author: JUDGE KILEY

text:
    New Amsterdam Casualty Company, and Norwood Hotel Corporation, for use of New Amsterdam Casualty Company, Appellants, v. Lambert Gerin, a/k/a Lambert Guerin, et al., Appellees.
    Gen. No. 46,731.
    First District, Third Division.
    April 4, 1956.
    Released for publication April 30, 1956.

      Orville R. Setter, of Chicago, for plaintiff s-appellants.
    Jacobs, Miller, Hopkins & Rooney, Heineke and Conklin, Robert L. Brody, George Gore, and McKinley, Price and Appelman, all of Chicago, for appellees; Charles I. Hopkins, Jr., William H. Schrader, Louis Dennen, Robert L. Brody, and Charles D. Snewind, all of Chicago, of counsel.
   JUDGE KILEY

delivered the opinion of the court.

This is a Dram Shop action by the New Amsterdam Casualty Company and the Norwood Hotel Corporation for use of New Amsterdam. Motions to' dismiss were sustained and judgment entered in favor of defendants. Plaintiffs have appealed.

Plaintiffs alleged that defendant tavern operators gave or sold liquor to defendant Gerin, causing his intoxication, and"“while so intoxicated, or in the alternative, in consequence of and as a proximate result” thereof, he, when a guest at the Norwood Hotel, set fire to the building causing injury to other guests, who filed suits against the hotel. New Amsterdam, a public liability carrier for the hotel, “defended and settled” these actions. New Amsterdam seeks damages to the extent of the statutory limit to compensate in part for the cost of settlement of these various suits. By amendment to the complaint New Amsterdam further alleges that it has been subrogated to the rights of the hotel and therefore may recover on “its rights of recovery arising out of the aforesaid payments.”

There are two main questions to be answered. One is whether New Amsterdam is within that class of persons to whom the Dram Shop Act gives relief; the other is whether the Norwood Hotel has a cause of action to which New Amsterdam could become subrogated. We are of the opinion that both questions must be answered in the negative.

Plaintiffs cite no Illinois case in which an insurance carrier or even an injured corporation was allowed to recover in a Dram Shop suit. They rely on a Michigan case, arguing that the statute in that case, which is substantially the same as the Illinois act, was held to apply to an insurance company in a case similar on the facts. McDaniel v. Crapo, 326 Mich. 555, 40 N.W.2d 724. However, the Appellate Court of Illinois, Second District, has held that a liability insurer of the intoxicated person was not allowed to recover for injury incurred by the settlement of pending claims. Economy Auto Ins. Co. v. Brown, 334 Ill. App. 579. Justice Bristow, speaking for the court, said at page 589:

“It is not conceivable to this court, however, just how the ‘mischief of intoxication is suppressed’ and the broad purposes of the statute are promoted by permitting an insurance carrier, which has made payments under its liability policy, and thereby merely fulfilled its undertaking, to shift its business risks to dram shop keepers. Obviously, such carriers were not the class of ‘persons’ for whose benefit the statute was enacted . . . .”

There is a good basis in the principles of legislative construction for the conclusion of the Economy case. The act states that “every husband, wife, child, parent, guardian, employer or other person, who shall be injured in person or property, . . . shall have a right of action . . . .” Ill. Rev. Stat. 1953, Chap 43, Section 135. The act itself and the cases decided on the point indicate that since it is remedial the act should be given a liberal construction. Ill. Rev. Stat. 1953, Chap. 43, Section 94; Economy Auto Ins. Co. v. Brown, 334 Ill. App. 579, 583. But even under a liberal construction we cannot construe the act beyond the intent of the legislature. The well-known principle of construction, ejusdem generis, precludes extension of the term “other person” beyond the classes specifically enumerated. To be included, therefore, within the term “other person” the injured party must be of the same general classification as a “husband, wife, child, guardian or employer.” There is no indication that the legislature intended “other person” to include an insurance carrier.

The Economy case was decided in 1948 and if this decision did not truly interpret the legislative intent, ample time has intervened during which the legislature could have clarified its intention by amendment.

New Amsterdam further alleges that it has been subrogated to the rights of its insured by virtue of the terms of the policy. But it is basic that the subrogee can have no greater rights than the subrogor. We are of the opinion that in this case the hotel has no cause of action, and therefore New Amsterdam cannot be subrogated.

The complaint specifically alleges, and we consider as true when reviewing an order sustaining a motion to dismiss, that the suits by the injured guests were “defended and settled.” From this fact as alleged, an implicit admission of liability, we think two inferences may be drawn; first, that the hotel must have been negligent or otherwise breached its duty as innkeeper, and further that this conduct must have proximately caused the guests’ injury. If the hotel had not breached its duty in this manner it would not have been injured, as to the personal injury actions, despite what G-erin did. This fact shows the intervention of an agency “sufficient of itself to stand as the cause of the injury” and distinguishes Jones v. Keilbach, 295 Ill. App. 598, 602. The hotel brought the injury upon itself and should not be permitted to impose liability upon those who contributed to Gerin’s intoxication, where that intoxication did not, but plaintiff’s own default did, bring about the injury.

We have drawn these inferences of the hotel’s negligence and of this negligence being the proximate cause of the injury, notwithstanding a general allegation in the complaint that at all times both the hotel and New. Amsterdam were in the “exercise of due care.” We are of the opinion that the more specific allegation concerning settlement of the prior suits, and the inferences drawn therefrom, controls this situation. Baker v. Brown, 298 Ill. App. 173,180-181. When construing the pleading, we do so most strongly against the pleader until a verdict on the merits. Sargent Co. v. Baublis, 215 Ill. 428, 430; Wright v. Federal Wrecking Co., 331 Ill. App. 231, 238.

Even though the complaint alleges in the alternative that plaintiffs were injured either directly by the intoxicated person or in consequence of his intoxication, we are of the opinion that the only case actually pleaded is an “in consequence” type case. Since it is an “in consequence” case, the complaint must show that the intoxication was the proximate cause of the injury. Cope v. Gepford, 326 Ill. App. 171, 181-182. Thus, the hotel, or New Amsterdam as its subrogee, can recover only if able to establish that Gerin’s intoxication proximately caused whatever injury it suffered. But we have' already concluded that the proximate cause of the injury to the guests must have been the negligent conduct of the hotel, and since the injury to the hotel followed only as a consequence of the injury to these guests, and since it was therefore even more remote, we are of the opinion that Gerin’s intoxication could not have been the proximate cause of the hotel’s injury. It will be noted that the hotel complains, not of any physical damage to the premises, but only of injury through settlement of the claims of the injured guests.

We conclude that plaintiffs have not stated a cause of action in their complaint and that the motions to dismiss were properly sustained.

Judgment aErmed.

LEWE, P. J. and EEINBERG, J., concur.


source: Caselaw Access Project

author: JUSTICE EOVALDI

license: Public Domain

text:
    People of State of Illinois ex rel. Will County Fair Association, Plaintiff-Appellee, v. Stillman J. Stanard, Director of Department of Agriculture, Morton H. Hollingsworth, Director of Department of Finance, Orville E. Hodge, Auditor of Public Accounts, Warren E. Wright, State Treasurer, all of State of Illinois, and Monee Will County District Fair Association, Defendants-Appellants.
    Gen. No. 10,930.
    Second District.
    April 16, 1956.
    Rehearing denied May 1, 1956.
    Released for publication May 2, 1956.

      Peacock & Peacock, of Morris, and Oscar R. Laraway, of Joliet, for appellant, Monee Will County District Fair Association.
    Thomas L. Clinton, of Peotone, for appellee, Will County Fair Association.
   JUSTICE EOVALDI

delivered the opinion of the court.

This case comes to us for decision by transfer from the Supreme Court. It is an appeal from an order of the circuit court awarding a writ of mandamus directing the payment of monies to plaintiff-appellee. The petition for mandamus was filed in the circuit court of Will County by the People of the State of Illinois, ex rel., Will County Fair Association, against Stillman J. Stanard, Director of the Department of Agriculture of the State of Illinois, and other officers of the State of Illinois, and the appellant, Monee Will County District Fair Association. The matter came on for hearing-before the court on the amended petition, answer of all defendants, and a stipulation of fact.

The amended petition alleged that the petitioner, Will County Fair Association, a corporation, qualified as the only active fair association since the year 1927 in Will County and was the only qualified and acting-fair association in Will County on July 20, 1949, which is the effective date of the amendatory act of 1949 relative to county fairs, namely, Chap. 127, Sec. 164 of the Illinois Revised Statutes; that the petitioner qualified to participate in the Fair and Exposition Fund for county fairs as provided for in Section 6i of the State Finance Act as amended in 1953 (111. Rev. Stat., 1953, Chap. 127, Sec. 142i) and was the only county fair to qualify in the County of Will; and on April 27, 1955, said petitioner filed Declaration of Intention to participate in the Fair and Exposition Fund of the Department of Agriculture and was the only county fair association of the County of Will that had met the necessary qualifications to participate in the above-named fund; that the officers of the plaintiff demanded of the defendant, state officers, to pay it the entire allotment for Will County from the above-named Fair and Exposition Fund; but that the defendant, Stillman J. Stanard, Director of the Department of Agriculture, said he would pay one-half to the Will County Fair Association but refused to pay the other one-half to the plaintiff; that Stillman J. Stanard had adequate funds allotted to said Department of Agriculture from the Fair and Exposition Fund to pay the amount demanded in the amended petition.

The answer of the defendant, Monee Will County District Fair Association denied that the plaintiff was the only qualified fair to participate in the appropriations for Will County and admitted that one-half of the appropriations was payable to the petitioner and alleged that the other one-half of such allotment was payable, and should be paid, to said defendant.

The stipulation of fact by all the parties stipulates that the Will County Fair Association of Peotone, Will County, Illinois, and Monee Will County District Fair Association are corporations duly incorporated under the laws of the State of Illinois and that plaintiff, Will County Fair Association, had qualified as a county fair association in Will County from the year 1927 to the present time, and had held fairs in said county and had received grants from the Agricultural Premium Fund of the State of Illinois from the year 1927 through the year 1954; that the Monee Will County District Fair Association held county fairs in Will County from the years 1945 through 1948 and received grants from the Agricultural Premium Fund of the State of Illinois for said years, and also held county fairs prior to the year 1945 and received grants from said fund at that time, and filed in the year 1949, prior to April 1st of that year, a notice in writing with the Department of Agriculture concerning the essential facts of its organization, location, officers, date of exhibition and approximate amount of premiums to be offered; that the Monee Will County District Fair Association did not hold an annual fair in the year 1949, nor in any year subsequent thereto, but did file prior to April 1, 1955, a notice in writing with the Department of Agriculture for participation in the Agricultural Premium Fund, as required by Section 28 of the State Finance Act [Ill. Rev. Stats. 1953, ch. 127, § 164], and on May 1st, 1955, filed an election to participate in the appropriation from the Fair and Exposition Fund pursuant to Section 6i of the State Finance Act; that the Will County Fair Association was granted a right to operate a county fair in the year 1955 by the County Board of Supervisors- of Will County, but that no authorization was given to the Monee Will County District Fair Association by said county board; that the Will County Fair Association filed an appropriate notice in writing with the Department of Agriculture of the State of Illinois on or before April 1st, 1955, as required by Section 28 of the State Finance Act and had elected for the year 1955 to participate in the appropriations of the Fair and Exposition Fund pursuant to Section 6i of the State Finance Act and filed notice of such election prior to May 1, 1955; that the Will County Fair Association had served demand on the Director of the Department of Agriculture that the entire allotment from the Fair and Exposition Fund allocated to Will County be paid to Will County Fair Association; that Stillman J. Stanard, Director of the Department of Agriculture, had ruled that one-half of the Will County allotment from the Fair and Exposition Fund was payable to the Will County Fair Association and the other one-half of such allotment was distributable to the Monee Will County District Fair Association; that adequate funds had been appropriated for the payment of such amount as should be distributed to county fairs. The stipulation of facts concluded:

“It is the concensus of the parties hereto that the legal questions arising on these facts relate as to whether or not the Monee Will County District Fair Association is qualified to participate in one-half of the funds allotted to Will County, Illinois, from the Fair and Exposition Fund inasmuch as said Monee Will County District Fair Association has not held an .annual fair since the year 1948, although it did hold a fair that year and filed a notice with the Department of Agriculture to participate in the appropriations from the Agricultural Premium Fund for the year 1949, said notice being filed on or before May 1st of that year, and inasmuch as the Monee Will County District Fair Association has not received any payments since the year 1948 from the Agricultural Premium Fund.”

The court by its order found as a matter of law that the Monee Will County District Fair Association was not eligible to participate in the Will County allotment of the Fair and Exposition Fund, and ordered the writ of mandamus to issue against the defendants. The amount of the allotment was $29,946.87. A peremptory writ of mandamus directing the Department of Agriculture through the other state officers to issue voucher to the Will County Fair Association in said sum of $29,946.87 was filed on July 1, 1955, and the receipts for copies of said writ of mandamus were filed in the circuit court on July 21, 1955.

It is contended that the trial court erred: (a) In holding that appellant, Monee Will County District Fair Association, as a matter of law was not eligible to participate in the Will County allotment under the Fair and Exposition Fund, and (b) in holding that the circuit court of Will County had jurisdiction by way of mandamus to review the decision of the Department of Agriculture as to the eligibility of said appellant to participate in the Will County funds.

As to the latter contention of appellant, while it is the general rule that the writ of mandamus will not lie to compel the performance of acts or duties, which necessarily call for the exercise of judgment and discretion on the part of the officer or body at whose hands their performance is required, it is also true that a writ of mandamus will issue to command the performance of an official act in a proper manner when such act is in its nature ministerial, and not judicial. Graham v. People, 111 Ill. 253; People ex rel. Bibb v. Mayor & Common Council of Alton, 179 Ill. 615; Pyle v. Puntney, 254 Ill. App. 224.

In the latter case a petition for writ of mandamus was filed in the circuit court by appellant against the superintendent of schools to compel the latter to approve the attendance of appellant’s son at the high school. A general demurrer filed by appellee was sustained and on appellant’s refusal to plead further his petition was dismissed and judgment rendered against him, from which action the appeal was prosecuted. In that case the court recognized the general rule that courts will not review in a collaterial proceeding the facts upon which a ministerial officer is called upon to decide in his official capacity in the absence of a showing of fraud, collusion or oppression, but it reversed the judgment of the lower court on the ground that the superintendent’s duty to give his approval became a mere ministerial act, the performance of which in a proper case could be enforced by mandamus.

Section 6i of the State Finance Act, which is Section 142i, Chap. 127, Ill. Rev. Stat., 1953, sets forth the requirements for county fairs to receive money from the appropriations to the Fair and Exposition Fund, and provides in part for such participation as follows: “. . . Such appropriations shall be distributed by the Department to such county fairs which are eligible to participate in appropriations made under Section 28 but which elect instead to participate in appropriations made pursuant to this Section.”

Said Section 28 above referred to is also Section 164 of said Chap. 127. That section, insofar as it is pertinent, specifically provides:

“. . . all appropriations which are made to the Department of Agriculture for the benefit of county fairs or other agricultural societies shall be distributed as hereinafter provided to those county fairs or agricultural societies which have held annual fairs or have been organized for that purpose and which at the time of the taking effect of this amendatory Act of 1949 were authorized to participate in such appropriations. But if thereafter in any county there is no such county fair or agricultural society which was so authorized at such time, the county board may select a county fair or agricultural society in that county which has been organized for the purpose of holding annual fairs. The Department of Agriculture may make uniform rules and regulations, not inconsistent with the provisions herein, governing all exhibits qualified under this Act to participate in state aid to county fairs, agricultural extension clubs and home economics clubs, ‘4-H’ clubs or other agricultural societies. No such county fair or agricultural society shall participate in any year in such appropriation which shall not notify the Department of Agriculture in writing on or before April 1st of that year concerning the essential facts of its organization, its location, officers, date of exhibition and approximate amount of premiums to be offered except as hereinafter provided for agricultural extension clubs (Italics ours). . . . All such appropriations shall he divided between such county fairs or agricultural societies as shall have given satisfactory evidence to the Department of Agriculture of having held an annual fair and made an annual report to the Department of Agriculture as hereinafter provided. (Italics ours) . . .

“On or before the 15th day of October of each year the president and secretary of each county fair or agricultural society claiming the benefit of any such appropriation shall file with the Department of Agriculture a sworn statement of the actual amount of cash premiums paid at the fair for the current season, which statement must correspond with the published offer of premiums .... Such statement shall be accompanied by an itemised list of all premiums paid upon the basis of the premiums herein provided and a copy of the published premium list of such fair and a full statement of receipts and expenditures for the current year duly verified by the secretary of such fair or agricultural society. (Italics ours)”

The history of the Pair Association Acts all point to three fundamental requirements for sharing in the benefits provided by the respective statutes: (1) the holding of the fair annually, (2) the paying of premiums, and (3) the making of the annual report on or before a certain date, in this case by October 15. In the Act of 1883 the emphasis was on holding an annual fair, paying premiums and making the annual report. Again in 1907 the law was amended, but the emphasis remained the same. In every instance that the law has been changed and additions have been made to Section 28 of the Finance Act, that portion requiring the holding of an annual fair and the filing of an annual report with the state government or some department thereof has always been retained in the statutes. There have been many amendments to the Fair Association Acts, and other requirements added, including new methods of creating county fairs, in keeping with changing conditions, but always these three fundamental requirements have been included in the statute.

While it is true that the Department of Agriculture is vested with discretionary powers which have been conferred on that body by the statute, here we are concerned with the other portions of the statute dealing with the ministerial acts of that body. The legislature, in setting up the eligibility requirements entitling county fairs or agricultural societies to share in the benefits or premiums provided by the statute, had certain things in mind, one of the principal objectives being the stimulating of interest in annual fairs.

In Black’s Law Dictionary, Third Edition, “Annual” is defined as “occurring or recurring once in each year; continuing for the period of a year; accruing within the space of a year; relating to or covering the events or affairs of a year.” The reason fqr the first notification in writing to the Department of Agriculture by the fair association of (1) date of exhibition, and (2) the approximate amount of premiums to be offered, is to inform that body that the fair association plans on having an annual fair and plans to pay cash premiums. The reason for the second notification in writing, due on or before the 15th of October of each year, requiring a sworn statement from the fair association of the actual amount of cash premiums paid for the current season is to satisfy the Department of Agriculture that the annual fair has been held and that the cash premiums have actually been paid. By these two requirements in writing, the Department of Agriculture is enabled to make a proper distribution of monies to the many fair associations in the State of Illinois holding annual fairs. The language of the statute is plain. It needs little construction. The Director has but one course to pursue. There is little, if any, discretion left in the hands of the Director of the Department of Agriculture as to the proper distribution of these monies. The method of qualifying for same is specifically set forth in the statute. When an organization has qualified as to all requirements at the different times provided by statute, it is entitled to the benefits. Unless it does so qualify, it is not entitled to the same, and the Director cannot legally pay said monies to said non-qualifying organization. Should the Director order an illegal payment, his action would be an abuse of discretion. It could have no sanction in the law. For failure to obey the law, he should be compelled to do so. This the lower court required in its order and judgment. Any other result would lead to chaos in the carrying out of the provisions of the statute, and would seriously affect the aims and purposes of the State of Illinois in its attempts to foster and encourage the organization and continuation of fair or agricultural associations for the purposes of having these annual fairs. The order and judgment of the circuit court of Will County is correct.

Judgment affirmed.

DOVE, P. J. and CROW, J., concur.


author: PRESIDING JUSTICE FRIEND.

text:
    Charles Rembert, Appellant, v. James Irving, d/b/a World Wide Auto Sales, and Angelo Spiller, Appellees.
    Gen. No. 46,680. (Abstract of Decision.)
    First District, First Division.
    April 2, 1956.
    Released for publication April 30, 1956.
    Rogers, Rogers, Strayhorn & Harth, for appellant;
    Raymond E. Harth, and John W. Rogers, of counsel;
    no brief filed for appellee.
   Opinion by

PRESIDING JUSTICE FRIEND.

Not to be published in full.


text:
    Harry Brainin, Appellant, v. Great Lakes Supply Corporation, Defendant. Luke R. Neip, Appellee.
    Gen. No. 46,739. (Abstract of Decision.)
    First District, First Division.
    April 2, 1956.
    Released for publication April 30, 1956.

      Samuel Morgan, for appellant;
    Halfpenny & Hahn, for appellee.
   Opinion by

PRESIDING JUSTICE FRIEND.

Not to be published in full.


text:
    John Kaminski, Sr., and Victoria Kaminski, Plaintiffs, v. Joseph Rymek, Walter Ohler, Violet Rymek, and Virginia Ohler, as Co-Trustees under Trust Agreement Dated March 30,1954, as Trust #1-A, Defendants. Victoria Kaminski, Appellant, v. Walter Ohler, Violet Rymek, and Virginia Ohler, as Co-Trustees under Trust Agreement Dated March 30, 1954, as Trust #1—A, Appellees.
    Gen. No. 46,835. (Abstract of Decision.)
    First District, First Division.
    April 2, 1956.
    Released for publication April 30,1956.
    Stanley Werdell, and Joseph J. Gasior, for appellant;
    Johnson, Sandberg and McGrath, for all appellees, and Wachowski and Wachowski, for Joseph Rymek, certain appellee.
   Opinion by

PRESIDING JUSTICE FRIEND.

Not to be published in full.


text:
    People of State of Illinois, Defendants in Error, v. Ralph Neal, Plaintiff in Error.
    Gen. No. 46,843. (Abstract of Decision.)
    First District, First Division.
    April 2, 1956.
    Released for publication April 30, 1956.
    William J. Callahan, and Merritt R. Kotin, for plaintiff in error; John Gutkneeht, State’s Attorney of Cook county, for defendant in error;
    Gordon Nash, Charles D. Snewind, William S. White, and Francis X. Riley, Assistant State’s Attorneys, of counsel.
   Opinion by

PRESIDING JUSTICE FRIEND.

Not to be published in full.


author: JUDGE NIE-MEYER.

text:
    People of State of Illinois, Defendant in Error, v. Sam Garofolo, and Christ Chiarmonte, Plaintiffs in Error.
    Gen. No. 46,706. (Abstract of Decision.)
    First District, First Division.
    April 2, 1956.
    Released for publication April 30, 1956.

      A. Bradley Eben, and Frank E. McDonald, for plaintiffs in error;
    Latham Castle, Attorney General of State of Illinois, for defendant in error;
    William C. Wines, Raymond S. Sarnow, and A. Zola Groves, Assistant Attorneys General, of counsel.
   Opinion by

JUDGE NIE-MEYER.

Not to be published in full.


author: JUDGE NIEMEYER.

text:
    Joseph Baglieri, Appellee, v. R. R. Hessling, and Just Rent A Car Company, Defendants. Appeal of Just Rent A Car Company, Appellant.
    Gen. No. 46,754. (Abstract of Decision.)
    First District, First Division.
    April 2, 1956.
    Released for publication April 30, 1956.

      Edward D. Rosenberg, Irving J. Sachs, and Neal S. Breskin, for appellant;
    Edward D. Rosenberg, of counsel; Cherkas, Rosenberg & Stone, for appellee;
    Bertram A. Stone, of counsel.
   Opinion by

JUDGE NIEMEYER.

Not to be published in full.


text:
    First National Bank of Chicago, as Trustee under Will of Kate E. Herbert, Appellee, v. Betty Gerretsen Herbert, and August K. Herbert, Defendants. Appeal of Betty Gerretsen Herbert, Appellant.
    Gen. No. 46,768. (Abstract of Decision.)
    First District, First Division.
    April 2, 1956.
    Rehearing denied April 16, 1956.
    Released for publication April 30, 1956.
    Hennessy, Lennon & King, for defendant-appellant; George W. Lennon, and John L. Denniston, of counsel;
    Fiedler and Amberg, for appellee, August K. Herbert;
    Thomas Amberg, and Daniel R. LaBar, of counsel.
   Opinion by

JUDGE NIEMEYER.

Not to be published in full.


text:
    Herbert Rothenberg, and Bernice Rothenberg, d/b/a Wabash Frozen Foods, Appellants, v. Monarch Refrigeration Company of Chicago, and Thomas J. Kane, and Mrs. Thomas J. Kane, a/k/a Marion O. Kane Properties, Appellees.
    Gen. No. 46,778. (Abstract of Decision.)
    First District, First Division.
    April 2, 1956.
    Rehearing denied April 23, 1956. '
    Released for publication April 30, 1956.
    Ruttenberg and Ruttenberg, for appellants;
    Marvin H. Ruttenberg, and Charles D. Snewind, of counsel;
    Abner Golden-son, for appellees;
    James F. Burns, and Eugene S. Goldenson, of counsel.
   Opinion by

JUDGE NIEMEYER.

Not to be published in full.


text:
    County of Cook, Appellee, v. James Carbone, Appellant.
    Gen. No. 46,803. (Abstract of Decision.)
    First District, First Division.
    April 2, 1956.
    Released for publication April 30, 1956.
    John H. Galgano, and Patrick A. Barton, for defendant-appellant;
    John Gutkneeht, State’s Attorney of Cook county, for plaintiff-appellee;
    Gordon B. Nash, Martin R. Handelman, Charles D. Snewind, Francis X. Riley, and William S. White, Assistant State’s Attorneys, of counsel.
   Opinion by

JUDGE NIEMEYER.

Not to be published

in full.


author: JUDGE BURKE.

text:
    Leo J. Kiley, Appellant, v. Samuel Rose, and Thomas Rose, d/b/a Rose Cartage Service, Appellees.
    Gen. No. 46,696. (Abstract of Decision;)
    First District, First Division.
    April 2, 1956.
    Rehearing denied April 30, 1956.
    Released for publication April 30, 1956.

      John J. Kennelly, for appellant; John J. Kennelly, and Edward Wolfe, of counsel;
    Crowe, Yates, Abrahamson & Fisk, for appellees;
    Burt A. Crowe, and' Tom L. Yates, of counsel.
   Opinion by

JUDGE BURKE.

Not to he published in full.


text:
    Julius Ryniecki, Appellee, v. Chester Sipiora, and Shirley Sipiora, Appellants.
    Gen. No. 46,730. (Abstract of Decision.)
    First District, First Division.
    April 2, 1956.
    Released for publication April 30, 1956.
    Eugene R. Ward, for appellants;
    Howard & Howard, for appellee;
    Edward C. Hofert, of counsel.
   Opinion by

JUDGE BURKE.

Not to be published in full.


author: PRESIDING JUSTICE McCORMICK.

text:
    Walter N. Glass, Appellant, v. Georgette Glass, and Central National Bank of Chicago, Appellees.
    Gen. No. 46,727. (Abstract of Decision.)
    First District, Second Division.
    April 3, 1956.
    Released for publication April 24, 1956.
    T. Renfroe Eaton, for appellant;
    Euclid Louis Taylor, and Richard K. Cooper, for appellee.
   Opinion by

PRESIDING JUSTICE McCORMICK.

Not to be published in full.


author: PRESIDING JUSTICE MoCORMICK.

text:
    Mutual National Bank of Chicago, as Trustee under its Trust No. 308, Appellee, v. Harvey Winkelman et al., Defendants Below, Appellees. Appeal of Carl J. Carlson, Defendant Below, Appellant.
    Gen. No. 46,755. (Abstract of Decision.)
    First District, Second Division.
    April 3, 1956.
    Released for publication April 24, 1956.
    Owen N. Price, and Edward J. Metzdorf, for Carl J. Carlson, defendant-appellant;
    no appearance and no brief filed for appellee.
   Opinion by

PRESIDING JUSTICE MoCORMICK.

Not to be published in full.


author: JUDGE ROBSON.

text:
    People of State of Illinois, Defendant in Error, v. Calvin Belcher, Plaintiff in Error.
    Gen. No. 46,830. (Abstract of Decision.)
    First District, Second Division.
    April 3, 1956.
    Rehearing denied April 24, 1956.
    Westbrooks, Holman, Johnson & Farmer, for plaintiff in error;
    Claude W. B. Holman, of counsel;
    John Gutkneeht, State’s Attorney of Cook county, for defendant in error;
    Irwin D. Bloch, John T. Gallagher, Rudolph L. Janega, and William L. Carlin, Assistant State’s Attorneys, of counsel.
   Opinion by

JUDGE ROBSON.

Not to be published in full.

Released for publication April 24, 1956.
    Released for publication April 24, 1956.


author: PRESIDING JUSTICE DOVE.

text:
    People of State of Illinois, Plaintiff and Defendant-in-Error, v. Ernest Louis Lindstrom, Defendant and Plaintiff-in-Error.
    Gen. No. 10,900. (Abstract of Decision.)
    Second District.
    April 3, 1956.
    Rehearing denied April 24, 1956.
    Released for publication April 24, 1956.

      Singer & Singer, for defendant-appellant;
    Paul F. Stern, of counsel; Robert C. Nelson, State’s Attorney, Lake county, for defendant-in-error;
    Kenneth R. Shorts, Assistant State’s Attorney, of counsel.
   Opinion by

PRESIDING JUSTICE DOVE.

Not to be published in full.


author: JUDGE KILEY.

text:
    Richard Miller, d/b/a Johnson’s Fair, Appellant, v. Interstate Bedding Company, Inc., Appellee.
    Gen. No. 46,763. (Abstract of Decision.)
    First District, Third Division.
    April 4, 1956.
    Released for publication April 30, 1956.
    Sonnenschein, Berkson, Lautmann, Levinson & Morse, for plaintiff-appellant;
    Jack I. Levy, and James M. Goff, of counsel; Kelner and Kelner, and Lester E. Williams, for appellee;
    Charles D. Snewind, and Raymond Kelner, of counsel.
   Opinion by

JUDGE KILEY.

Not to be published in full.


text:
    John R. Jeffers, Plaintiff-Appellee, v. Emma E. Jeffers, Defendant-Appellant.
    Gen No. 10,917. (Abstract of Decision.)
    Second District.
    April 5, 1956.
    Rehearing denied May 1, 1956.
    Released for publication May 2, 1956.
    Nash and Perolie, for defendant-appellant;
    Strom & Strom, and Knight, Ingrassia & Bourland, for plaintiff-appellee;
    B. Jay Knight, of counsel.
   Opinion by

PRESIDING JUSTICE DOVE.

Not to be published in full.


author: JUSTICE CROW.

text:
    Wally La Placa, Plaintiff-Appellant, v. Charles La Placa, Defendant-Appellee. Charles La Placa, Counter-Plaintiff-Appellee, v. Wally La Placa, Counter-Defendant-Appellant.
    Gen. No. 10,918. (Abstract of Decision.)
    Second District.
    April 5, 1956.
    Released for publication April 23, 1956.
    Carbary & Carbary, for appellant;
    George D. Carbary, Warren. E. Carbary, and James L. Wilder, of counsel;
    Brittain & Morgan, for appellee.
   Opinion by

JUSTICE CROW.

Not to be published in full.


text:
    Albia Maresh, Plaintiff-Appellant, v. Henry Praetz, Defendant-Appellee.
    Gen. No. 10,893. (Abstract of Decision.)
    Second District.
    April 13, 1956.
    Rehearing denied May 1, 1956.
    Released for publication May 1, 1956.
    Louis M. Leider, for plaintiff-appellant;
    Melvin B. Lewis, of counsel;
    Fearer & Nye, for defendant-appellee.
   Opinion by

PRESIDING JUSTICE DOVE.

Not to be published in full.


author: Opinion by PRESIDING JUSTICE DOVE.

text:
    Earl Wainwright, Plaintiff-Appellee, v. Elgin Windmill Company, Defendant-Appellant.
    Gen. No. 10,857. (Abstract of Decision.)
    Second District.
    April 30, 1956.
    Rehearing denied April 30, 1956.
    Released for publication May 2, 1956.

      Paulson & Jordan, and Andrew Kopp, for appellant;
    Huber, Reidy & Katz, for appellee;
    Isador I. Katz, of counsel.
   Opinion by PRESIDING JUSTICE DOVE.

Not to be published in full.


author: MR. JUSTICE SCHWARTZ

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Harold Davis, Defendant-Appellant.
    Gen. No. 51,238.
    First District, Third Division.
    October 26, 1967.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (C. Paul Bradley and James J. Doherty, Assistant Public Defenders, of counsel), for appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Robert Novelle, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE SCHWARTZ

delivered the opinion of the court.

In a trial without a jury the defendant was found guilty of the offense of theft from the person pursuant to an indictment which charged that he knowingly obtained unauthorized control of $59 in currency and a wallet from the person of Charles Weisseg, Junior, with intent to deprive him permanently of the use and benefit of said property, pursuant to chapter 38, § 16-1 (a), Ill Rev Stats (1965). He was sentenced to serve one to five years in the state penitentiary. The only point made for reversal is that the evidence did not prove a taking with intent to deprive the owner of the use and benefit of the property described. A summary of the evidence follows.

Weisseg testified that at about 3:00 a. m. on August 1, 1965, he boarded a southbound subway train at the Chicago Avenue station; that he fell asleep, rode to the end of the line at Loomis Street, then back north, and did not wake up until he was past the Chicago Avenue station. When he awoke he discovered that his wallet was missing. He testified that the wallet contained various papers and $59 in currency. He was sure of the amount because he had counted the money in his wallet after he paid his fare.

Gregory Zito, a Chicago Transit Authority policeman, testified that at about 5:00 a. m. on August 1, 1965, he and his partner Gary Hill boarded a northbound subway train at Roosevelt Road; that he took a seat across the aisle from Weisseg; that Hill sat in front of the train facing Weisseg and that the defendant came into the car and sat next to Weisseg. Zito observed Davis “pat down” or frisk Weisseg, remove his wallet from his pocket, remove personal papers and currency from the wallet and throw the wallet under the seat in front of him. At that time the train was in the process of stopping at the Chicago Avenue station. As the defendant got up and went out of the car, Zito signaled his partner and they chased him to the stairwell where they apprehended him. They had observed the defendant discard some papers in a trash barrel while they were chasing him and they returned to the barrel and recovered papers later identified by Weisseg as those stolen from his wallet. Zito testified that they took the defendant to a washroom where they searched him and that “he had currency, he had this $59.” He stated that the defendant offered the money to them, apparently as a bribe, but that they returned it to him since they did not know at that time how much had been stolen. Hill testified to the same facts.

Defendant denied that he had taken the wallet or that he sat next to Weisseg, who was white. He testified that he was sitting next to a Negro on the subway, that he had $65 in his pocket when arrested and that this was the remainder of a pay check he had cashed. He contends that Officer Zito testified that the wallet was left under the seat in front of Weisseg and that this does not show an intent to permanently deprive the owner of the property as required by the criminal code. Ill Rev Stats (1965), c 38, § 16-1 (a) (1). As to the $59 in currency, defendant contends that the evidence does not prove beyond a reasonable doubt that he took the $59 from Weisseg. He contends that even though Weisseg testified he had just counted his money, it is unlikely he actually knew the exact amount taken and that it was impossible to prove that the money found in the defendant’s pocket was the same money taken from Weisseg.

The testimony provides overwhelming proof of the defendant’s intent to permanently deprive Weisseg of his property. The fact that defendant discarded the wallet is of no significance nor is the fact that $65 was found in his pocket, instead of $59. It is true that there is no way of proving that the money found in defendant’s pocket consisted of precisely the same bills taken from Weisseg. Zito observed the defendant removing currency from the victim’s wallet. He followed the defendant off the subway train and upon searching him, found funds which answered the description of those stolen. The detectives testified that the defendant offered the money to them as an attempted bribe. Evidence of such conduct has been held to be admissible as an admission of guilt. People v. Boulahanis, 50 Ill App2d 440, 200 NE2d 372, 374. Combined with the other evidence presented in this case, it establishes the defendant’s guilt as charged beyond any reasonable doubt.

Judgment affirmed.

SULLIVAN, P. J. and DEMPSEY, J., concur.


author: MR. JUSTICE ADESKO

text:
    City of Evanston, a Municipal Corporation, Plaintiff-Appellant, v. Thomas R. Waggoner, Defendant-Appellee.
    Gen. No. M-51,126.
    First District, First Division.
    November 20, 1967.
    Jack M. Siegel, Corporation Counsel, of Evanston, for appellant.
    Thomas E. Crowley, of Glenview, for appellee.
   MR. JUSTICE ADESKO

delivered the opinion of the court.

This is an appeal by the City of Evanston from a judgment of not guilty in a quasi-criminal action brought by the plaintiff against the defendant for violating section 27-78 of “The Code of the City of Evanston, Ill., 1957,” as amended. Said section makes it unlawful for any person who is under the influence of intoxicating liquor to drive any vehicle within the City. The defendant pleaded not guilty and waived trial by jury.

On Saturday, October 16, 1955, the defendant, aged 20, and Joan Tumpson, aged 19, attended a party on Sheridan Road near Howard Street in Chicago. The party started shortly after 9 o’clock. The defendant drank 2 or 3 steins of beer at the party, Miss Tumpson taking a sip out of each stein. The stein, owned by the defendant, was a pewter mug, between 9 inches and 12 inches tall. It was filled to within 2 or 3 inches of the top. About 12:45 a. m., on October 17th, the defendant and Miss Tumpson and another couple left the party and drove to Miss Tumpson’s dormitory at 1820 Chicago Avenue, Evanston. The other couple was left at the dormitory. The defendant and Miss Tumpson then drove North to Gilson Park in Wilmette. They walked in the park. Miss Tumpson complained that her foot ached, so took her shoes off and carried them. The defendant also took his shoes off, leaving them behind while they continued to walk. Miss Tumpson was due at the dormitory not later than 2:00 a. m. The defendant, unable to find his shoes, drove Miss Tumpson to her dormitory and later returned to the park to find his shoes. The park is about a five-minute ride from the dormitory.

On his way back to the park, the defendant was driving North on Sheridan Road. He observed the automobile of Ralph Earlandson halted in the intersection of Lincoln Street and Sheridan Road, preparing to make a left turn. Defendant slammed on his brakes, but was unable to stop in time to avoid striking the rear end of Earlandson’s car. As a result of the impact, the defendant hit his head against the windshield and broke the glass.

Two Evanston police officers arrived at the scene within five minutes. Officer Branstrom smelled an odor of an alcoholic beverage on the defendant’s breath and noticed that the defendant was without shoes. The defendant was slow in talking and admitted that he had had some beer earlier that evening. He was taken to the police station where the officer told the defendant: “We are going to give you a Breathalyzer test.” The defendant replied, “Okay.” The result of the test showed the defendant had 0.19 per cent of alcohol in his blood. Officer Branstrom had been a police officer for nine years and arrested approximately 200 persons who were under the influence of alcoholic beverages. He testified that in his opinion the defendant was under the influence of alcohol and that his ability to operate a motor vehicle was impaired. However, Branstrom testified that the defendant’s balance, walk and ability to turn were fair.

Another Evanston police officer, Sergeant Kelly, detected the odor of alcohol on the defendant’s breath and testified that, based on his observation of the defendant for a little more than half an hour, his conversations and his experience as a police officer, he was of the opinion that defendant was under the influence of an alcoholic beverage.

The defendant filed a motion to dismiss this appeal “on the ground that the Municipality has no right to appeal from a judgment of acquittal of a charge of violation of a penal Ordinance, and that a reversal of the finding of ‘Not Guilty’ with remandment for a new trial would place the Defendant in double jeopardy.” This issue was disposed of adversely to defendant’s position in our recent opinion in City of Evanston v. Jaman, 88 Ill App2d 441, 232 NE2d 28 (1967). See also Park Forest v. Bragg, 38 Ill2d 225, 230 NE2d 868 (1967).

The City of Evanston contends that the defendant was proven guilty by a clear preponderance of the evidence and the trial court’s finding of “not guilty” was contrary to the manifest weight of the evidence. The City maintains that the evidence more than satisfied its burden. Section 47 of the Motor Vehicle Act (111 Rev Stats 1965, c 95%, § 144) provides that 0.15% or more of alcohol in a person’s blood shall create a presumption of being under the influence of intoxicating liquor. Defendant here had 0.19% alcohol in his blood. However, subparagraph 4 of section 47 provides:

“The foregoing provisions of this paragraph (b) shall not be construed as limiting the introduction of any other competent evidence bearing upon the question whether or not the defendant was under the influence of intoxicating liquor.”

The defendant admitted that he drank two or three steins of beer between 9:00 p. m. and 12:45 a. m. After he drove his date to Gilson Park, they walked around the park for approximately an hour. She testified, “I wouldn’t have stayed with him, if I thought there was any danger in his driving” and “There was nothing unusual about his driving.” The defendant on cross-examination denied that he was under the influence of an alcoholic beverage at the time of the accident. Ralph Earlandson testified that after the impact the defendant got out of his car on two occasions, walked toward Earlandson’s car and examined the damages which cost $35 to repair; that the defendant did not lean against the car or brace himself in any way and that there was nothing unusual about his speech. Sergeant Kelly testified that defendant was cooperative and his walk, his ability to turn and the result of the coin-picking test were fair. The police report showed that the odor of an alcoholic beverage was moderate.

At the conclusion of the presentation of evidence, the trial judge carefully reviewed the facts as they appeared from the testimony. He was fully cognizant of the results of the breathalyzer test and the presumption raised by the statute. However, the testimony of the defendant of the amount he had to drink, the comments of his date that he was driving properly and safely, the observations of the driver of the car that was hit, and certain of the police officer’s observations that were inconsistent with being under the influence of an intoxicant were all taken into account by the trial judge in reaching his conclusion that the defendant was not operating his vehicle in violation of the ordinance.

As we said in City of Evanston v. Jaman, 88 Ill App2d 441, 232 NE2d 28 (1967), a reviewing court should be hesitant to reverse a finding of not guilty made by the trial court. The Illinois Supreme Court in Schulenburg v. Signatrol, Inc., 37 Ill2d 352, 226 NE2d 624 (1967), said:

“Although a trial court’s holding is always subject to review, this court will not disturb a trial court’s finding and substitute its own opinion unless the holding of the trial court is manifestly against the weight of the evidence. (Brown v. Zimmerman, 18 Ill2d 94, 102; Illinois Nat. Bank & Trust Co. of Rockford v. County of Winnebago, 19 Ill2d 487, 495; Mortel v. Beckman, 16 Ill2d 209.) Underlying this rule is the recognition that, especially where the testimony is contradictory, the trial judge as the trier of fact is in a position superior to a court of review to observe the conduct of the witnesses while testifying, to determine their credibility, and to weigh the evidence and determine the preponderance thereof. We may not overturn a judgment merely because we might disagree with it or might, had we been the trier of facts, have come to a different conclusion.” (P 356.)

The decision of the Circuit Court of Cook County, Second Municipal District, is affirmed.

Judgment affirmed.

MURPHY, P. J. and BURMAN, J., concur.


text:
    Maurice Foerkert, et al., and The Old Town Triangle Association, Plaintiffs-Appellants, v. Board of Zoning Appeals of the City of Chicago, B. Emmet Hartnett, et al., Exchange National Bank as Trustee Under Trust #14631, and Raymond F. Klein, DefendantsAppellees.
    Gen. No. 51,662. (Abstract of Decision.)
    First District, First Division.
    November 20, 1967.
    Rehearing denied December 7, 1967.
    John P. Murray, of Chicago, for appellants; Rudnick & Wolfe, of Chicago (Perry J. Snyderman, of counsel), for appellees.
   Opinion by JUSTICE BURMAN. Not to be published in full.


author: MR. PRESIDING JUSTICE MURPHY

text:
    Velma Stampley, Plaintiff-Appellee, v. Earl Collins, Defendant-Appellant.
    Gen. No. 51,749.
    First District, First Division.
    November 20, 1967.
    Delars J. Bracy, of Chicago, for appellant.
    David S. Bern, of Chicago, for appellee.
   MR. PRESIDING JUSTICE MURPHY

delivered the opinion of the court.

Defendant, Earl Collins, appeals from the denial of his petition to vacate a judgment entered against him. The petition, filed five months after judgment, was based on section 72 of the Civil Practice Act.

Plaintiff sued defendant for damages allegedly sustained as a result of defendant “forcibly and wantonly” ejecting plaintiff from a store which defendant had leased to plaintiff for a tavern. The complaint alleged that “after two weeks of occupancy, the defendant forcibly and wantonly ejected the plaintiff from said store having first removed the liquor license from the wall and then locked the plaintiff out. By reason thereof the plaintiff has lost $700.00 paid to the defendant, $400.00 in liquor left on the premises, $100.00 in equipment, and conservatively speaking $800.00 in lost profits.” The defendant counterclaimed for $600.00 “for rent for two months.”

After a non jury trial, in which the court heard evidence and counsel for both sides, the court, on February 7, 1966, entered judgment in favor of the plaintiff for $500 and denied the counterclaim.

On July 15, 1966, the defendant filed the instant petition to vacate the judgment. The petition was grounded on newly discovered evidence and alleged that at the trial on the merits, plaintiff and her witnesses testified falsely, with intent to defraud the defendant and “thereby defrauded this Court.” In support of his petition, the defendant offered the testimony and affidavit of Marcus Lee Fuller, son of the plaintiff, to the effect that he and his aunt, Ophelia Thompson, were the real owners and operators of the tavern; that he had a severe altercation with Ophelia and that she had threatened him with a razor; that she had subsequently removed the liquor from the premises; and that he, in turn, had removed the liquor license from the wall and had the lock changed.

Plaintiff filed no answer to defendant’s petition. At the hearing on the petition, the court permitted Marcus Lee Fuller, the affiant, to testify in support of the petition. After considering at length the petition and the supporting affidavit, the testimony of Fuller, and the arguments of counsel, the court denied the petition and remarked: “The Court has no jurisdiction to entertain this petition. The Court heard this matter, heard the witnesses, evaluated the testimony, determined the credibility of the witnesses, we are not going to retry this case under the guise of this petition.”

As defendant contends, since there was no answer to his petition to vacate and no evidence was offered by the plaintiff at the hearing of the petition, defendant’s allegations stand as admitted. Ill Rev Stats 1965, c 110, §40.

Defendant further contends that “in the case at bar, justice and fairness require the court to invoke its equitable powers.” Defendant cites in support Ellman v. DeRuiter, 412 Ill 285, 106 NE2d 350 (1952); and Elfman v. Evanston Bus Co., 27 Ill2d 609, 190 NE2d 348 (1963), where the court said (p 613):

“Since our decision in Ellman v. DeRuiter, 412 Ill 285, subsequently adopted by the legislature . . . , it has become certain that a petition filed under section 72, such as we have here, invokes the equitable powers of the court, as justice and fairness require.”

Both of these cases involved default judgments, and the opinions show that the defendant in each case, after learning of the judgment, promptly petitioned for relief. We think these cases are distinguished from the instant case, where the defendant petitioner participated in the trial and waited more than five months before seeking relief.

We believe the guidelines to be used here are set forth in Brockmeyer v. Duncan, 18 Ill2d 502, 165 NE2d 294 (1960) , where the Supreme Court reviewed the use of section 72 and said (p 505):

“Assuming that the present petition alleges facts which would otherwise justify the granting of relief, the absence of any excuse for not asserting them in apt time must preclude it. The rule is well established that a person may not avail himself of the present remedy unless he shows that through no fault or negligence of his own, the error of fact or the existence of a valid defense was not made to appear to the trial court. . . . Such a motion or petition is not intended to relieve a party from the consequences of his own mistake or negligence.”

See, also, People v. Lewis, 22 Ill2d 68, 70, 174 NE2d 197 (1961) .

Using the foregoing guidelines, and assuming that defendant’s petition alleged facts which would otherwise justify the granting of relief, the petition, supporting affidavit and record are barren of any statement of facts to show that defendant exercised due diligence in the discovery and presentation of the testimony of Marcus Lee Fuller or a reasonable excuse for the failure to offer this testimony at the trial on February 7,1966.

We conclude the trial court properly denied defendant’s petition to vacate the judgment, and the order is affirmed.

Affirmed.

BURMAN and ADESKO, JJ., concur.


author: MR. JUSTICE BURMAN

text:
    South Center Plumbing & Heating Supply Company, Plaintiff-Appellee, v. Mary Ella Charles, Defendant-Appellant.
    Gen. No. 51,755.
    First District, First Division.
    November 20, 1967.
    Rehearing denied February 6, 1968.

      David J. Maddox, of Chicago, for appellant.
    Milton D. Frifeld, Charles N. Brusso, and Harold Stotland, of Chicago, for appellee.
   MR. JUSTICE BURMAN

delivered the opinion of the court.

Plaintiff, South Center Plumbing and Heating Supply Company, Inc., entered into a written contract with the defendant, Mary Ella Charles, whereby plaintiff was to furnish labor and materials in the removal and relocation of the plumbing in the first apartment of a three-flat building at 8052 South Eberhart Avenue. During the progress of the work, the defendant became dissatisfied with the work and employed others to complete the job. In one count of the complaint, plaintiff sued the defendant for the contract price, and in the other count sued for labor and materials furnished. After a trial by jury a verdict was returned in favor of plaintiff in the sum of $4,000, which sum included a down payment of $500. The trial judge properly reduced the amount of the verdict to $3,500, excluding the down payment which was already in the possession of plaintiff and entered judgment thereon. Defendant appeals from the judgment entered.

The defendant contends, on appeal, that the failure of the plaintiff to comply with the requirements of Article 82, paragraph 3 of the Municipal Code renders the contract null and void. It is her contention that the Plumbing Ordinance of Chicago became part of the contract to remodel, and that by its failure to obtain a permit and furnish plans in compliance with the statutory mandate the plaintiff breached the contract. She further contends that this breach was of such a substantial nature so as to defeat the claim of the plaintiff to recover either on the contract or on quantum meruit.

The provisions of Article 82, paragraph 3 of the Municipal Code relied on by the defendant, are as follows:

82-3: No person shall construct, add to, alter, or use any part of a plumbing system within buildings, public or private, until plans have been examined and approved by the Department of Water and Sewers, Department of Buildings, and other authorized departments, and a permit is issued and the fees paid. No plans shall be required for such portions of a plumbing system as are classed by this Chapter as minor repairs, which do not include the extension or reconstruction of soil, waste, and vent pipes or supply pipes or the addition of fixtures. Plans of each floor, or typical floors, shall be presented in duplicate and shall fully show the plumbing system, including drains, soil, waste, vent, re-vent pipes, traps, and all plumbing fixtures and all main water supply pipes within the building. Plans shall be legibly drawn and reproductions shall be clear at a scale of not less than one-eighth inch to the foot.

It is well established that the appellant can only raise in this court those issues which were specified in the post-trial motion. Nelson v. Union Wire Rope Corp., 31 Ill2d 69, 199 NE2d 769. Chapter 110, section 68.1(2) of the Illinois Revised Statutes requires that a post-trial motion particularly state the grounds relied upon for reversing the judgment of the trial court. The plaintiff maintains that the defendant may not raise the issue of plaintiff’s noncompliance with the Plumbing Ordinance of Chicago because she did not raise this issue in her written post-trial motion. In the third paragraph of her post-trial motion the defendant stated that: “The court erred in its failure to take judicial notice of Chapter 82, Section 3 of the Municipal Code of the City of Chicago relating to the obtaining of a permit to relocating plumbing in the premises herein described.”

We believe there is much merit to the argument that the issue before us was not specifically raised in the post-trial motion with the particularity required by the statute. Nevertheless we have considered the matter on its merits. The laws, including ordinances, that are in effect at the time and place of the contract’s formation affecting its validity, construction, discharge, and enforcement, are incorporated into the contract itself. Archibald v. Board of Education, 19 Ill App2d 554, 154 NE2d 867. However, not all violations of law brought about in the performance of a contract are considered serious enough to prevent recovery on the contract by the party who violates the law, even though that party has in a technical sense breached the contract. Where a slight violation of the law is involved by which the public interest is not harmed in a substantial way the breach of the contract will be overlooked, and recovery on the contract will be allowed. Meissner v. Caravello, 4 Ill App2d 428, 124 NE2d 615.

The intent of the legislature in formulating the statute that has been violated, the character of the illegality involved, and the way in which the court can best subserve the public interest and welfare are important factors for the court to consider in determining whether or not the artisan can recover under the contract. 6A Corbin on Contracts, § 1533.

The record shows that the plaintiff did not obtain a permit for the work to be performed or submit plans for the approval of the City department. However, the obtaining of a permit was not required by the contract; and no complaint was made by the city that the work performed by the plaintiff did not conform to existing code standards. A similar situation was presented to this court in Meissner v. Caravello, 4 Ill App2d 428, 124 NE2d 615. In that case a masonry contractor sought to foreclose on his mechanic’s lien. The defense raised by the owner of the building was that the lienor had failed to obtain a city permit as was required by the city ordinance, and therefore was precluded from a recovery for its work. The ordinance which the lienor had violated in the Meissner case required, as does the ordinance in the instant case, the filing of plans and the obtaining of a permit prior to the making of certain structural changes in a building. In Meissner this court held that because the contract involved did not provide for or require an act violative of any law it was not illegal. The court held that the ordinance that the lienor had violated had been enacted “. . . in order to give the building department an opportunity to deny a permit for valid reasons, but if the work has been done safely and lawfully no harm has been done. . . .” (Page 433.) The court allowed the lienor to recover in Meissner because the ordinance did not prevent recovery on a contract if the provisions of the ordinance were violated; and for the reasons that “. . . the public welfare which these ordinances were calculated to protect was not injured, and that the building commissioner was evidently satisfied that the improvements were legally performed and in compliance with the building code. . . .” (P 434.)

We feel that our decision in the instant case is governed by the Meissner decision. The ordinance which plaintiff has violated does not prohibit recovery for services rendered by the artisan who violates its terms; nor does the ordinance demonstrate any legislative intent to declare contracts illegal which are performed in violation of the permit and filing requirements. The record does not show any harm to the public welfare by the way in which this particular contract has been carried out. A technical breach of contract as in the instant case does not require us to declare the contract illegal unless there is a serious effront to the public policy embodied in the ordinance. Such an effront has not been shown here.

The case of Archibald v. Board of Education, 19 Ill App2d 554, 154 NE2d 867 is not applicable. That case was decided on plaintiff’s failure to show compliance with the written terms of his contract, a condition precedent to his right to recover; the question of the legality of the contract involved was not presented to the court for decision.

For the reasons given the judgment is affirmed.

Affirmed.

MURPHY, P. J. and ADESKO, J., concur.


text:
    People of the State of Illinois on the Relation of Irene J. Altman, and Irene J. Altman, Mother and Next Friend of Faye Diament, a Minor, Plaintiffs-Appellants, v. Board of Education of the City of Chicago, a Body Politic and Corporate, Benjamin C. Willis, General Superintendent of Schools, Thaddeus J. Lubera, Interim Superintendent, Curtis C. Melnick and Margaret Clyne, District Superintendents, Defendants-Appellees.
    Gen. No. 51,864.
    First District, First Division.
    November 20, 1967.

      Sidney S. Altman, of Chicago, for appellants.
    James W. Coffey, of Chicago (John T. Mehigan, Richard E. Girard, and Michael J. Murray, of counsel), for appellees.
   MR. PRESIDING JUSTICE MURPHY

delivered the opinion of the court.

This is a mandamus action, in which the relator seeks to compel the transfer of her daughter, Faye Diament, from the Hyde Park High School to the South Shore High School, because of emotional and psychological difficulties resulting from her attendance at Hyde Park. After a trial on the merits, the trial court denied the petition and the relator appeals.

The relator, Irene J. Altman, and her family live at 6921 Merrill Avenue, Chicago. Her daughter, Faye Diament, was a June 1964 graduate of the O’Keeffe Elementary School. In September 1964, Faye enrolled in the Hyde Park High School and commenced attending classes. At that time, 71st Street was the south boundary of Hyde Park High School and separated it from South Shore High School.

On April 15, 1965, the Board of Education, by resolution, established a new district (District 22) and extended the north boundary of the South Shore High School to 67th Street, which included the O’Keeffe school and the residence of the relator.

Subsequent to the adoption of the April 15, 1965, resolution, the relator, in person and in writing, requested a transfer of Faye to the South Shore High School. The transfer request was denied because of a Board policy and practice that assignment of elementary school pupils to high school affects future graduating classes only and does not retroactively apply to graduates of preceding years already enrolled in and attending high school.

The petition for writ of mandamus filed August 30, 1966, included allegations that it was the duty of the General Superintendent of the public schools of Chicago “to carry out the legislative acts of the Board of Education by ministering to the needs of the school children of Chicago so that they could get a good common school education as guaranteed by the Constitution of the State of Illinois taking into consideration the social, cultural and psychological needs of the students under his charge,” and that “the defendants, or either of them, acting in their own behalf or as agents in behalf of the SCHOOL BOARD OF EDUCATION, have abused their discretion and have acted arbitrarily in denying to the relator’s daughter the right to transfer from the Hyde Park High School to the South Shore High School.”

The petition alleged the following reasons for the allowance of the transfer:

a. The Hyde Park High School is further away in distance and in a less safe area.

b. None of the girl classmates of her own race from the O’Keeffe elementary school now attend Hyde Park; most of them are at South Shore High School.

c. The only girl classmates of her own ethnic background in any of her classes at Hyde Park High School, live at the north end of that district and will be going to the new Kenwood High School next year.

d. That the South Shore High School is 3 or more blocks closer to relator’s address than the Hyde Park High School and in a safer neighborhood; that the South Shore High School is an integrated school, whereas the Hyde Park High School is not, there being less than 10% white in attendance there, and will be completely resegregated next year.

e. None of her present girl classmates live in her immediate neighborhood which deprives her of a traveling companion.

f. There are no students at Hyde Park with whom she can form a kinship, boys and girls of her peer group associated with her in social, religious, and cultural activities, mostly attend South Shore High School, none going to Hyde Park High School.

g. That with the graduation of her brother, her role at Hyde Park High School will be that of a “loner” which is not conducive to her best interests and will have an adverse effect on her development and psychological welfare, as set forth in a medical report sent to defendant, MARGARET CLYNE, at the suggestions of MR. McKEAG, an Assistant Superintendent on DR. WILLIS’ staff.

h. That all of the above information is within the knowledge of the defendants or has been made known to them through letters, conversations and affidavits.

The petition included as an exhibit a letter dated July 15,1966, from Curtis C. Melnick, District Superintendent, addressed to the relator, in which it is said:

“You have been told on at least four occasions involving personal conferences with the counseling staff at Hyde Park High School, Dr. Blyth, and myself that you have no grounds whatsoever to request a transfer of your daughter, Faye Diament, to South Shore High School. There is no justification for your continuing to phone and to write to change this situation.
a
“In summary, there is no basis for granting a transfer to Faye to attend South Shore High School.”

Another exhibit attached to the petition was a letter dated August 26, 1966, written by Dr. Eileen C. Stack, Associate Superintendent in charge of Administration, and addressed to the husband of the relator, in which it is said:

“. . . Beginning in September, 1965 each new class of graduates from the O’Keeffe and Parkside attendance areas were to be admitted to South Shore High School. Thus in September 1965, ninth graders in the new territory added to South Shore would attend there; in 1966, ninth graders and tenth graders would attend; in 1967, ninth, tenth, and eleventh graders would attend; and in 1968, students in all four years who lived in the annexed territory would attend South Shore.
“Since Faye will be in the eleventh grade in September 1966, she is not eligible to attend South Shore.
“I am sorry that it is not possible for Faye to attend South Shore, but I am sure you understand that the same principle must be applied to all students in a given grade level and to deviate would be to grant preferential treatment to some and not to others.”

The answer of the Board included: “The BOARD and its administrative staff at all times since the adoption of the resolution of April 15, 1965, has administered the said resolution by admitting to South Shore only those pupils who have graduated from Parkside and O’Keeffe Elementary Schools subsequent to April 15, 1965.” It is further alleged that “more than 200 students who graduated from the Parkside and O’Keeffe Elementary Schools prior to April 15, 1965, are presently enrolled in Hyde Park High School; that the assignment of teachers, programming of courses, procurement of materials, and other education planning in both the Hyde Park and South Shore High Schools has been completed for the 1966-67 school year; . . . and that if the relief prayed for by the Relator in this case is granted to her and to others similarly situated, a great disruption of the program of public education in the City of Chicago would result.”

At the trial, the relator and her daughter, Faye Diament, testified in detail as to the reasons for the requested transfer. The testimony of the relator included: “My daughter comes from school at night on the CTA bus and walks. She doesn’t have anyone to come home with. I drive her to school in the morning. Her classes are over at approximately two or three. Depending. I leave my job at quarter to five. As to whether either Faye or my son has been attacked in the Hyde Park area, to Faye, nothing has happened. My son has been beaten up.”

Eileen C. Stack, called as an adverse witness under section 60, testified that she was the Associate Superintendent in charge of Administration for the Chicago Public Schools, and it was she who made the decision to deny the request for transfer. She stated that she had not seen a copy of a medical report from Dr. Arthur S. Wagner regarding Faye Diament when she wrote the letter of August 26, 1966. After reading the medical report, she said it would not have affected her decision. She further stated: “We do, in not more than 15 cases throughout the City, at least this has been our experience —issue permits to attend a school outside the usual school for a child who has a physical, medical problem, which, after investigation with the doctors — our own medical staff — finds that another school would be suitable for the child. If I may give you one example of one. We had a child with an active ulcer. She was, after a thorough investigation medically, put into a school which would permit her to go home at noontime so she could have the food she needed.”

The relator contends that: (1) It is the constitutional right of a student to receive “a good common school education” (Article VIII, § 1 of the Illinois Constitution), and the Board of Education and its administrative officers and employees, as agents of the General Assembly, are charged with this responsibility; (2) The General Superintendent has the duty to recognize the facts of social and church activities, when called to his attention, as well as residence, in determining the school community, resolving all doubts in the student’s favor; and (3) The refusal of the General Superintendent to consider the emotional and psychological welfare of a student seeking transfer is not reasonable and does not comply with the mandate of the Supreme Court.

Authorities cited by relator include People ex rel. Evans v. Cowen, 306 Ill 330, 137 NE 836 (1922), where the Supreme Court said (p 337):

“[T]he establishment of a high school district must be determined approximately from a consideration of the character of the territory, the place most accustomed to be used by the people residing therein as a center at which they gather to transact business, attend church and meet socially, and with reference to the school hours of the district being conveniently accessible to all the pupils in the territory of high school age.”

The relator argues, “The pro forma manner in which the defendants disposed of the transfer request indicates a dire need for judicial urging in order to accommodate the student’s needs. This should include the insistence that the General Superintendent, or his assistants, submit such reports from family physicians to an independent, impartial socio-medical board for review, or accept them as conclusive.”

The defendants assert that the issue in this mandamus suit is “whether the trial court properly refused to substitute its judgment for the official action taken by the Board and its General Superintendent of Schools in assigning the minor plaintiff, like all other pupils similarly situated, to attend school in the district where she resides where there is no evidence of bad faith or that the Board acted arbitrarily or capriciously.”

The defendants assert that the power and duty to determine what school a pupil shall attend is vested in the Board by section 34-18 of the Illinois School Code (Ill Rev Stats 1965, c 122), which provides:

“The board shall exercise general supervision and management of the public education and the public school system of the city, and shall have power:
“7. To divide the city into sub-districts and apportion the pupils to the several schools, but no pupil shall be excluded from or segregated in any such school on account of his color, race or nationality. The board shall, as soon as practicable, and from time to time thereafter, change or revise existing sub-districts or create new sub-districts in a manner which will take into consideration the prevention of segregation and the elimination of separation of children in public schools because of color, race or nationality. All records pertaining to the creation, alteration or revision of sub-districts shall be open to the public.”

Defendants’ authorities cited to show “that the question of what school a pupil shall attend is for determination by the school officials and not for the courts,” include Board of Education v. Board of Education, 323 Ill 152, 153 NE 584 (1926), where the Supreme Court said (p 158):

“We have heretofore held . . . that it is not within the province of the courts to determine the question of what high school is the more convenient for high school pupils to attend, and there are many decisions to the effect that such a question is properly left by the legislature to the decision of a ministerial officer.”

The defendants also contend that “where a public body such as the Board vested with statutory authority and responsibility exercises its discretionary power as it did in the case at bar, the courts will not substitute their judgment in mandamus proceedings for that of the public body.” Cited is People ex rel. Loughry v. Board of Education, 342 Ill App 610, 97 NE2d 615 (1951), where it is said (p 618):

“Our Supreme Court has repeatedly held that in discretionary matters the court will not substitute its judgment for that of an administrative body.”

Initially, we note that the medical report of Dr. Arthur S. Wagner regarding Faye Diament is not in the record, although it was shown to Dr. Stack during her interrogation by the relator. However, we think the testimony of the relator and her daughter does show that Faye has a social and emotional problem of some degree, which they charge to her enrollment and attendance at Hyde Park High School.

Conceding that the school a pupil shall attend is primarily a question for the determination of the school officials, we believe that the school authorities and the courts should be ever concerned with the “social and emotional problems” of the students to see that the students receive “a good common school education.”

It is the rule that courts “will not use a writ of mandamus to compel a party to perform an act unless it is affirmatively made to appear that it is his clear duty to do so; the petitioner must establish every material fact necessary to show the plain duty of the respondent before courts will interfere. ... No intendments will be indulged in to support the issuance of the writ.” (People ex rel. Pignatelli v. Ward, 404 Ill 240, 244, 88 NE2d 461 (1949).) If any reasonable doubt exists as to the question of discretion or want of discretion, the courts should hesitate to interfere, preferring to extend the benefit of the doubt in favor of the school officials. MacGregor v. Miller, 324 Ill 113, 118, 154 NE 707 (1926).

Examining this record in the light of the foregoing guidelines, we believe that the relator has failed to establish her right to have the writ issue, and the trial court was correct in denying the petition. While the record indicates that the April 15, 1965, extension of the north boundary of South Shore High School to 67th Street made South Shore more convenient for Faye to attend than Hyde Park, the Board policy and practice, that assignment changes of elementary school pupils to high schools affects future graduating classes only and not graduates of preceding years already enrolled in and attending high school, does not appear to be fraudulent or an oppressive or arbitrary abuse of the discretionary powers of the school officials. Perkins v. Stephens, 288 Ill App 492, 499, 6 NE2d 237 (1937); Board of Education of Drummer Tp. High School Dist. No. 118 v. Board of Education of Sibley Community High School Dist. No. 115, 323 Ill 152, 158, 153 NE 584.

For the reasons given, the judgment of the Circuit Court is affirmed.

Affirmed.

BURMAN and ADESKO, JJ., concur.