text:
    Loretta Goldman, Plaintiff-Appellee, v. Checker Taxi Company, Inc., a Foreign Corporation, Defendant-Appellant.
    Gen. No. 51,547.
    First District, First Division.
    June 12, 1967.
    Rehearing denied July 5,1967.
    Jesmer & Harris, of Chicago, for appellant.
    Milroy R. Blowitz, of Chicago (Leon C. Wexler, of counsel), for appellee.
   MR. PRESIDING JUSTICE MURPHY

delivered the opinion of the court.

Defendant appeals from an order which vacated a dismissal order and reinstated plaintiff’s cause of action.

Defendant contends that “plaintiff has failed to show any cause under Section 72 of the Civil Practice Act to vacate a dismissal order entered seventeen months pri- or to the making of the motion; and that plaintiff’s own negligence, and indifference to and disobedience of the previous orders of the court requiring production of income tax returns for discovery, bars the plaintiff from seeking relief in equity under Section 72 of the Civil Practice Act.”

The record shows that plaintiff’s personal injury complaint was filed July 18, 1962. On June 11, 1963, the court sustained defendant’s motion to dismiss “for failure of plaintiff to authorize tax statements.” The statement of claim was stricken, and the suit dismissed. This order of dismissal was vacated on November 5, 1963, and plaintiff was given “thirty (30) days to sign income tax authorizations.” On February 13, 1964, defendant’s second motion to dismiss, supported by affidavit, was continued to March 5, 1964, “by agreement between the parties hereto.” On March 5, 1964, the court sustained defendant’s motion and ordered “that this cause be and the same is hereby dismissed out of this court.” On August 6, 1965, plaintiff moved “to reinstate the above entitled matter in accordance with the Affidavit which will be filed on the hearing of the motion.” On December 28, 1965, the attorney for plaintiff filed an affidavit, which stated:

“1. That this matter was dismissed by this Honorable Court for failure to submit income tax returns of the plaintiff.
“2. That this office believed that the returns had been submitted to the attorneys for the defendant prior to the hearing on the motion to dismiss and thought the motion had been withdrawn.
“3. That on a review of all files at the Courthouse, it was discovered that there was a hearing on the motion and this matter had been dismissed.
“4. That the tax returns are still in our files and available to the defendant’s attorneys.
“5. That the plaintiff has a good claim and should not be denied her day in Court.”

On April 19, 1966, the trial court vacated the order of dismissal entered March 5, 1964, and set the matter for trial on December 8, 1966. A subsequent motion of defendant to vacate the order of April 19, 1966, was denied.

A review of the contentions and supporting authorities of both sides is unnecessary here. Our determination of the issue is based on what this record reflects.

A petition to vacate a default order under section 72 must show “due diligence” in making an available defense. The remedy was not designed to relieve a party of the consequences of his own neglect. (Till v. Kara, 22 Ill App2d 502, 509, 161 NE2d 363 (1959).) Persistent failure to comply with the orders of the court is a proper ground for dismissal (Supreme Court Rule 219(c) (v)), and a trial court has the responsibility to uphold the dignity and authority of the court. (Sager Glove Corp. v. Continental Cas. Co., 19 Ill App2d 568, 570, 154 NE2d 833 (1958).) The petition is addressed to the sound legal discretion of the court, and it is only when there is an abuse of discretion that a reviewing court will interfere. Dann v. Gumbiner, 29 Ill App2d 374,173 NE2d 525 (1961).

This record shows two dismissal orders for failure to comply with orders of the trial court, plus a seventeen-month delay before making a routine motion to vacate the second dismissal order. The supporting affidavit does not show diligence in presenting the motion to vacate, nor compliance with the order of court entered on November 5, 1963, to execute tax authorization within thirty days. We conclude this record shows an indifference to court orders and a lack of diligence in promptly moving to vacate the dismissal order of March 5, 1964.

For the reasons given, the order of the trial court entered April 19, 1966, vacating the dismissal order of March 5,1964, is reversed.

Reversed.

BURMAN and ADESKO, JJ., concur.


source: Caselaw Access Project

author: PBESIDING JUSTICE MUB-PHY.

license: Public Domain

text:
    Samuel L. Outlaw, Plaintiff-Appellant, Cross-Appellee, v. Young Men’s Christian Association, a Corporation, Defendant-Appellee, Cross-Appellant. Winifred McGill, Third-Party Defendant, Third-Party Plaintiff-Separate Appellant, Cross-Appellee, v. Young Men’s Christian Association, a Corporation, Defendant-Appellee, Separate-Appellee, Cross-Appellant, and Lawrence Kennon and Washington and Durham, Third-Party Defendants.
    Gen. No. 51,496.
    First District, First Division.
    June 12, 1967.

      Samuel L. Outlaw, pro se, of Chicago, appellant; Winifred McGill, pro se, of Chicago, appellant; Sidley, Austin, Burgess & Smith, of Chicago (James W. Kissel and Frederic F. Brace, Jr., of counsel), for appellee.
   Opinion by

PBESIDING JUSTICE MUB-PHY.

Not to be published in full.


author: ALLOY, J.

text:
    People of the State of Illinois, Plaintiff-Appellee, v. James F. Helm, Defendant-Appellant.
    Gen. No. 66-38.
    Third District.
    June 14, 1967.

      Peter Denger, of Rock Island, for appellant.
    Richard Stengel, State’s Attorney, of Rock Island, for appellee.
   ALLOY, J.

Defendant James F. Helm was indicted for murder committed by stabbing with a knife. On trial by jury, the jury found him guilty as charged and the court entered judgment and sentenced him to a term of 14 to 40 years. Defendant appeals to this court asserting error in (1) admission of evidence of a prior conviction of defendant by a court-martial, (2) reading of the court-martial conviction of a noninfamous crime to the jury, and (3) prosecutor referring to the conviction of such crime in final argument.

The record discloses that defendant was involved in what is described as “an altercation” in a tavern. He was seen to take a knife out in the tavern and place it at the throat of one individual. The defendant in company with others then went outside the tavern. After defendant had gone outside the tavern, he was then seen to stab one Milton Pearson with a knife. Defendant’s brother testified that defendant said to him immediately thereafter, “I think I cut him.”

Defendant took the stand and testified in his own behalf in the trial of the cause. The State then introduced the record of a 1952 court-martial conviction of defendant for the purposes of impeachment. The court-martial consisted of two charges. Charge I specified that the defendant together with two other persons did on or about April 20, 1952, by means of putting him in fear, steal from the presence of a certain Japanese National, “against his will, approximately three hundred (300) Yen.” Charge II specified that defendant, together with two other persons, did on the same date, commit assault upon another named Japanese National, “By stabbing him in the left arm with a dangerous weapon likely to produce grievous bodily harm, to wit: a knife.” Charges I and II were part of the same transaction involving a robbery and assault on two brothers. Defendant was convicted on both charges. On the trial of the cause before us, counsel for defendant objected to the admission of the court-martial conviction on the ground that the court-martial conviction did not contain the necessary elements of an indictment and trial by jury, and that Charge II of the court-martial was not for an infamous crime. In ruling on the objection, the trial court indicated that the State could introduce evidence showing that defendant was convicted of the offense in the nature of an infamous crime under the laws of the State of Illinois and that he was sentenced and that it was a general court-martial. The State’s Attorney then read both charges in the court-martial to the jury.

Only after counsel for defendant had made mention of the court-martial conviction in final argument, the State’s Attorney in reply referred to such conviction and stated specifically, “I want to say to you, ladies and gentlemen, that this is introduced for the purpose of affecting his credibility and this is the only purpose of it. The purpose is not to rest this case of 1965 on that conviction, but the purpose of this conviction shown you in 1952 is so you will be in a better opportunity to weigh this man’s testimony, the defendant when he took the stand, the same man who told you today that yes, he did give a different statement the night of the crime and the next day, but it was because the police got it down all wrong.”

It is argued on appeal that the use of the court-martial conviction as affecting the credibility of defendant, was improper since the court-martial differs very substantially from civilian criminal action. The case of Getz v. Getz, 332 Ill App 364, 369, 75 NE2d 530, is cited in support of this position. In that case, which was a divorce action in 1947, the Appellate Court concluded that conviction of a military desertion was not conviction of such felony or infamous crime that would constitute grounds for divorce.

In United States v. Price, 258 F2d 918, a contention was made that even though the Pennsylvania procedure with respect to the admission of evidence of prior convictions in first degree murder cases is constitutional, the record of a court-martial conviction was not evidence of a prior conviction, within the meaning of that term. The contention was specifically made that since the conviction was not the judgment of a civilian criminal court because of the nature of a court-martial proceeding, the constitutional safeguards present in a civilian trial were lacking. The court stated specifically that the answer to this argument is that it is settled that the judgment of a court-martial is to be accorded the same finality and conclusiveness, as to the issues there involved, as the judgment of a civilian court. Other states have authorized the use of court-martial conviction for impeachment purposes (Ewing v. State, 174 Neb 90, 116 NW2d 7; Nelson v. State, 35 Ala App 179, 44 So2d 802).

In Burns v. Wilson, 346 US 137, 97 L Ed 1508, the court declared that a Federal District Court has power, on a military prisoner’s application for habeas corpus, to review claims of fundamental unfairness in the process by which the applicant’s guilt was determined, where the military courts have manifestly refused to consider such claims. The court therein referred to the fact that there was a new Uniform Code of Military Justice which was enacted (in 1951) to meet objections and criticisms lodged against court-martial procedures. It then concluded that military courts, like the state courts, have the same responsibilities as do the Federal courts to protect a person from a violation of his constitutional rights.

It is noted that the court-martial referred to in the case before us took place in the year 1952 after the enactment of the Uniform Code of Military Justice in 1951. It appears that in the cause before us, the State’s Attorney did not read to the jury the defendant’s conviction of being A. W. O. L. since it was conceded that this was not an infamous crime on the precedent of the Getz case. In the court-martial under consideration by us, defendant was convicted of a crime which is infamous in the State of Illinois, that is, robbery. It is our conclusion, that, for purposes of impeachment, court-martial convictions of infamous crimes should be accorded the same finality as a judgment of a civilian court. The conviction of a defendant of an infamous crime of robbery could clearly be used for impeachment.

The question arises whether the reading to the jury of the remainder of the charge which referred to the stabbing of the Japanese National was prejudicial error under the circumstances. Infamous crimes, as indicated in People v. Kirkpatrick, 413 Ill 595, at 597, 110 NE2d 519, do not include the simple assault or battery. While it can be construed from the record that the court authorized only the reading of Charge I, the record shows that the State had contended that Charges I and II should be read together as constituting armed robbery. Since the second charge concerned itself with a transaction at the same time, it is suggested it could be rightfully concluded that we should look to the gist of the crime and not what it is called in a foreign jurisdiction in determining whether the crime is infamous and that it should, therefore, be admissible for impeachment purposes.

Another problem with which we are concerned in determing the basic issue is whether the State’s Attorney improperly argued the prior convictions of the defendant to the jury. It is noted that defendant’s attorney, in his closing argument, was the first to refer to the court-martial conviction in the first instance. It was only in reply that the prosecutor mentioned the conviction but also pointedly advised the jury that it was introduced exclusively for the purpose of affecting defendant’s credibility. The jury was properly instructed regarding the use of the former conviction and they were also advised prior to the reading of the conviction resulting from the court-martial that it was competent only for the purpose of impeachment.

While we do not believe that Charge II should have been read to the jury or have been the subject of comment and argument, in view of the record we do not believe that such reading or comment justifies a reversal of this cause. There was substantial evidence introduced in the trial of the cause showing the use of a switchblade knife by defendant in the tavern and also to the effect that defendant stabbed the deceased. The conviction shown as Charge I of the court-martial was properly admitted into evidence. On the basis of the record, such error as existed relating to Charge II of the court-martial, is not an adequate basis for reversal (People v. Squires, 27 Ill2d 518, 190 NE2d 361).

In view of the record in this cause, we do not believe that the reading of Charge II to the jury and the comment of the State’s Attorney in reply to defendant’s counsel’s argument would justify a reversal.

Affirmed.

STOUDER, P. J. and CORYN, J., concur.


author: JUSTICE CORYN.

text:
    In the Matter of the Estate of Alice M. Sullivan, Deceased. Dorothy Sullivan, et al., Appellants, v. John C. Sullivan, Administrator With the Will Annexed of the Estate of Alice M. Sullivan, Deceased, Michael J. Sullivan, Individually, and Under a Power of Attorney for Marguerite S. Chappel, et al., and General Telephone Company of Illinois, Appellees.
    Gen. No. 66-57.
    Third District.
    June 14, 1967.
    Kehr & Covey, of Chillicothe, for appellants; Harry C. Heyl, of Peoria, Sidney S. Deutsch, of Rock Island, and Nafziger & Otten, of Springfield (Kenneth H. Otten, of counsel), for appellees.
   Opinion by

JUSTICE CORYN.

Not to be published in full.


author: MR. PRESIDING JUSTICE SULLIVAN

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Belton Bills, Defendant-Appellant.
    Gen. No. 50,650.
    First District, Third Division.
    June 15, 1967.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Frederick F. Cohn and James J. Doherty, Assistant Public Defenders, of counsel), for appellant.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Eldridge Hersey, Assistant State’s Attorneys, of counsel), for appellee.
   MR. PRESIDING JUSTICE SULLIVAN

delivered the opinion of the court.

This is an appeal from a conviction of unlawful possession of narcotic drugs. Defendant was tried and convicted by a jury, and was thereafter sentenced to not less than four nor more than eight years in the penitentiary.

Defendant contends on appeal that: (1) his constitutional rights were violated when the court denied his motion to suppress evidence; (2) it was prejudicial error for the court to allow the police officer to relate his conversation with an undisclosed informer; (3) defendant was unlawfully and prejudicially denied a hearing on his motion for substitution of judge, and (4) the State did not prove beyond a reasonable doubt the identification of the defendant with or the continuity of possession of the narcotic drug.

According to the testimony at the hearing on the motion to suppress, defendant spent the evening of July 8, 1964, and the early morning of July 9, 1964, visiting a friend at the DuSable Hotel in Chicago. About 1:30 a. m. he left the apartment to purchase liquor. Defendant testified that about 2:00 a. m. he was on his way back to the hotel with the liquor he had bought. While crossing a parking lot he was stopped, arrested and searched by two policemen. Heroin was found on defendant’s person.

One of the arresting officers testified that about 2:00 a. m. on July 9, 1964, he had a conversation with a special police employee who told him Belton Bills was going after some stuff (meaning narcotics) and would be back in the area within an hour. The “area” was specified to mean 39th and Cottage Grove Avenue, a known narcotic hangout. According to the officer’s testimony, the special employee described how defendant was dressed. However, he waited with the policeman until Bills appeared, so as to point him out. Bills was arrested about 3:00 a. m. The officer stated that he had used the informer four times prior to the instant arrest and three times thereafter. When asked if the former information received was reliable he said it was. Asked if the cases had gone to completion, he responded, “Yes.”

Before the trial defendant submitted a motion to suppress the evidence obtained in the search after the arrest, on the ground that the arrest was not based upon reasonable grounds and was therefore a violation of his constitutional rights. The informer’s name was not disclosed. The court ruled the informer’s tip was reliable saying, “I believe he has established the reliability of the informer. He has used him seven times. He has had convictions.”

Defendant first contends that his constitutional rights were violated when the court erred by denying his motion to suppress evidence. He argues that the motion to suppress should have been allowed because the State failed to prove that the arresting officer acted on reasonable grounds, and therefore the evidence was obtained pursuant to an illegal arrest and search. The question is an evidentiary one rather than one of a constitutional nature. The Supreme Court of the United States, in McCray v. Illinois, No. 159, October Term, 1966, 386 US 300, 35 Law Week 4261, discussed the informer privilege and reasoned that a judge ruling on a motion to suppress is in a position similar to that of a magistrate determining if reasonable grounds have been shown for the issuance of a warrant for arrest. Whether the testimony will sustain a finding of probable cause is an evidentiary question and the standards thereof fall within the province of the given State. In deciding that the Constitution did not require the State to abandon the informer’s privilege, the court quoted Spencer v. Texas, 385 US 554, and said at page 4265:

“To take such a step would be quite beyond the pale of this Court’s proper function in our federal system. It would be a wholly unjustifiable encroachment by this Court on the constitutional power of States to promulgate their own rules of evidence . . . in their own state courts. . . .”

The question in the instant case, therefore, becomes one of the sufficiency of the evidence of probable cause as required in Illinois. At the hearing on the motion to suppress one of the arresting officers testified that the informer gave him a full description of defendant and specified where defendant would be within the hour. As noted above the officer was questioned about his previous dealings with the informer. A portion of that examination follows:

“Q. After you went on duty that night, did you have occasion to have a conversation with a special police employee ?
“A. I did.
“Q. And had you used this special police employee before ?
“A. I have.
„ “Q. And how many times have you used that special police employee before this date ?
“A. About four to six times, I would say.
“Q. And had this person’s information proved to be reliable?
“A. Yes, it has.”

There can be no question but that this is within the rule of People v. Durr, 28 Ill2d 308, 192 NE2d 379. Justice Schaefer, in his dissent, set out the officer’s testimony regarding the informer’s reliability on page 317:

“ ‘Q. ... Now, Officer Webster, on February 22, 1961, did you have an occasion to have a conversation with an individual whom you knew as an informer?
“‘A. Yes, I did.
“ Q. Had you ever had a conversation with that individual previous to this date?
"A. Yes, I did.
“ £Q. Had this general information furnished to you in the prior conversation proved to be reliable ?
"A. Yes.’”

The court in the majority opinion affirmed the conviction in that case holding that the police officer’s testimony as to what he was told by an unidentified informer was sufficient probable cause to make an arrest without a search warrant. In that case the court, after discussing many cases, both of the United States Supreme Court, and the Illinois Supreme Court, stated that the court realized that judicial opinion in this area of law is not unanimous, citing opinions in agreement and opinions reaching an opposite conclusion. Nonetheless, the court did affirm the conviction and that case has been followed in People v. McClellan, 34 Ill2d 572, 218 NE2d 97, and in the Illinois Supreme Court opinion in People v. McCray, 33 Ill2d 66, 210 NE2d 161, (affirmed by the United States Supreme Court, supra). In light of these cases we feel that the ruling of the trial court on Bills’ motion to suppress was proper.

Defendant next contends that it was error at the trial for the court to admit hearsay testimony by the officer relating to his conversation with the informer. During cross-examination of the police officer defense counsel asked if he had a warrant for Bills’ arrest. The answer was, “No.” On redirect the State elicited testimony about a conversation between the officer and the informer regarding defendant’s possession of narcotics. The court overruled objections to that testimony because the basis for it was laid during cross-examination. We feel that the ruling was proper. Defense counsel by innuendo suggested that the arrest was a violation of defendant’s constitutional rights. By that he invited further interrogation by the prosecution to show that the officer acted reasonably, and he may not thereafter complain because the witness stated something that may have been detrimental to defendant’s case. People v. Hampton, 24 Ill2d 558, 182 NE2d 698.

Defendant next contends that the court erred in denying defendant’s motion for a change of venue without holding a hearing on the merits of the matter. The motion was accompanied by an affidavit of defendant which specifically alleged prejudice of the trial judge. Although defendant made his motion under the authority of a provision for change of venue found in Ill Rev Stats, 1963, chapter 146, par 18, he now seeks to have the ruling on that motion declared erroneous by virtue of the provision for substitution of judges, found in the Illinois Code of Criminal Procedure. (Ill Rev Stats 1965, c 38, par 114^5 (c).) This latter section provides that a motion for substitution of judges for cause may be made at any time, and that a hearing shall be conducted on the merits of the motion. This section, according to the Committee Comments thereon and People v. Myers, 35 Ill2d 311, 220 NE2d 297, incorporates and therefore is to be read and construed with the change of venue section mentioned above. With that in mind, the term “at any time” must fall within the limits set forth in the cases dealing with the venue section. It has been held that a petition for a change of venue after the court has ruled on any matter going to the merits of the case comes too late. People v. Myers, supra; People v. Wilson, 29 Ill 2d 82, 193 NE2d 449; People v. Golson, 32 Ill2d 398, 207 NE2d 68. The Myers case was decided after the effective date (January 1, 1964) of the New Code of Criminal Procedure, and made mention of it, and yet made no change in the existing rule as to timeliness. Defendant Bills filed his motion for change of venue after the court had ruled on his motion to suppress, which was a ruling on the merits. The motion for change of venue was untimely and therefore was properly denied.

Defendant lastly contends that the State did not prove beyond a reasonable doubt the identification of defendant with or continuity of possession of the narcotic drug. We have examined the record on this point and find the contention to be without merit.

For the foregoing reasons the judgment of conviction is affirmed.

Affirmed.

SCHWARTZ and DEMPSEY, JJ., concur.


author: MR. JUSTICE DEMPSEY

text:
    Belden Manufacturing Co., a Corporation, and Radio Steel Mfg. Co., a Corporation, (Belden Manufacturing Co., a Corporation), Plaintiff-Appellant, v. Chicago Threaded Fasteners, Inc., a Corporation, and C. O. Henriksen Company, a Corporation, (Chicago Threaded Fasteners, Inc., a Corporation), Defendant-Appellee.
    Gen. No. 51,279.
    First District, Third Division.
    June 15, 1967.

      Leonard M. Ring, of Chicago and Robins, Davis & Lyons, of Minneapolis, Minnesota, for appellant.
    Clausen, Hirsh, Miller & Gorman, of Chicago, for appellee.
   MR. JUSTICE DEMPSEY

delivered the opinion of the court.

The plaintiff, Belden Manufacturing Co., a lessor, appeals from an order dismissing Count I of its complaint which charged its lessee, the defendant, Chicago Threaded Fasteners, Inc., with negligence in the use and operation of an incinerator which caused a fire and resulted in damage to the plaintiff’s property.

In 1961 the plaintiff leased a portion of a building it owned to the defendant for a period of five years. In addition to the usual terms contained in such instruments, the lease provided that;

“. . . Lessee will keep said premises ... in good repair . . . and upon the termination of the lease . . . will yield up said premises to Lessor in good condition and repair (loss by fire and ordinary wear excepted . . . .”

In September 1962 a fire occurred, allegedly originating in the portion of the premises leased to the defendant, which partially destroyed the plaintiff’s property. The plaintiff, and another tenant whose property was also damaged, brought suit against both the defendant and the manufacturer of an incinerator which had been installed on the defendant’s portion of the leased premises. The defendant moved to dismiss the plaintiff’s count against it on the ground that the above-quoted provision in the lease was an effective exculpatory clause relieving it from liability for the negligent acts alleged in the complaint. The trial court sustained the defendant’s motion, ordered Count I dismissed and found that there was no just reason for delaying an appeal from its order. (Ill Rev Stats, 1963, c 110, § 50 (2).)

It is the contention of the plaintiff that Ill Rev Stats, 1963, c 80, § 15a (which declares that exculpatory clauses exempting lessors from liability for damages resulting from the lessor’s negligence are void and unenforceable) should be construed as applying equally to exculpatory clauses exempting lessees; that if the statute is not so construed it is arbitrary class legislation which violates the Fourteenth Amendment of the United States Constitution and section 2, article II and section 22, articlé IV of the Illinois Constitution; that in the event the statute is held to be unconstitutional, the validity of all exculpatory clauses should be declared void as against public policy; and if, on the other hand, the statute is held to be constitutional, this court should find that exculpatory clauses favoring lessees are contrary to the public policy of this state.

This appeal was originally taken to the Supreme Court of Illinois. A motion was made by the defendant to transfer the appeal to this court. The motion was denied and the case was set for oral argument. The points made in the plaintiff’s brief (which is the brief it stands on in this court) were argued orally. After the argument was completed the court transferred the case here stating that it had no jurisdiction on direct appeal. Under these circumstances we may assume that the Supreme Court rejected the constitutional points advanced by the plaintiff. People v. Valentine, 60 Ill App2d 339, 208 NE2d 595 (1965).

There remain, therefore, just two points for the consideration of this court: whether section 15a of chapter 80 should be construed as applying to lessees as well as to lessors, and whether exculpatory clauses favoring lessees should be held void as being contrary to public policy.

Section 15a is as follows:

“Every covenant, agreement or understanding in or in connection with or collateral to any lease of real property, except those business leases in which any municipal corporation, governmental unit, or corporations regulated by a State or Federal Commission or agency is lessor or lessee, exempting the lessor from liability for damages for injuries to person or property caused by or resulting from the negligence of the lessor, his agents, servants or employees, in the operation or maintenance of the demised premises or the real property containing the demised premises shall be deemed to be void as against public policy and wholly unenforceable.”

The language of this statute is unequivocal. The statute is limited to any agreement exempting any lessor from liability for his negligent acts or those of his agents, servants or employees. The statute is, and was clearly meant to be, applicable only to agreements exonerating lessors and we cannot possibly read into it the words “or lessee,” as the appellant would have us do. To do so would be acting contrary to both the unambiguous wording of the statute and the obvious intention of the General Assembly.

In approaching the plaintiff’s last point — that exculpatory clauses favoring lessees should be held void— we are immediately confronted with the opinion in Cerny Pickas & Co. v. C. R. Jahn Co., 7 Ill2d 393, 131 NE2d 100 (1955) which construed the exact language used in the lease in the present case: “Lessee . . . will yield up said premises ... in good condition and repair (loss by fire and ordinary wear excepted) . . . .” The Appellate Court (347 Ill App 379, 106 NE2d 828) had held that such an exculpatory clause was against public policy and was invalid. The Supreme Court reversed. It held that the provision in the lease relieving the lessee from responsibility for fire resulting from its own negligence was valid and enforceable. The plaintiff asks us to reaffirm the Appellate Court decision and once again declare the clause invalid. It is not within our authority to overrule the Supreme Court or to modify its decisions. Agricultural Transp. Ass’n v. Carpentier, 2 Ill App 2d 19, 116 NE2d 863 (1953); Miller v. City of Chicago, 25 Ill App2d 56, 165 NE2d 724 (1960); Sullivan v. Harris Trust & Savings Bank, 8 Ill App2d 397, 132 NE2d 69 (1956). Moreover, as we mentioned heretofore, this same point was argued in the Supreme Court in the present case. The parties’ briefs put the Cerny-Pickas case directly in issue and the plaintiff requested the Supreme Court to reconsider that opinion. It is not unreasonable to surmise that if the court were inclined to review its decision it would have retained this appeal.

The order of the Circuit Court is affirmed.

Affirmed.

SULLIVAN, P. J. and SCHWARTZ, J., concur.


author: MR. JUSTICE SCHWARTZ

text:
    Richard J. Daley, Mayor and Local Liquor Control Commissioner of the City of Chicago, Plaintiff-Appellant, v. Leo Casale, Licensee, License Appeal Commission of the City of Chicago, A. L. Cronin, Chairman, Defendants-Appellees.
    Gen. No. 51,340.
    First District, Third Division.
    June 15, 1967.
    Raymond F. Simon, Corporation Counsel, of Chicago (Sydney R. Drebin, Henry N. Novoselsky and Thomas F. Strubbe, Assistant Corporation Counsel, of counsel), for appellant.
    Sydney Marovitz, of Chicago, for appellee.
   MR. JUSTICE SCHWARTZ

delivered the opinion of the court.

The Mayor of Chicago, as Local Liquor Control Commissioner (Commissioner) revoked the license of the defendant Leo Casale to operate a dramshop on two grounds:

1. That the licensee is not a proper person to hold a City of Chicago Retail Liquor License by reason of his Federal Indictment on April 16, 1965, for interstate check fraud and attempting to fix a basketball game; and
2. That on July 9, 1965, during an altercation on the licensed premises, the licensee assaulted a patron on said premises, one John Roel, in violation of the statutes of the State of Illinois and the ordinances of the City of Chicago.

Defendant appealed to the License Appeal Commission, which reversed the order of revocation. The Commissioner then brought suit in the Circuit Court for administrative review. The court affirmed the decision of the License Appeal Commission and the Commissioner appeals.

It is conceded by the Commissioner that the charge with respect to the check fraud cannot be sustained, and we therefore limit our consideration to the sufficiency of the evidence on the finding that the licensee assaulted a patron on the premises.

It is undisputed that Roel, who had worked for defendant as a bartender, entered the dramshop on the night of July 9, 1965, with a male friend, Pat Shaw, and that a fight between Roel and the defendant occurred. Roel testified that he loaned defendant $3,000 when the two men had contemplated a partnership in the operation of the lounge and that defendant still owed him $800; that he came to the dramshop on the night in question to collect the debt, that he went behind the bar and was looking in the cash register when defendant entered; that defendant said he would not pay Roel the money; and that defendant then began a fight by grabbing Roel at the throat, throwing a punch and then tackling him.

Defendant testified that he came into the lounge and saw Roel at the cash register; that he told Roel he did not owe him any money; that he sat on a bar stool across from Roel who was still at the cash register; that Shaw came up behind him and that Roel punched him in the side of the head when he turned to watch Shaw. He further testified that Roel came out from behind the bar and began to hit and kick him; that he grabbed Roel’s waist to protect himself and that Roel administered such a beating to him, he spent 10 days in the hospital. Sidney Clark, a bartender at the lounge, corroborated defendant’s testimony that Roel started the fight by punching defendant and that Roel continued to hit and kick the defendant who was on the floor and in a dazed condition. Roel, who was 21 years old and an ex-football player, was six feet one inch tall and weighed 240 pounds. On oral argument it was stated by both parties that defendant was five feet, nine inches tall and weighed 140 pounds.

This court has on numerous occasions sustained the action of the Commissioner in revoking licenses of dramshop owners, Daley v. Kilbourn Club, Inc., 64 Ill App2d 235, 211 NE2d 778; Nechi v. Daley, 40 Ill App2d 326, 188 NE2d 243, and has recognized that the Mayor as Local Liquor Control Commissioner is vested with broad discretion to deal with the problems presented by a business “fraught with danger to the community.” Daley v. License Appeal Commission, 11 Ill App2d 421, 138 NE2d 73; Nechi v. Daley, supra. The decisions in the cases herein cited have also stated the principle however that the order of revocation must be based upon sufficient evidence.

In the instant case defendant entered his own place of business to find an ex-employee standing at an open cash register. Accepting the testimony of the city’s witness, it is doubtful whether there is sufficient evidence to support the finding that the defendant assaulted John Roel. The narration by Roel, moreover, is incredible when consideration is given to the disparity in the size of the two men and the severity of the beating the defendant received.

The trial court properly sustained the order of the License Appeal Commission reversing the order of revocation, and the judgment of the Circuit Court is affirmed.

Judgment affirmed.

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