sale was not involved; that rather, there was an exchange of personal property for remuneration. That is an attempt to make a distinction without a difference. We agree with the opinion in Russell v. Community Blood Bank, Inc., supra, that to take a sale and twist it into a service is a distortion. We feel that under the holdings in the Suvada and the Darling cases, such a process would be wrongfully destructive of the framework erected by the Illinois Supreme Court.

In the instant case the defendant hospital urges that there is no way to determine or control the contamination of blood by hepatitis serum, and therefore, it would be unjustifiable to impose liability on the hospital. In particular, the defendant says that the only means by which the disease can be detected is of no value since use of the method results in the destruction of the whole blood; and that since the item cannot be made safe under our present knowledge, the hospital should not be held to strict liability. In her brief the plaintiff answers that blood can be made relatively safe for use by means of careful control over the source (the donors) ; and that recent research indicates a far greater possibility of an infected carrier living in a crowded, low-income area than in a middle-class residential area. In addition, plaintiff indicates several tests which can be taken to indicate whether a particular donor might be a carrier.

It is our feeling that argument on either side of this issue is premature at this point. As stated in United States v. Steinschreiber, supra, such matters are for resolution at the trial level. Also, see dissent in Perl-mutter v. Beth David Hospital, supra. We have before us only the complaint, the motion, and the order of dismissal. On the basis of such a record, we cannot determine that one party or the other is correct in its position with reference to the possibility of making the blood safe. The defendant hospital may choose to defend its position at trial on the ground that blood is incapable of being made safe, and we will not make any statement or any point beyond the issue presently before this court.

That issue is whether or not the plaintiff has stated a cause of action in her complaint. It is our finding that the plaintiff has stated a cause of action and is entitled to try to prove her case. The defendant has moved to strike portions of plaintiff’s brief and abstract and to dismiss the appeal. All of these motions were taken with the case and all of them are now denied.

The judgment of the trial court sustaining defendant’s motion to dismiss the complaint, and the judgment entered in favor of the defendant are reversed. The defendant is ordered to file an answer to plaintiff’s second amended complaint, and the case shall proceed to trial.

Reversed and remanded.

LYONS, P. J., concurs.

BURKE, J.,

dissents:

We are asked to decide whether the doctrine of strict tort liability includes within its purview, a hospital which ancillary to the services rendered a patient furnishes, by way of transfusion, blood which contains serum hepatitis. The complaint herein does not seek recovery under the theory of negligence. A leading case in this field, Perlmutter v. Beth David Hospital, 308 NY 100, 123 NE2d 792, pointed out that the main object sought to be accomplished by the hospital in that case was the care and treatment of the patient and that the supplying of blood by the hospital was entirely subordinate to its paramount function of furnishing trained personnel and specialized facilities in an endeavor to restore plaintiff’s health. That the furnishing of blood by a hospital is an adjunct to the contract for services and not a sale was similarly held in Koenig v. Milwaukee Blood Center, Inc., 23 Wis2d 324, 127 NW2d 50; Goelz v. J. K. and Susie L. Wadley Research Institute and Blood Bank (Tex Civ App), 350 SW2d 573 (1961). In Dibblee v. Dr. W. H. Groves Latter-Day Saints Hospital, 12 Utah2d 241, 364 P2d 1085, the court said, p 243:

“We do not say that hospitals should be immune from negligence, but we think they should not be strapped with an insurability of blood purity, absent negligence. ... To conclude otherwise could lead to the unhappy and unfortunate conclusion that such institutions, of necessity, might require the patient (perhaps unconscious) to bring with him his own transfusion of blood.”

Section 1606 of the California Health and Safety Code reads:

“The procurement, processing, distribution or use of whole blood, plasma, blood products and blood derivatives for the purpose of injecting or transfusing the same or any of them, into the human body is not a sale but the rendition of a service.”

The State of Arizona in its Statutes, section 36-1151, Public Health and Safety, and in the case of Whitehurst v. American Nat. Red Cross, 1 Ariz App2d 326, 402 P2d 584, follow the philosophy expressed in the Perlmutter case.

In Suvada v. White Motor Co., 32 Ill2d 612, 210 NE2d 182, our Supreme Court, 621, noted that the views “herein expressed coincide with the position taken in 402A of the American Law Institute’s Revised Restatement of the Law of Torts” and calls attention to the fact that the section provides:

“(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if
“(a) the seller is engaged in the business of selling such a product, and . . . .”

Each of the cases which has sprung from the doctrine of strict tort liability has dealt with a commercially prepared for profit product. Blood, the essence of life has come to us from Him who created that life.

Comment “k” in the Restatement of the Law (Second) Torts, § 402A indicates that: “There are some products which, in the present state of human knowledge, are quite incapable of being made safe for their intended and ordinary use.” The authors of the comment conclude that:

“The seller of such products, again with the qualification that they are properly prepared and marketed, and proper warning is given, where the situation calls for it, is not to be held to strict liability for unfortunate consequences attending their use, merely because he has undertaken to supply the public with an apparently useful and desirable product, attended with a known but apparently reasonable risk.”

The defendant has not placed any reliance upon the doctrine of charitable immunity. The furnishing by a hospital of blood to a patient, through transfusion, is not a sale of the blood but is incidental to the services for which the patient has contracted. The trial judge was right and the judgment should be affirmed.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Herman Robinson, Defendant-Appellant.
    Gen. No. 53,138. (Abstract of Decision.)
    First District, Second Division.
    July 8, 1969.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Herbert Becker, Norman W. Fishman, James J. Doherty, Assistant Public Defenders, of counsel), for appellant; Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Patrick T. Driscoll, Jr., Assistant State’s Attorneys, of counsel), for appellee.
   Opinion by JUSTICE BUBKE. Not to be published in full.


author: MR. JUSTICE ENGLISH

text:
    Villette Allfree, Claimant-Appellant, v. Estate of Frieda Rosenthal, Deceased, Defendant-Appellee.
    Gen. No. 51,961.
    First District, Fourth Division.
    July 9, 1969.
    Rehearing denied August 20,1969.

      John H. Hanson and Victor E. Karlsen, of Chicago, for appellant.
    Black and Beermann, of Chicago, for appellee.
   MR. JUSTICE ENGLISH

delivered the opinion of the court.

This appeal is from denial of a claim against the Estate of Frieda Rosenthal in the amount of $6,500 (subsequently reduced by claimant to $4,000) for room, board, and personal services furnished to decedent during the five-year period from 1960 to the time of her death in September 1965. The theory of claimant’s case is that there was an express understanding and agreement that decedent would pay a fair and reasonable price for those services, that price being $25 per week. A hearing was held without a jury, and at the close of claimant’s case, the court, on defendant’s motion, dismissed the claim. The court also denied claimant’s motion to reconsider or, in the alternative, to grant a new trial.

First, we are concerned with section 64 (4) of the Civil Practice Act, which provides:

(4) Upon the trial of a proceeding in equity and in cases at law tried without a jury defendant may, at the close of plaintiff’s case, move for a finding, judgment or decree in his favor. In ruling on the motion the court shall weigh the evidence. . . . (Emphasis supplied.) Ill Rev Stats (1965), c 110, § 64 (4).

Claimant contends that on a motion such as the one in the instant case for a finding in favor of the estate at the close of claimant’s case, the trial court must decide whether “all of the evidence in favor of the claimant, taken to be true, together with all legitimate inferences, fairly tends to sustain the cause of action”; that the court has no right to pass on the credibility of the witnesses, or to consider the weight or the quality of the testimony, or any purported impeachment, citing Moldenhauer v. Krynski, 62 Ill App2d 382, 210 NE2d 809, and Continental Illinois Nat. Bank v. National Casket Co., 27 Ill App2d 447,169 NE2d 853.

The Moldenhauer case is inapplicable because it involved a jury trial. The opinion in the Continental Illinois Nat. Bank case did approve the proposition for which claimant contends, but it makes no mention of the statute quoted above and expressly relies upon a number of cases, all of which preceded the 1955 amendment of the statute which added the sentence directing the court to “weigh the evidence.” Our assumption is that the attention of the court in the Continental Illinois Nat. Bank case had not been directed to the statutory change. The legislative intent seems to us perfectly clear and directly contrary to claimant’s contention. See Miller v. Heller, 106 Ill App2d 383, 392-393, 246 NE2d 150, and Brubaker v. Gould, 34 Ill App2d 421, 440-450, 180 NE2d 173. From this viewpoint, therefore, we shall review claimant’s evidence.

Claimant testified that she had known the decedent for fifteen or twenty years. Further testimony as to the relationship between claimant and decedent was objected to on the basis of the “Dead Man’s Act.” Ill Rev Stats (1965), c 51, §2. The objections were properly sustained. Mayo v. Mayo, 302 Ill 584, 135 NE 90; Estate of Moore, 310 Ill App 365, 33 NE2d 130; Estate of Niehaus, 341 Ill App 454, 94 NE2d 525.

Sam Gerhardt testified that he was the janitor in the building where decedent had lived for twenty-one years. He had known her for sixteen years and had had frequent conversations with her. In 1960, she had gone to live with claimant, although she did not then remove her furniture from the apartment. He and his wife had visited decedent at claimant’s apartment two or three times and she had visited them six or eight times. In 1962, just before decedent did have her furniture moved, he had a conversation with decedent in the presence of claimant. During this conversation, claimant told him that decedent was not giving her any money and she (decedent) wanted to move back. He said that decedent couldn’t live alone and that the only alternative to her living with claimant was to put her in a county convalescent home, which would be more expensive. Decedent stated that she had money, and they parted with the understanding that she would pay claimant $25 a week for her room and services. Decedent lived with claimant until her death. She had seemed to be in fair health for a woman her age, seldom going to doctors or dentists.

Mrs. Kathryn Gerhardt testified that she became acquainted with claimant through several visits made with decedent. Decedent lived her last five years with claimant, who cooked for her and accompanied her to a doctor and a dentist. Decedent took her meals with claimant and she did little housework. Many times she was unable to do anything but “go out of the house and go to the store.” On one occasion, the witness saw decedent have an epileptic fit, and she stayed with her for a half hour.

Claimant was not related to decedent. When there is no family relationship, such a claim may be allowed upon a showing of either an express or an implied contract or obligation on the part of the decedent. An express contract may be proved by an actual agreement, by direct evidence, by the express words used by the parties, and also by circumstantial evidence. Rush v. Estate of Rush, 27 Ill App2d 242, 246, 169 NE2d 538. To recover under an express contract, the claimant must prove the contract by clear and convincing proof. Floyd v. Estate of Smith, 320 Ill App 171, 50 NE2d 254. An implied contract may be proved by circumstances showing that the parties intended to contract, and by the general course of dealing between them, their acts, expressions, and conduct. Rush v. Estate of Rush, supra; In re Estate of Mallas, 100 Ill App2d 88, 241 NE2d 482. To establish a contract it must be shown by the facts and circumstances that, at the time the services were rendered, one party expected to receive payment, and the other expected to make payment. Thus, where no kinship or family relationship exists between the parties and one accepts the benefits of another’s services, which were rendered at his insistence and request, and which he had no reason to suppose were gratuitous, the law will imply liability for the services in such amount as they are reasonably worth. Floyd v. Estate of Smith, supra; McRoberts v. Kennedy, 52 Ill App2d 34, 201 NE2d 680; In re Estate of Mallas, supra; Runowicz v. Rock Island Bank & Trust Co., 90 Ill App2d 222, 232 NE2d 459. Claimant, under the facts now before us, however, failed to establish an evidentiary basis for recovery under either an express or an implied obligation theory.

Although it is clear that decedent lived with claimant from 1960, there was no adequate showing that claimant expected to be paid or that decedent expected to pay for claimant’s services. There were no records, accounts, or bids. A gratuitous intent in furnishing the service gains support from the concern of decedent’s acquaintances for her health and the particularly long lasting acquaintance of claimant and decedent. McRoberts v. Estate of Kennedy, 52 Ill App2d 34, 38, 201 NE2d 680.

There does not appear to have been any demand for payment until 1962, and, when such a demand was made, decedent was apparently willing and able to pay, according to Gerhardt’s testimony. There was thus some evidence that sometime in 1962 decedent had expressly agreed to pay claimant $25 per week for her services. We agree with the comment of the trial judge, however, that this testimony was rather vague. In any event, this agreement, if such it was, may well have been satisfied by a payment of $2,500 made by decedent to claimant in 1965. Claimant made no accounting of this money except by her counsel’s offer, in the midst of trial, to reduce the claim to $4,000, although it had been filed on April 20, 1966, with claimant’s verification in the amount of $6,500. We note also that there is no evidence that claimant was not paid anything for the period 1960 to 1962.

The order of the Circuit Court is affirmed.

Affirmed.

McNAMARA and STAMOS, JJ., concur.


author: MR. JUSTICE STAMOS

text:
    Dr. John V. Wolfe and Helen L. Wolfe, Plaintiffs-Appellants, v. John Endres and Virginia Endres, Defendants-Appellees, and Helen Guilbert, Inc., Helen Guilbert and John D. Wolfe, Defendants.
    Gen. No. 52,320.
    First District, Fourth Division.
    July 9, 1969.
    Rehearing denied September 11, 1969.

      Albert Koretzky, of Chicago, for appellants.
    Aplon, Bennett, Alexander & Levine, by Harold I. Levine, of Chicago, for appellees.
   MR. JUSTICE STAMOS

delivered the opinion of the court.

Dr. John V. Wolfe and his wife, Helen L. Wolfe, plaintiffs, appeal from an order granting John Entires and his wife, Virginia Entires, defendants, leave to appear and defend against a judgment entered by confession on a promissory note and from a judgment in favor of the defendants after a jury trial.

Plaintiffs contend: (1) the petitions to open the judgment by confession did not disclose a meritorious defense or diligence; (2) special interrogatories were inconsistent with the general verdict; (3) the verdict was not based on the instructions; (4) fraud was not alleged nor established by the evidence; and (5) the court erred in admitting parol evidence.

On February 27, 1963, in the Municipal Court of Chicago, plaintiffs secured a judgment by confession on a promissory note against Helen Guilbert, Inc., Helen Guilbert, John D. Wolfe, John Entires and his wife Virginia Entires in the amount of $16,622.48 and costs, which included $3,882.92 for interest and $872.02 attorney’s fees. On May 8, 1963, plaintiffs caused writs of execution to issue and service was had on defendants on June 6, 1963; and on August 22, 1963 citations in supplemental proceedings were served upon defendants. On October 17, 1963 a verified petition filed by John and Virginia Entires moved the court to open the judgment by confession and alleged: (1) defendants executed the promissory note as agents of Helen Guilbert, Inc., and not in their individual capacities; (2) the note was given for a loan made to Helen Guilbert, Inc., and defendants did not receive any part of the proceeds; (3) defendant John Entires was not an active agent or officer of Helen Guilbert, Inc., and had never received any compensation or income from that corporation ; (4) said corporation was indebted to defendant John Entires; defendant Virginia Entires was not associated with said corporation in any manner; (5) there was no consideration for them to execute the note in their individual capacities in that they received no consideration or benefits from the proceeds advanced by plaintiffs to Helen Guilbert, Inc.; and (6) plaintiffs were the parents of John D. Wolfe who was the son-in-law of Helen Guilbert (the other co-makers) and defendants are not related by blood or marriage to plaintiffs or the other individuals who executed the note and it is these individuals who received a consideration and not defendants.

A supplemental petition was filed in support of the initial petition and was executed by the attorney for defendants under a verification that his allegations were being made pursuant to information and belief. The supplemental petition alleged: (1) since the initial petition to open the judgment was filed, defendants had ascertained and were informed that a substantial part, if not all, of the indebtedness had been paid by one of the codefendants; (2) that since the time the judgment by confession was entered there was an understanding by and between all of the parties that all matters would remain in status quo until such time as a settlement of the differences between the parties would be consummated ; (3) contrary to said understanding plaintiffs filed a transcript of the judgment by confession with the Superior Court of Cook County and commenced citation proceedings in that court; (4) that as soon as defendants received notice of the citation proceedings, defendants took measures to vacate and set aside the judgment. On December 17, 1963, the court granted defendants leave to appear and defend. On October 6, 1966, after a jury verdict, judgment was entered in favor of defendants.

OPINION

We will first consider the order of December 17, 1963, giving defendants John and Virginia Sndres leave to appear and defend. Judgment debtors Helen Guilbert, Inc., Helen Guilbert and John D. Wolfe sought no relief from the judgment.

Defendants’ petition to open the judgment by confession was governed by the Civil Practice Rules of the Municipal Court of Chicago. Opening judgments by confession was regulated by Rule 2, § 23 (2) which provided in part:

“A motion to open a judgment by confession shall be supported by affidavit as provided by Section 15 of Rule 2 for summary judgments. ... If the motion and affidavit disclose a prima facie defense on the merits to the whole or a part of plaintiff’s demand and the court finds that defendant has been diligent in presenting his motion to open the judgment, the court shall then sustain the motion either as to the whole of the judgment or to that part to which a good defense is shown, and the case thereafter proceeds to trial upon the statement of claim, motion and affidavit and any further pleadings which are required or permitted.”

Rule2, § 15(1) provided:

“Affidavits . . . shall be made on the personal knowledge of the affiants; shall set forth with particularity the facts upon which the claim, counterclaim or defense is based; shall have attached thereto sworn or certified copies of all papers upon which the affiant relies; shall not consist of conclusions but of facts admissible in evidence; and shall affirmatively show that the affiant, if sworn as a witness, can testify competently thereto. If all of the facts to be shown are not within the personal knowledge of one person, two or more affidavits shall be used.”

See also Chapin v. Raven, 23 Ill App2d 512, 163 NE2d 229 (1959) (Abst).

An examination of defendants’ initial petition recites a legal conclusion that defendants executed the note as agents of a corporation. There is no allegation reciting a lack of consideration for the note, only that defendants did not receive consideration.

In Harris Trust & Savings Bank v. Neighbors, 222 Ill App 201, 204 (1921), the court said:

“Although it [the affidavit] alleged that the appellant did not receive any consideration for the signing of the note, it did not allege that the note was without consideration. Notwithstanding the allegations of the affidavit, a consideration for the note might have moved from some third party which would be sufficient to support it.”

A recitation of the family relationships or the lack of such affinity was irrelevant to the issues.

Thus we find that the petition to open the judgment by confession was lacking in the assertions of facts, as required by the rules, to show a prima facie defense that would justify the trial court’s action. Also, this petition did not allege any facts to establish diligence on defendants’ part.

An examination of the supplemental petition reveals it was executed by defendants’ attorney under a verification predicated upon information and belief. The first paragraph is devoid of facts that could be testified to by affiant, but merely asserts that defendants “have ascertained and are informed” an “unnamed codefendant” has paid “part, if not all” of the balance due on the note. We find no meritorious defense in the petitions.

The balance of the supplemental petition is devoted to asserting conclusions that the parties had been conferring since the time the judgment was entered and had reached an understanding to maintain a status quo until such time as they settled their differences. This is not presented as a defense, but as an endeavor by defendants to exculpate themselves from being charged with a lack of diligence.

The Municipal Court of Chicago, Rule 2, section 23 (2) in part provided:

“Unless the defendant admits prior notice, delay in presenting a motion for 30 days after service of execution shall not be deemed to constitute want of diligence.” (Emphasis supplied.)

Defendants’ supplemental petition at paragraph 2 stated:

“That all of the parties hereto have been conferring with and through their attorneys from the time the judgment was entered by confession on the note. . . .” (Emphasis supplied.)

Both defendants were served with executions on June 6, 1963. Citations in supplemental proceedings were served on both defendants on August 22, 1963. Defendants appeared in court and at their request were granted a continuance in the citation proceedings. Even so they did not file petitions to open the judgment until October 17, 1963.

Defendants rely upon Ellman v. DeRuiter, 412 Ill 285, 106 NE2d 350 (1952); Elfman v. Evanston Bus Co., 27 Ill2d 609, 190 NE2d 348 (1963); Jansma Transp., Inc. v. Torino Baking Co., 27 Ill App2d 347, 169 NE2d 829 (1960), in support of their contentions of diligence and disclosure of a prima facie meritorious defense.

Defendants correctly argue that these cases are authority for the proposition that the court can use its equitable powers to prevent an injustice.

In Ellman, supra, the defendant was misled by the actions of plaintiff. In Elfman, supra, the opinion relied upon the alleged serious illness of the attorney’s mother, a meritorious defense and the allegation that opposing counsel took advantage of petitioner’s attorney’s absence. In Jansma, supra, the plaintiff had failed to properly serve defendants with summons.

In the instant case, no facts are alleged to show that defendants were relying upon the purported continuation of a status quo understanding which defendants allege had its inception from the day judgment was entered, nor could they have been alleged, since the writ of execution was served on June 6, 1963 and a citation summons on August 22, 1963. The supplemental petition does not recite facts that show plaintiffs were responsible for defendants’ failure to move expeditiously and with alacrity to open the judgment by confession. No diligence was shown.

We therefore hold the trial court erred in granting leave to defendants to appear and make a defense with the judgment to stand as security.

Plaintiffs also complain of errors in the trial after the judgment by confession was opened. Since we are reversing the judgment for failure of defendants’ petition to set forth either diligence or a meritorious defense, we need not consider alleged errors at the trial.

The judgment of October 6, 1966, and the order of December 17, 1963, granting leave to appear and defend are reversed and the cause remanded with directions to deny defendants’ petitions which sought to vacate or open the judgment by confession.

Reversed and remanded with directions.

DRUCKER, P. J. and ENGLISH, J., concur.

       This was substantially Supreme Court Rule 23 now incorporated in Supreme Court Rule 276, Ill Rev Stats 1969, c 110A, §276.


text:
    John P. Zito, d/b/a Mary Ann’s Tavern, Plaintiff-Appellant, v. Illinois Liquor Control Commission, Defendant-Appellee.
    Gen. No. 52,432.
    First District, Fourth Division.
    July 9, 1969.

      Stewart D. Spitzer and Jesse H. Brown, of Chicago, for appellant.
    William G. Clark, Attorney General of State of Illinois, of Chicago (John J. O’Toole and A. Zola Groves, Assistant Attorneys General, of counsel), for appellee.
   MR. JUSTICE STAMOS

delivered the opinion of the court.

Plaintiff, John P. Zito, doing business as Mary Ann’s Tavern, filed a statutory action in the Circuit Court under the Administrative Review Act, Ill Rev Stats, c 110, §§ 264-279 (1967), to review the administrative order of the defendant, Illinois Liquor Control Commission, which revoked plaintiff’s previously issued license. The court affirmed the order of the Commission and this appeal followed.

A citation to show cause why his license should not be suspended or revoked was served on plaintiff on November 4, 1966. It alleged the following violations of Revised Rule 3 of the Rules and Regulations of the Commission:

(1) That the licensee, or his agents, did violate the ordinance of the Village of Melrose Park in that they served alcoholic spirits on the licensed premises after 6:00 a. m. on October 15,1966;

(2) That the licensee, or his agents, did permit a shooting to occur on the licensed premises as a result of which one patron was charged with murder;

(3) That the licensee is of such reputation that he should show cause why the Commission should not suspend or revoke his retail state liquor license.

Plaintiff contends that there was no substantial evidence to support any of the charges contained in the Commission’s citation to show cause and that the court erred in not striking from the answer certain documents not in evidence which were included in the certified record furnished by the Commission.

The record discloses that the following testimony was given at the hearing before the Commission:

ROBERT NARDELLA, called as a witness on behalf of the Illinois Liquor Commission testified as follows:

He is a detective in the Melrose Park Police Department and on October 15, 1966 he had the occasion to participate in an investigation at the plaintiff’s tavern. At 6:32 a. m. he was off duty and at his home when he received a call from the police station that a shooting had occurred at plaintiff’s tavern. Upon arrival at the tavern at 6:50 a. m. he and his partner were met by police officers DiSantis and Stellotto who turned over to them a .45 calibre automatic taken from Matías Monte-mayor who had been apprehended fleeing the scene and arrested for the fatal shooting of Mrs. Daphne Studt. Plaintiff had an all night license which required his tavern to be closed from 6 to 7 a. m.

JAMES V. SAMMAURO, called as a witness on behalf of the Illinois Liquor Commission testified as follows:

He is a part-time bartender at- the tavern and was on duty October 15, 1966 and was present when the shooting took place, but did not see what occurred. The shooting occurred at about 5:50 a. m. and the witness called the police. He could not say at what time the police arrived, but testified it was quite a while after he called for them, although the police station is only three blocks from the tavern. He was paid for his services in cash by the tavern owner and works only on the weekends. In July of 1964 the witness was arrested for violation of probation. He further testified nothing was served after 6:00 a. m. and about 19 or 20 patrons were in the tavern at the time the shooting took place. He heard the shot and had no knowledge before the shooting that anyone in the tavern was in possession of a firearm. The plaintiff advised him to call the police and directed the patrons not to leave and they remained waiting for the police.

JAMES DIAFEBIA, called as a witness on behalf of the Illinois Liquor Commission testified as follows:

He is a police sergeant with the Melrose Park Police Department and accompanied Detective Nardella to the tavern in response to a call that a shooting had occurred and they arrived at approximately 6:55 or 6:50 a. m. He was off duty and at his home when he responded to the call. The witness participated in the interview of five persons regarding the shooting.

JOHN P. ZITO, called as a witness on behalf of the Illinois Liquor Commission testified as follows:

He was the licensee of the tavern and was present when Mrs. Studt was shot and killed in the tavern. He had been arrested on February 2, 1963, March 9, 1963, December 17, 1961 and January 24, 1955.

JOHN HALLMAN, called as a witness on behalf of the Illinois Liquor Commission testified as follows:

He is a special agent with the Federal Bureau of Investigation and on November 17, 1966, he visited plaintiff’s tavern and observed a liquor license issued by the Village of Melrose Park and recalled it had been issued to plaintiff John P. Zito.

ANTHONY F. IOSCO, called as a witness on behalf of the Illinois Liquor Commission testified as follows:

He is chief of police of the Village of Melrose Park and the police department records reflect that they received a call at 6:32 a. m. that a woman was shot at plaintiff’s tavern. He did not arrive on duty until 9:30 a. m. The records of the department show that within a minute three calls were received at the station advising that a shooting had occurred at the tavern.

ALLIEO DISANTIS, called as a witness on behalf of the Illinois Liquor Commission testified as follows:

He is a police officer with the Melrose Park Department and on the morning of October 15, 1966 he was on duty and in a police car when he received a radio message that a shooting had occurred at plaintiff’s tavern which was one block away. He received the call at 6:32 a. m. At the time he and his partner received the call they were engaged in checking the taverns regarding closing hours. When they arrived at the tavern they observed two men running from the tavern and took them into custody and one of the prisoners, Matías Montemayor, told the witness that he had just shot a woman in plaintiff’s tavern a few minutes ago. After the prisoner was apprehended the witness brought him back to the plaintiff’s tavern. The witness remained until police detectives arrived and removed the tavern patrons to the police station.

CHESTER CARSON, called as a witness on behalf of the Illinois Liquor Commission testified as follows:

He is the president of the Village of Melrose Park and the records of the village show that the plaintiff had been issued a local liquor license and was in possession of it on October 15, 1966.

ALFRED E. PRIGNANO, called as a witness on behalf of plaintiff, testified as follows:

He is a funeral director and has been in business in Melrose Park for twenty years. He had known plaintiff for 30 years and he knows the general reputation of plaintiff in the community in which he resides for honesty, integrity and for being a peaceful and law-abiding citizen and that plaintiff’s reputation is good. To the best of the witness’s knowledge he did not know if plaintiff had ever been arrested.

PATSY B. MOGNOLO, called as a witness on behalf of plaintiff, testified as follows:

He has lived in Melrose Park for 38 years and has known plaintiff all that time. The witness is a building contractor and knows plaintiff’s reputation in the community for honesty, integrity and for being a peaceful and law-abiding citizen and it is very good. He sees plaintiff practically every day and the witness knows that plaintiff had been previously arrested but never convicted.

JOHN P. ZITO, testified on his own behalf, as follows:

He was the licensee of Mary Ann’s Tavern and on October 15, 1966 there was a shooting in the tavern, but the witness had no knowledge that the patron, Matías Montemayor, was carrying a gun or any weapon nor did any of plaintiff’s employees have such knowledge.

Neither the witness nor any of his employees had any knowledge of the reason for the shooting. He testified that at the time of the shooting he was in the men’s room repairing a clogged sink when he heard the shot which sounded like a firecracker. He ran out of the restroom into the tavern and observed the deceased on the floor. The witness directed that the doors be locked and that no one leave the premises. He then told the bartender to call the police and they arrived in 15 or 20 minutes. Everyone was interrogated by the police. Plaintiff placed letters of commendation into evidence received during his service in the U. S. Army.

The Commission revoked plaintiff’s license; On administrative review the Circuit Court affirmed and plaintiff appealed.

OPINION

Under the Administrative Review Act, the findings and conclusion of the Commission on questions of fact are held to be prima facie true and correct. Ill Rev Stats, c 110, § 274 (1967). The reviewing court is limited to a consideration of the record to determine if the findings and orders of the Commission are against the manifest weight of the evidence. Nechi v. Daley, 40 Ill App2d 326, 188 NE2d 243 (1963). The findings must be based on substantial evidence. Bruce v. Department of Registration and Education, 26 Ill2d 612, 187 NE2d 711 (1963).

The Administrative Review Act, Ill Rev Stats, c 110, § 272 (b) provides, inter alia: “. . . an answer shall consist of the original or a certified copy of the entire record of proceedings under review, including such evidence as may have been heard. . . .” Section 274 of the Administrative Review Act provides, inter alia: “No new or additional evidence in support of or in opposition to any finding, order, determination or decision of the administrative agency shall be heard by the court.”

Plaintiff complains that the trial court abused its discretion in refusing to strike certain portions of the answer filed in response to the complaint for administrative review. The record shows that certain prejudicial documents were neither marked or offered in evidence at the Commission hearings, nor filed therein nor any evidence heard thereon, but were certified in the record as part of the answer by the Illinois Liquor Commission. Neither in this court nor in the trial court did the Commission contend that these documents are properly in the record, but it argues that the court properly denied plaintiff’s motion to strike these documents because the motion to strike was not filed within twenty-one days after the answer was due and was thus too late under Supreme Court Rule 182 (c), Ill Rev Stats, c 110A, § 182 (c) (1967):

“A motion attacking a pleading other than the complaint must be filed within 21 days after the last day allowed for the filing of the pleading attacked.”

The documents complained of by plaintiff were letters, reports and memoranda furnished to the Illinois Liquor Commission and its chairman before any hearings in this matter commenced. The documents complained of were: an FBI report and memoranda which included comments about and arrest records of plaintiff; an arrest warrant and complaint for Matías Montemayor; correspondence from the United States District Attorney regarding plaintiff; and correspondence from the Mel-rose Park Liquor Commissioner to the Cook County Sheriff’s Police Department and to the Illinois Liquor Commission. Since the contents of the answer must be in conformity with section 272 of the Administrative Review Act and since they were not properly a part of the record, the trial judge could not consider them and neither can we. See Nickle v. Board of Appeals, 41 Ill App2d 173, 179, 190 NE2d 136 (1963). We cannot find that plaintiff’s failure to move to strike an answer in an administrative review proceeding within the time limit of the Supreme Court Rule should result in the approval of a record which is contrary to the provisions of a specific statute and contrary to the certification of the Commission’s secretary.

Therefore we shall consider only the record of proceedings without recourse to the documents made part of the answer in the Circuit Court.

Plaintiff further contends that the decision of the Commission was unsupported by substantial competent evidence. McNary v. County Board of School Trustees, 64 Ill App2d 165, 211 NE2d 141 (1965).

In regard to the first charge in the citation that plaintiff, or his agents, served alcoholic spirits on the licensed premises after 6:00 a. m. in violation of the Village of Melrose Park ordinance the Commission addresses itself to this point in its brief and argument with the following:

“Violation of an ordinance of a village is ground for revocation of a liquor license. The evidence leaves no doubt that plaintiff’s place of business was open for business during hours it should have been closed.”

and concludes:

“It is respectfully submitted that the violation of keeping the tavern open between 6:00 and 7:00 a. m. has been established and the trial court should be affirmed.”

We agree that a violation of an ordinance may be a ground for revocation of a liquor license, and that there is evidence to establish that plaintiff was open after 6:00 a. m., in violation of the ordinance governing dram shops. The Commission however, elected to proceed with the charge of serving alcoholic spirits after closing hours.

The Commission in support of its position cites the following cases: Richards v. City of Bayonne, 61 NJL 496, 39 A 708, (1898); Lynch v. People, 16 Mich 472 (1868); and 23A Words and Phrases.

In Richards, supra, it was held that the proprietor of a licensed saloon was properly convicted of a violation of an ordinance that forbade “keeping open” on Sunday. In Lynch, supra, the court held that to “keep open” implied a readiness to carry on the usual business therein and Words and Phrases, supra, expressed varying interpretations of “keeping open for business.” The Commission’s argument under this point was devoted substantially, if not almost entirely, to contending that the evidence established plaintiff’s violation of the village ordinance pertaining to closing, not the serving of alcoholic liquor spirits after prohibited hours as charged in the citation.

The Commission contends that the plaintiff’s tavern was open after closing hours and that 19 or 20 people were on the premises. It argues that this raises an inference that alcoholic spirits were served in violation of the ordinance. We are therefore asked to infer that the persons on the premises were served and further infer that if they were served, they were served alcoholic spirits as charged in the citation and further infer that the service occurred after 6:00 a. m.

The foregoing is not tantamount to establishing the serving of alcoholic spirits by substantial evidence. The bartender testified as a witness for the Commission that no one was served after 6:00 a. m. and that no one was permitted to leave the premises. Although several police officers testified that they were summoned to the premises, the record is silent as to whether they observed any person drinking, in the possession of or being served alcoholic spirits. We cannot conclude that under all these circumstances there was any substantial evidence of selling liquor during the prohibited hours.

The second charge in the citation is that plaintiff permitted a shooting to occur on the licensed premises. The record in regard to this portion of the citation is lacking in any evidence that would establish that plaintiff, or his agents, permitted a shooting. The Commission does not argue the point in its brief.

The third and final portion of the citation alleges that the plaintiff “is of such reputation that he should show cause why this Commission should not suspend or revoke his retail state liquor license.”

The only evidence in the record on behalf of the Commission concerning the reputation of plaintiff was developed in the examination of the plaintiff by the Commission. The plaintiff testified he had been arrested on four occasions. There was no further pursuit of this area of interrogation to determine the charges, dispositions or convictions, if any, regarding these arrests. Plaintiff also testified on cross-examination that he had a Federal Wagering Stamp in 1960. Plaintiff introduced letters of commendation received from his Army Commanding Officers during his military service, an honorable discharge from the Army in 1945, and an honorable discharge from the Army Reserve as a First Sergeant in 1952. Two witnesses testified to plaintiff’s good reputation in the community. We cannot conclude that the Commission’s evidence as to reputation warranted a revocation of plaintiff’s license.

Accordingly we find that the order of the Illinois Liquor Commission was unsupported by substantial evidence and is, therefore, erroneous, and that the judgment of the Circuit Court was also erroneous. The judgment of the Circuit Court is therefore reversed.

Judgment reversed.

DRUCKER, P. J. and McNAMARA, J., concur.


author: TRAPP, P. J.

text:
    Herbert Schmeisser and Sandra Schmeisser, His Wife, and Lee Strubing and Kay Strubing, His Wife, Plaintiffs-Appellants, v. Village of Niles, a Body Politic and Corporate, Defendant-Appellee.
    Gen. No. 52,578.
    First District.
    July 11, 1969.

      McLennon, McLennon & Nelson, of Park Ridge (Leo F. McLennon, of counsel), for appellants.
    Jack M. Siegel, Ross, Hardies, O’Keefe, Babcock, McDugald & Parsons, and James R. Sneider, of Chicago (Jack M. Siegel, of counsel), for appellee.
   TRAPP, P. J.

Plaintiffs’ action sought to have the zoning ordinance of the defendant Village and the ordinance provisions for “special uses” within the business zoning classifications declared unconstitutional and void, and also sought to have the ordinance declared void as applicable to the land of the plaintiffs. The trial court approved the Master’s report which recommended dismissing the action for want of equity, entered judgment for the defendant and taxed the costs against the plaintiffs. They appeal.

Plaintiffs’ property is classified under the ordinance as B-l, a retail business zone. An automobile service station or “gas” station is not a “permitted use” in this classification, but such use may be authorized as a “special use.” The ordinance also has a B-2 classification designating service business zones. In the latter zone a “gas” station is a permitted use.

The Village Ordinance adopted in 1961 is comprehensive in detail. As the disposition of the case turns upon the validity of the “special use” feature of the ordinance, we note that there is provision for a “special use” in two aspects: First, Section III sets forth certain definitions. A “special use” is defined as a building or use which complies:

“. . . with the applicable regulations governing Special Uses of the zoning district in which such building ... is located.”

Secondly, Section XI of the ordinance provides certain administrative procedures. Paragraph H includes the statement:

“1. Purpose
“The development and execution of the Comprehensive Zoning Ordinance is based upon the division of the village into districts, within any one of which the use of land and buildings and the bulk and location of buildings or structures, as related to the land, are essentially uniform. It is recognized, however, that there are special uses which, because of their unique character, cannot be properly classified into any particular district or districts without consideration in each case of the impact of those uses upon neighboring lands, and upon the public need for the particular use of the particular location. Such special uses fall into two categories:
“a. Uses operated by a public agency or publicly-regulated utilities, or uses traditionally affected with a public interest.
“b. Uses entirely private in character, but of such a nature that the operation may give rise to unique problems with respect to their impact upon neighboring property or public facilities.”

Plaintiffs filed a petition with the Village Trustees which requested that the property classification be changed from B-l, retail business, to B-2, service business. Notice was published of a hearing to be held on September 26, 1963, by the Village Plan Commission and the Zoning Board of Appeals, which included hearing on such petition. The pleadings admit that reclassification of the property was denied.

Plaintiffs argue that the zoning classifications should be held unconstitutional as being arbitrary and capricious and actually designed to control the kind and number of businesses so as to create an area monopoly. So far as we can ascertain, such argument is bottomed on the notion that the “permitted uses” of the two classifications are essentially similar to the “special uses” which are specified. The retail business classification purports to limit service activity to that performed indoors or under cover, but the service business classification permits service activity without such limitation. While the designation of particular businesses as retail or service might produce some differing views, there is nothing inherently arbitrary in such classification. The rule is stated to be that where there is a reasonable ground for difference of opinion as to the basis of classification, the legislative judgment expressed in the ordinance will be sustained. Williams v. Village of Schiller Park, 9 Ill2d 596, 138 NE2d 500.

It is argued that the “special use technique” cannot be applied to uses which are capable of being placed in a regular classification as is a “gas” station. By amendment in 1967, c 24, § 11-13-1.1, Ill Rev Stats, appears to grant specific authority to a city to create the “special use” concept present in this ordinance. Plaintiffs urge that such amendment does not authorize the provision of the 1961 ordinance at issue and in fact shows that there was no legislative authority to make the provision for “special use.” It is further argued that the ordinance at issue does not meet the definition of a “special use” stated by the Supreme Court in Kotrich v. The County of Du Page, 19 Ill2d 181, 166 NE2d 601. In Kotrich it was contended that there was no statutory authority for the “special use” provision of a county zoning ordinance. The Supreme Court, however, accepted as desirable the flexibility provided by the “special use technique,” and upon the facts there at hand defined a “special use” as being within a residual category of uses which might be employed, albeit, usually infrequently and generally upon large areas of land for uses which cannot be categorized in a given use zone without the possibility of excluding a beneficial use but which are potentially incompatible or dangerous within a given zone. The terms of limitations announced by the Court were in the context that such uses were necessarily of an ad hoc quality which must not be permitted to erode the protective procedures in the provisions for amendment of or variation in an ordinance classification.

The Niles ordinance provides for a “special use” not only in the function and with like procedures stated in Kotrich but by its legislative action it also permitted uses defined specifically as “special uses” within the designated classifications which might be authorized through regular procedures. The ordinance provides for an application, notice and hearing designed to protect property owners from piecemeal changes in the zoning scheme. Having in mind the goal of flexibility while maintaining protection, it cannot be said that the language of the Court in Kotrich, delimiting one category of “special use” creates a constitutional barrier to the municipal creation of a distinct category of use which bears the same label.

While the legislative amendment of 1967 authorizes zoning in almost the precise concept of “special use” at issue, such fact cannot rationally be interpreted to mean that the Niles ordinance of 1961 is void for want of specific prior legislative authority. The “special uses” defined in the Niles ordinance for the B-l classification would seem equally to be within the powers conferred by the statute prior to 1961 in the provision:

“. . . (4) to classify, regulate and restrict the location of trades and industries and the location of buildings designed for specified industrial, business, residential, and other uses;....”

C 24, § 73-1, Ill Rev Stats 1955.

Plaintiffs’ argument that c 24, § 11-13-1.1, Ill Rev Stats 1967, must be unconstitutional because it does not meet the limitations stated by the Supreme Court in Kotrich is, we believe, determined by our discussion of the different functions of “special use” as provided in the ordinance.

The complaint as amended alleges that plaintiffs’ “request” for a “special use” as a gasoline station was denied by the Village Plan Commission and Zoning Board of Appeals, and that such denial was unconstitutional because it deprived plaintiffs of the highest and best use of their property without due process of law.

Plaintiffs do not plead that there was, in fact, an application to the Village Board for a “special use,” but rather that at the hearing upon the petition for amendment of the ordinance to reclassify the property, plaintiffs’ counsel orally stated to the Plan Commission to which the petition had been referred, that a “special use” as a gas station would be acceptable to plaintiffs. This is pleaded as a “request” for a “special use” as distinguished from the “application” provided by ordinance. It is such “request” which is alleged to have been denied.

By answer the defendant denies that a “special use” was rejected by the Village Board, and denies that an application or “request” for “special use” was ever acted upon. Plaintiffs have nothing in the record upon the issue raised as to denial of “special use.” The minutes of the meeting of the Plan Commission show that there was discussion of “special use” as a gasoline station, albeit there had been no notice of hearing upon an application for a “special use.” Upon motion, such was continued in order that the plaintiffs might present data as to the adequacy of surface drainage and to obtain plaintiffs’ views as to a restriction upon rental parking as a part of the gasoline station use.

The Master in Chancery’s report, approved by the court, found that there was no reason of substance which appeared to sustain plaintiffs’ prayer that the B-l classification be declared void. He further found that there had been no application for a “special use” in the B-l classification within the provisions of the ordinance and that such was an “omission of substance,” and that there was no evidence that an application for such “special use” if made would be denied. This portion of the complaint being directed to the ordinance as it affected the particular parcels owned by the plaintiffs, the policy of exhaustion of administrative remedies may be appropriately applied by the court. Bank of Lyons v. County of Cook, 13 Ill2d 493, 150 NE2d 97. Since neither the Plan Commission nor the trial court have passed upon an application for “special use,” no issue is presented to us for review.

Plaintiffs argue that the exhaustion of remedies doctrine should be waived as it is useless and futile for the plaintiffs to proceed further in seeking a “special use.” Such result is not necessarily apparent from the only record of the proceedings of the Plan Commission heretofore noted. This record shows nothing within the rule of Van Laten v. Chicago, 28 Ill2d 157, 190 NE2d 717, where, while plaintiffs’ action was pending, the property was reclassified twice without granting relief, contrary to the recommendation of the Master in Chancery in such pending action. See also Herman v. Village of Hillside, 15 Ill2d 396, 155 NE2d 47 and Fiore v. City of Highland Park, 76 Ill App2d 62, 221 NE2d 323.

Upon the conclusions here reached, there was no error in the order taxing costs.

The judgment of the trial court is affirmed.

Affirmed.

SMITH and CRAVEN, JJ., concur.


author: RYAN, J.

text:
    Oak Park Trust & Savings Bank, a Corporation of Illinois as Trustee Under Trust Agreement Dated February 20, 1965, and Known as Trust 4820, Armand Andreoni, Albert J. Andreoni, and Robert Spircoff, Beneficiaries of Said Trust, Plaintiffs-Appellants, v. Village of Elmwood Park, a Municipal Corporation, Defendant-Appellee, Jack Aikens, et al., Intervening Defendants.
    Gen. No. 52,600.
    First District.
    July 11, 1969.

      Ben Copple, Albert A. Gomberg, and Jerome H. Torshen, of Chicago, for appellants.
    Maurice J. Nathanson, Louis Jaffe, and Joseph A. Murphy, of Chicago (Paul Peter Black, of counsel), for appellees.
   RYAN, J.

Plaintiffs’ Complaint prayed for a declaratory judgment declaring that plaintiffs have a right to construct two buildings containing three flats each on the real estate in question and prayed for an Order directing the defendant, Village of Elmwood Park, to issue building permits therefor. After trial before the court, the prayer of the Complaint was denied and the suit was dismissed. This appeal followed.

In 1961 the Village of Elmwood Park enacted the zoning ordinance involved in this case. Article II of the zoning ordinance divides the city into five classes of use districts, designates the boundaries of each district and describes the permitted use of the land therein.

In 1965 the three individual plaintiffs herein purchased the land in question which was a vacant tract of approximately four acres located in Elmwood Park. The property did not lie within the boundaries set forth in Article II of the zoning ordinance for any of the five districts created thereby. However on the map referred to in Article II which will be discussed later, the land in question is shown in plain white. The legend printed on the map indicates that the area shown thereon in plain white is zoned “A” — Residence District. The legend also indicates each of the other four districts as being marked with diagonal marks, slash marks and crosshatches. The three individual plaintiffs created a land trust shortly after acquiring the property, retaining their interests therein as beneficiaries of the trust. The other plaintiff herein is the Trustee under said trust.

In February, 1966, the plaintiffs made application to the defendant Village for an amendment to the zoning ordinance asking that the property in question be rezoned from “A” — Residence to “B” — Specialty Shops District, a zone classification which would permit the building of condominium apartment buildings on the property. Following a hearing, plaintiffs’ application for reclassification was denied.

In October, 1966, plaintiffs applied for building permits to construct two apartment buildings of three apartments each on the property which is a use prohibited under classification “A” — Residence but is permitted under classification “AA” — Residence. Before the applications were acted upon certain contracts were entered into for the construction of the proposed apartment buildings on the property in question. On December 8, 1966, the application for building permits were refused and on December 14, 1966, this suit was instituted. On January 16, 1967, while this suit was pending, the defendant Village amended section 1402.02 of Article II of the zoning ordinance entitled “A” — Residence by inserting therein boundaries which included the subject property.

Plaintiffs insist that their property was zoned “AA”— Residence by the zoning ordinance, was so zoned when the plaintiffs purchased the property, and was so zoned when they applied for the building permits. They arrive at this conclusion by referring to section 1403.02 of Article III of the zoning ordinance which states:

“AA District shall include all that portion of Elm-wood Park not specifically included in Districts as hereinafter in this ordinance described.”

Since the property in question is not included within the boundaries of any of the districts as set forth in the text of the ordinance, the plaintiffs thus conclude that by virtue of section 1403.02 of Article III their property is included in “AA” District classification.

The section relied upon by the plaintiffs does not purport to create “AA” — Residence District nor to define the boundaries thereof. This section is part of Article III of the ordinance which is captioned “District regulations” and each section thereof sets forth the use regulations for the area contained in each of the five districts as to type of buildings permitted, use of premises, height of buildings, rear yard, side yard, intensity of use of the lot, etc. In no section of Article III are the boundaries of the districts set forth.

Article II of the ordinance, however, is captioned “Districts” and the various sections thereof designate each district by name, set forth the permitted use therein and set out the boundaries of each district. It is to Article II of the ordinance and not to Article HI that one must look to ascertain the classification of any property in the Village of Elmwood Park. Under section 1402.03 of Article II the boundaries of “AA” — Residence District are set forth and plaintiffs’ property is not within the boundaries of “AA” — Residence District as therein defined. It is likewise not within the boundaries of “A” — Residence District as the same are set out in section 1402.02 of Article II. However, it is section 1402.01 of Article H which divides the Village into five classes of use districts. This section does not say that the boundaries of each district shall be as set forth in the various sections of Article II of the ordinance but it does state:

“The Village of Elmwood Park is hereby divided into five classes of use districts as shown on the map attached hereto and made a part hereof” (emphasis added).

The map clearly indicates that the property in question is within the boundaries of the district zoned “A” — Residence.

We agree with plaintiffs’ contention that a zoning ordinance is in derogation of common law rights to the use of property and therefore should be strictly construed in favor of the right of a property owner to the unrestricted use of his property. Voisard v. County of Lake, 27 Ill App2d 365, 169 NE2d 805. However, in construing the zoning ordinance we cannot ignore the clear indication of the use classification which is set forth on the map which has been specifically referred to in the text of the ordinance and made a part thereof. In construing a zoning ordinance the court will not isolate one part of the ordinance and ignore the plain meaning and importance of the other parts, but will give force and effect to all of the provisions of the ordinance germane to the subject involved. 101 CJS, 883.

The amendment of the zoning ordinance by the defendant Village on January 16, 1967, subsequent to the institution of this suit was not an attempt to change nor did it change the classification of the plaintiffs’ property. The amendment was made for the purpose of making the provisions of section 1402.02, Article II of the ordinance conform to the boundaries of “A” — Residence District as set forth on the map.

This, the Village clearly had the right to do, even though pending litigation would be affected by the amendment. Bohan v. Village of Riverside, 9 Ill2d 561, 138 NE2d 487, and Kaufman v. City of Highwood, 91 Ill App2d 196, 233 NE2d 230.

The plaintiffs contend that in reliance upon the probable issuance of building permits they entered into construction contracts by which they became obligated for large sums and that they have acquired building plans and borrowed money upon which they must pay interest. They insist that this change in position in reliance upon the probability of the issuance of the building permits is sufficient to entitle them to complete the construction contemplated regardless of the subsequent amendment to the zoning ordinance changing the zoning classification.

The vested right rule relied upon by the plaintiffs was stated by the court in People ex rel. Skokie Townhouse Builders v. Village of Morton Grove, 16 Ill2d 183, 157 NE2d 33, at page 191 as follows:

“Where there has been a substantial change of position, expenditure, or incurrence of obligations, made in good faith by an innocent party, under a building permit or upon the probability of its issuance, such a party has a vested property right and may complete construction and use the premises for the purposes originally authorized, irrespective of subsequent zoning or change in zoning classification.”

This rule was designed to prevent the ordinance or an amendment thereto from having retroactive effect in the situations enumerated by the court in the quoted portion of the above case. This rule does not apply in the present case because: (1) No building permit had been issued to the plaintiffs; (2) There was no probability that one would issue because the defendant Village had consistently insisted that the property was zoned “A” — Residence; and (3) The amendment to the zoning ordinance in January, 1967, did not change the classification of the plaintiffs’ property. Therefore, the plaintiffs acquired no vested right to complete their proposed building.

In addition to the foregoing, we feel that the plaintiffs’ present contention that the property is zoned AA is not consistent with their conduct in February 1966. At that time they made application for an amendment to the zoning ordinance and represented that the property was zoned A.

We are of the opinion that the decision of the trial court denying the plaintiffs’ relief is correct and should be affirmed.

Judgment affirmed.

STOUDER and ALLOY, JJ., concur.