author: MR. JUSTICE BRYANT

text:
    Admiral Oasis Hotel Corp., a Corporation, Plaintiff-Appellant, v. Home Gas Industries, Inc., a Corporation, and Mueller Climatrol Co., a Corporation, Defendants-Appellees.
    Gen. No. 49,959.
    First District, Second Division.
    November 23, 1965.
    Rehearing denied April 22, 1966.

      Irving S. Berman and Seymour I. Regal, of Chicago, for appellant.
    Burke and Ryan, Robert E. Burke, and James T. Ryan, of Chicago, for appellee, Home Gas Industries, Inc.; Anton J. Valukas, of Chicago (James P. Chapman, of counsel), for appellee, Mueller Climatrol Co.
   MR. JUSTICE BRYANT

delivered the opinion of the court.

This appeal comes from an order entered June 26, 1964, in the Circuit Court of Cook County, Illinois, dismissing the appellant’s third amended complaint for failure to state a cause of action.

The appellant, Admiral Oasis Hotel Corporation, hereafter called Admiral, purchased 59 air-conditioning units manufactured by Mueller Climatrol Co., hereafter called Mueller, but distributed and sold by the defendant Home Gas Industries, Inc., known hereinafter as Home.

Count I of the complaint alleges that when Admiral began construction of a hotel in August of 1956, one H. Schwartz, an officer and duly authorized agent and sales representative of Home, approached Irving Root-berg, the principal stockholder of Admiral, with the request that Admiral purchase its room air-conditioning units from Home. It is alleged that these air-conditioning units were manufactured by Mueller. It is further alleged “that said Schwartz did state, represent, and warrant that Mueller had commenced making a new room-air-conditioning unit and that these units were well constructed and would perform the work of cooling the rooms of said hotel as well or better than any other unit on the market; that said Schwartz also represented that said units were well constructed and durable and able to do the job well and that Mueller had just commenced manufacturing these units and was anxious to get into the room-air-conditioning market; that Root-berg, on behalf of Admiral, did purchase said units as a direct result and consequence of the aforesaid representations and warranties upon the recommendation and representations of said Schwartz, agent for Home, as above set forth; and that the same were not purchased by trade name, except as a convenient way of defining the item to be purchased.”

The complaint further alleges that these units were delivered by Home on September 6, 1956, and that they did not operate properly in the following respects: (1) the units leaked water or other liquids into the rooms, (2) the units were not dependable and required constant servicing, (3) in cool weather it was necessary to remove outside louvers and block up the exterior vents so as to prevent excessive chilling of rooms by reason of leakage of cold air through the units.

The complaint further alleges an implied warranty that all of the units “would perform the work for which they were intended, namely the cooling of the rooms of the hotel. . . .” It further alleged that on or about August of 1960, four years after the units were delivered, “because it was clear that said units were incapable of ever operating properly and satisfactorily,” the said units were removed and replaced with new units produced by another manufacturer.

Admiral also claims that it was damaged in that it lost large sums of rental income for the reason that said rooms could not be rented to hotel guests if not adequately air-conditioned; that the walls, carpeting and furniture therein were damaged by reason of the leakage of water and other liquids from the units; and that Admiral had to.spend $13,340 for new units. Damages are sought against the defendant Home in the amount of $75,000.

The first principal point raised on behalf of the seller is that the representations made by its agent, Schwartz, merely constituted expressions of opinion and should not be construed as a warranty. As Home points out in its brief, “It is essential to a warranty that the purchaser shall have relied on the representations of the seller and it must have been the intention of the parties that the statements were to be construed as a warranty.”

The allegation upon which the appellant relies is that which states that Home represented and warranted that the units were of good quality, well constructed and would perform a cooling job as well or better than any other air-conditioner on the market. Home contends that such a statement could not be construed as a warranty because it is not a positive affirmation of some fact capable of being proven or disproven and is in fact an abstraction which means one thing to one person and something else to another. It is argued, for example, that people would disagree as to how cold “cool” is. How good is “well constructed” ?

This argument is without merit. The standard against which these statements is to be measured is that of ordinary commercial usage and the common understanding of people in a matter such as this. Uniform Sales Act, Ill Rev Stats 1963, c 121½, § 71; Sterling-Midland Coal Co. v. Great Lakes Coal & Coke Co., 334 Ill 281, 165 NE 793 (1929). It is true that men might disagree as to whether an air-conditioner should cool to 72 degrees or 68 degrees or some other specific temperature. It is clear, however, that the machine must cool to some extent. Beyond that, whether or not an air-conditioner is or is not operating adequately is a question of fact to be decided by the trier of fact. The terms used in the alleged warranty are not so vague as not to be capable of being proved.

The seller claims that Admiral knew it was buying a new, untried, unproven piece of merchandise. While it is true that the manufacturer was just starting the production of these units, it is also true that there is an allegation that the seller’s agent warranted them. We believe that the complaint reasonably sets out facts, which, if proven, would establish an express as well as the ordinary implied warranty that the air-conditioners would be of merchantable quality. Uniform Sales Act, Ill Rev Stats 1955, c 121½, § 15(2).

Home also claims that an action founded upon express and implied warranties is inconsistent with the continuous use of the units for an unreasonable length of time. Home points out that Admiral used the units for four cooling seasons before taking them out. In a letter written by Admiral to Home dated October 1957, the appellant complains of the manner in which the machines operated. The letter points out that Admiral owned three other buildings which made use of room air-conditioners and that in the preceding three years an aggregate of about five or six service calls had been required for all these other units, as opposed to constant service calls required for the units manufactured by Mueller. The letter also points out that the Mueller units had to be taken from the premises for repair, while the units in the other buildings were repaired on the scene.

This letter was not incorporated in the complaint, but is before this court on a motion to amend the complaint so as to include the allegation that Home was notified that the machines did not operate properly. It is argued by Home that this letter was a part of the earlier complaints, and that appellant should not be permitted to bring this material in after having voluntarily excluded it from the third amended complaint.

The motion to strike and dismiss the third amended complaint never set forth as grounds the fact that in this complaint there was no allegation of prompt notice. The Civil Practice Act, Ill Rev Stats 1963, c 110, § 45 (1) states that “The motion shall point out specifically the defects complained of . . . Several decisions have held that a motion to dismiss cannot be allowed where specific grounds are not set forth. Hitchcock v. Reynolds, 278 Ill App 559 (1935); Central Illinois Electric & Gas Co. v. Scully, 17 Ill2d 348, 161 NE2d 304 (1959). An obvious companion to such a rule is that grounds not specified in the motion to dismiss cannot be urged on appeal. Had these grounds been specified, appellant would have reincorporated the letter in his complaint.

Such an amendment may be permitted under Section 7 of the Judicial Article that the Appellate Court may exercise such original jurisdiction as may be necessary to the complete determination of any case on review and under Ill Rev Stats 1963, c 110, § 101.50, Supreme Court Rule 50 which has been adopted by this court. Since the pleadings would be more complete and since no prejudice will result to defendants thereby, the motion to incorporate the letter as part of the complaint is allowed.

We feel that the fact the machines were retained by the appellant for such a long period of time has great probative value, but we do not think that as a matter of law this would invalidate the claim set out in the complaint. If it can be proved that Home made representations that the machines would be fixed, or had been fixed, a trier of fact might come to the conclusion that the retention of the air-conditioners was not unreasonable. Whether or not this can be shown would depend on the nature and the quality of the proof. We think that Home should be required to answer the charges brought out in the complaint. We feel the complaint satisfactorily alleges a warranty of merchantability and alleges a breach of that warranty in that the machines did not operate properly.

It has also been argued oh this appeal that there was an implied warranty of fitness for a particular purpose under the Sales Act, Ill Rev Stats 1955, c 121½, § 15 (1). We do not think that the complaint alleges sufficient facts on which to base a claim under this warranty. We hold, therefore, that this complaint does not set forth a claim under an implied warranty of fitness for a particular purpose.

Count II of the complaint states two causes of action against the manufácturer, Mueller Climatrol Co. The first claim is of an implied warranty of merchantability; the second is based in negligence in that Mueller carelessly designed, constructed and manufactured the units.

There is no question but that a purchaser may sue a manufacturer with whom he is not in privity when the cause of action arises in negligence. As the Supreme Court said in Suvada v. White Motor Co., 32 Ill2d 612, 210 NE2d 182 (1965). “Implicit in Lindroth v. Walgreen Co. 407 Ill 121, was the view that the general rule, rather than the exception to a so-called ‘general rule,’ is that a manufacturer may be liable for injuries to a person not in privity with him and that such liability is governed by the same principles governing any action for negligence. [Citations omitted.] ”

Mueller, however, points out that it gave an express warranty which specifically bars recovery for any special, indirect or consequential damages “or for any damages arising from use of the product specified herein.” There are many cases in Illinois which state that a disclaimer of implied warranties in a contract of sale will relieve the seller or manufacturer from liability if the merchandise proves faulty. The courts have tended to limit such disclaimers, especially in recent years.

“As to disclaimers or limitations of the obligations that normally attend a sale, it seems sufficient at this juncture to say they are not favored, and that they are strictly construed against the seller.” Henningsen v. Bloomfield Motors, 32 NJ 358, 161 A2d 69, 77, 78, 75 ALR2d 1, 14 (1960).

In the case at bar there was no written contract. If the plaintiff can prove that the disclaimer of warranties was not made part of the oral contract, but was merely part of the warranty that came with the air-conditioners, it cannot be bound by the disclaimer. Under such facts, the contract would have been made before delivery of the machines, and any disclaimer would be a unilateral attempt by one of the parties to limit its duties after the contract had been made. Obviously the buyer cannot be bound by such an attempt.

Even if the oral contract did contain some reference to a warranty, it is extremely doubtful that the buyer would be bound by the disclaimer of warranty unless he had specifically been made aware that such a disclaimer existed as part of this warranty. As was said in Henningsen v. Bloomfield Motors, supra, in the absence of fraud, one who entered into a contract without making himself fully aware of its import cannot later relieve himself of the consequences. That case, however, held that where a written contract held a disclaimer of warranties, and such a disclaimer had not been called to the attention of the buyer, the buyer could not be bound. The fact that in that case the contract was written while in the case at bar it was oral, would make no difference.

While the contract in the case at bar was made before the effective date of the Uniform Commercial Code, Ill Rev Stats 1963, c 26, we note that this opinion is also in keeping with the new legislation. Section 2-316 of the Code requires that any attempt to modify or exclude implied warranties of merchantability must specifically mention merchantability and must be conspicuous in the case of a written contract.

In short, when one purchases a product, he has a right to assume that it will be fit for normal use. A seller or manufacturer cannot disclaim its responsibility for the product unless the buyer is made fully aware that he takes the product subject to such conditions.

The appellee, Mueller, also argues that the complaint is not specific enough. The complaint against Mueller alleges, as in the complaint against Home, that the units leaked water or other liquids into hotel rooms, that they failed to operate in regular and dependable fashion and required constant servicing, and that they leaked cold air so that it was necessary to remove outside louvers and block up the exterior vents. Properly manufactured air-conditioners do not normally have material defects. We do not think it is necessary for the appellant to specify further in his complaint as to the causes of these defects. In cases of this sort, the purchaser is not an expert in the mechanics of an air-conditioner and cannot be expected to know, for example, precisely what causes the fluids to leak, which valve may be broken, what tube may not be connected properly. The appellant has alleged that it handled the units with care at all times, and no suggestion has been made that all these units have been tampered with in some way. We hold, therefore, that the allegations in the complaint state a cause of action of negligence either in design or construction so as to require Mueller to answer the complaint.

It has been urged that our opinion in Suvada v. White Motor Co., 51 Ill App2d 318, 201 NE2d 313 (1964), would support a ruling that the appellant could maintain his complaint insofar as it sounds in contract. The Supreme Court’s opinion in that case reserved the question whether the contract action could be maintained without privity.

We hold that the complaint states a cause of action in tort in that the manufacturer placed a negligently designed or manufactured machine on the market. We feel, however, that there is no basis for a contract action against the manufacturer.

With regard to the extent of the liability of Mueller, it might be argued that the damages sought in this case are beyond the ambit of the risk this defendant took when it put the product in question on the market. It could be argued that even if the manufacturer were held responsible for damages to carpets and draperies, it should not be held liable for loss of rents. The rationale behind such an argument would be that any manufacturer should realize that any air-conditioner is likely to be placed in a room that is furnished with carpets, rugs, or draperies. If these machines leak, damage is likely. Such an argument would then urge that a manufacturer of air-conditioners should not be held to be on notice that the machines could be sold to a hotel or motel where the lack of proper air-conditioning could cause a loss of revenue.

We will not undertake to decide such a problem here; that is a question for the trier of fact. It might be that the sale of 59 units actually put the manufacturer on actual notice that the machines were being sold to this particular purchaser. It might be. shown that the machines were in fact sent from the manufacturer to Admiral Oasis.

As was said in the recent case of Kinsch v. Di Vito Const. Co., Inc. 54 Ill App2d 149, 154, 203 NE2d 621, 624 (1964), “Whether the injury follows in a natural or probable sequence from the [negligent] acts in question is determined on the basis of whether an ordinarily prudent person ought to have foreseen that some injury might occur, although the precise injury which in fact occurred need not have been foreseen.”

It will be for the trier of fact to determine whether Mueller should have foreseen the damages complained of here.

Having decided that there was not a cause of action in contract against the manufacturer,, and having decided that there was no contract entered into which would of necessity limit the extent of damages, either by a waiver on the part of the buyer of implied warranties or through the limiting language of the express warranty, we will go no further in attempting to determine the facts of the case at bar. Any further action by this court should wait until the parties have submitted proof and the trier of fact has made findings.

The judgment of the Circuit Court is reversed, and the cause is remanded with instructions for further proceedings not inconsistent with this opinion.

Judgment reversed and cause remanded for proceedings not inconsistent with this opinion.

BURKE, P. J. and LYONS, J., concur.


source: Caselaw Access Project

author: MR. JUSTICE LYONS

license: Public Domain

text:
    Ralph Horween and Genevieve B. Horween, Plaintiffs-Appellants, v. Harold H. Dubner, Annette Dubner and Exchange National Bank, Defendants-Appellees and Cross-Appellants.
    Gen. No. 50,041.
    First District, Second Division.
    November 23, 1965.

      Spray, Price, Townsend & Cushman, of Chicago (Robert S. Cushman and James G. Hiering), for appellants.
    Kirkland, Ellis, Hodson, Chaffetz & Masters, of Chicago (Vernon M. Welsh, Edward G. Proctor, and Frank L. Winter, of counsel), for appellees and cross-appellants.
   MR. JUSTICE LYONS

delivered the opinion of the court.

This is an appeal from a decree which, in substance, approved the findings of a Revised Master’s Report that the conditions of an easement were violated, that the violation failed to terminate the easement, that a counterclaim of defendants be dismissed with prejudice and that plaintiffs’ request for attorneys’ fees be denied.

The property that is the subject of this lawsuit is part of a 5.76 acre tract of land that was originally owned in its entirety by plaintiffs Ralph Horween and his wife, Genevieve B. Horween. The tract is located in the northeast section of Winnetka about a block from Lake Michigan and is bounded on the north by Private Road and on the south by Tower Road. Plaintiffs purchased the property from Harold Ickes in 1945. At that time, the property was heavily wooded except for cleared areas immediately surrounding three buildings, which consisted of a large stucco main residence, a chauffeur’s cottage and a gardener’s cottage. Plaintiffs have lived in the main house since 1945 until recently when they moved to the chauffeur’s cottage and rented the main house to a friend.

In 1954 and 1955 plaintiffs sold three lots from their property. No utilities were available on Private Road except gas. Plaintiffs knew this when they sold a lot to Kenneth Prince. Therefore, they reserved easements in their deed to Prince running next to the north-south lines on both sides of the lot for the benefit of the adjacent lot immediately to the north.

In July, 1956, plaintiffs sold this adjacent lot on the north to defendants, Dr. Harold H. Dubner and his wife, Annette Dubner. At the closing of the deal, plaintiffs told defendants’ attorney about the easements over the Prince lot for the purpose of reaching the utilities on Tower Road, and that they would send him a copy of the easement reservations, which they did a few days later.

Prince had laid his driveway and completed his landscaping before defendants installed their utilities. Thus hardship would incur to defendants, as the Prince lot easement required restoration of the property by anyone making use of the easement. Plaintiff Ralph Horween discussed this problem with Prince in April, 1957. He told Prince that in order to save both defendants and Prince a lot of grief, he would grant defendants a second easement over his own property, along the east side of the Prince lot. On April 30, 1957, plaintiffs had such an easement drafted, and it was delivered to defendants’ attorney. It is this easement that is involved in this case. By way of clarification, defendants now have a total of three access routes to Tower Road for utilities; viz., two strips over the Prince lot along the west and east lot lines thereof, which were created by the easement reservation in the deed from plaintiffs to Prince, and a five-foot strip over plaintiffs’ property along the east line of the Prince lot, which was created by a gift from plaintiffs to defendants. The testimony of plaintiff, Ralph Horween, is to the effect that he granted the easement only to accommodate Mr. Prince and defendants, and that he neither asked for nor received payment from anyone.

The easement involved here provided that it was “for the purpose of placing and maintaining underground,” certain named utilities. It further provided:

As conditions precedent to the continued existence of the easement granted herein, IT IS EXPRESSLY UNDERSTOOD that:
(a) No manhole or other contrivance or structure appearing on or above the surface of the ground shall be placed upon the said easement.
(b) The party in whose favor said easement exists or for whose use said easement is granted at their own cost and expense shall repair and replace on the easement all property, shrubs, fences, trees, flowers, plants and grass which may be damaged as a result of the exercise of the rights created by said easement.
(c) The easement hereby granted shall be null and void and of no further effect should an attempt be made at any time to install or use the utilities installed for more than a single homestead erected upon the property described herein as Parcel No. 2, or should an attempt be made at any time to extend the said facilities to provide for premises other than that on said Parcel No. 2. (Emphasis supplied.)

In the summer of 1957, subsequent to the granting of the easement involved in this suit, defendants used it for the installation of utilities. Plaintiffs inspected the property and found trees and shrubbery knocked down; a clay tile pipe extending above the surface of the ground; piles of raw clay were on the ground; and no attempt had been made to restore the surface to anything like its former condition. Plaintiffs requested that defendants restore the surface and remove the tile pipe. Defendants did nothing as a result of this request until after they installed a swimming pool on their lot three years later.

In the spring of 1960, at the time of the installation of the swimming pool, the easement was used by defendants as a driveway for trucks and excavating machinery.

Later in 1960, defendants installed three large catch basins, covered with concrete and steel manhole covers, on the easement. One of the manholes protruded as much as a foot above the surface. After plaintiff, Ralph Horween, observed the catch basins and manholes, he talked with defendant, Dr. Dubner, and told him that they were contrary to the terms of the easement and would have to be removed. They were not removed, and this suit was filed on August 26,1960.

Plaintiffs’ complaint sought a declaratory judgment declaring the easement null and void and terminated by its own terms because of the violations by defendants of the express conditions precedent to the continued existence of the easement. The complaint also sought an injunction requiring the removal by defendants of certain sewer pipe and other contrivances from the easement and repair and restoration of the easement property. Defendants filed a counterclaim for damages alleging that plaintiffs, at the time of the sale, made false and fraudulent representations with regard to the availability of utilities on Private Road, the street adjacent to the property which plaintiffs sold to defendants. Defendants’ counterclaim also alleged that plaintiffs brought this suit as part of a course of action, the purpose of which was to compel defendants to sell their property to plaintiffs at a price far below what they had paid.

The case was referred to a Master. A Revised Master’s Report was approved by the trial court which ordered all exceptions to the Report overruled and further ordered that defendants cut the three catch basins, cleanouts and manholes to a level one foot below the existing top level of said catch basins; that defendants repair and replace on the easement all property, shrubs, trees . . . damaged by either of them or by others acting at their direction . . . ; that defendants pay the Master’s fees in the amount of Five Hundred Dollars ($500.00), that the counterclaim of defendants be dismissed with prejudice; and that plaintiffs’ request for attorneys’ fees be denied.

Plaintiffs’ theory of the case is that plaintiffs granted to defendants, as a gift, an easement; that defendants already had other easements for the same purposes; that the continued existence of the easement was expressly conditioned upon the observance of certain conditions precedent, among which was the express condition that “No manhole or other contrivance or structure appearing on or above the surface of the ground shall be placed upon the said easement”; that defendants wilfully violated these express conditions precedent over a long period of time; that the Court erred in failing to enter an order declaring the easement null and void and terminated by its own terms as requested in plaintiffs’ exceptions to the Revised Master’s Report; that defendants’ aforesaid allegations of fraud and misrepresentation together with other allegations in defendants’ answer and counterclaim were untrue and made without reasonable cause and not in good faith, within the meaning of Ill Rev Stats (1963) c 110, sec 41; and that the court erred in denying plaintiffs’ request for attorneys’ fees.

Defendants’ theory of the case is in substance, that the grant of easement prohibits the appearance of structures on or above the surface of the ground (emphasis supplied) ; that the defendants had a secondary easement to dig up the easement strip in order to put the utilities underground; that they properly repaired all damage resulting from this work; that even if defendants had violated the easement prohibiting manholes on or above the ground surface and requiring repairs, the terms of the easement, properly construed, do not provide for a forfeiture for such violations; that even if there were violations and even if the easement provided for a forfeiture under the circumstances of this case and under the rule that equity abhors forfeitures; and that the Chancellor utilized sound discretion in denying plaintiffs’ request for attorneys’ fees under section 41.

We agree with plaintiffs that an express condition precedent should be construed in accord with the ordinary meaning of the words used, and in light of the surrounding circumstances. There are, however, valid reasons why the provisions of this easement should not be enforced.

At the outset we disagree with defendants’ contention that they have not violated the prohibition against manholes in that the manholes do not appear on or above the surface of the ground. An examination of plaintiffs’ exhibits shows that the manhole covers and catch basins do appear on or above the surface of the ground. We find, however, that the Chancellor properly declined to declare a forfeiture for the violation of the easement agreement.

First of all, the terms of the easement do not provide for a forfeiture of the easement if any violations take place. In construing the agreement, we find that subparagraph (c) specifically provides that the easement is null and void if it is used to serve another lot. The “null and void” provision does not appear in subparagraphs (a) and (b). It is only reasonable to conclude that only a subparagraph (c) violation renders the easement null and void.

Secondly, equity abhors forfeitures. The rule has long been settled in Illinois that while a court of equity may in a proper case enforce specific performance of a covenant, it will generally not lend its aid to enforce a forfeiture because of breach of a condition subsequent. Patterson v. Vermilion Academy, 312 Ill 386, 144 NE 9 (1924). It is true as plaintiffs contend that plaintiffs’ rights under the easement cannot be protected by a recovery of damages in that the violation of the easement agreement is a continuing one. Plaintiffs do, however, have a right to have any excessive violation of the easement agreement corrected by an injunction. We find that the violation, as it presently exists, is not so excessive that it should bring about a forfeiture of defendants’ rights under the easement agreement. The Chancellor properly corrected an excessive abuse of the easement provisions by having the catch basins cut down one foot. We feel this brought about an equitable result. To permit a forfeiture of the easement would work an extreme hardship on defendants. Whenever a great wrong or injustice results from a forfeiture, courts of equity will properly prevent a forfeiture.

Finally, we take judicial notice that the Village of Winnetka requires catch basins. The parties must have contemplated that the easement agreement comply with the laws of the Village of Winnetka. This court will not declare a forfeiture against a party who attempts compliance with the law.

Plaintiffs, in their complaint, also alleged that defendants had damaged the easement strip by digging up various shrubs, fences, trees and grass. To properly utilize the easement granted to them, defendants, by necessity, had to dig up the easement strip in order to put the utilities underground. The lower court ordered that defendants repair and replace the shrubs, trees, fences, plants and grass which were damaged. Defendants have substantially complied with this Order. Furthermore, natural growth will eventually cover the easement strip.

Plaintiffs’ last contention is that they should be awarded attorneys’ fees under section 41 of the Civil Practice Act. Section 41 states:

Untrue statements. Allegations and denials, made without reasonable cause and not in good faith, and found to be untrue, shall subject the party pleading them to the payment of reasonable expenses, actually incurred by the other party by reason of the untrue pleading, together with a reasonable attorney’s fee, to be summarily taxed by the court at the trial.

It is plaintiffs’ position that the allegations of misrepresentation in defendants’ counterclaim were made without reasonable cause and not in good faith.

The allowance of attorneys’ fees under section 41 is within the exercise of the sound discretion of the trial court. We find that there was a proper exercise of the Chancellor’s sound discretion. The allegations in the counterclaim, that Mrs. Lang, a real estate broker, represented on behalf of plaintiff, that utilities existed on Private Road, were not made in bad faith. Defendants, at the time they filed their counterclaim, had reason to believe that Mrs. Lang was plaintiffs’ real estate broker. They subsequently found out that this was not true and dismissed the counterclaim. Plaintiffs contend that defendants presented no evidence to support the allegations in the counterclaim. Plaintiffs further contend that if there was no evidence of misrepresentation presented by defendants, then defendants had to introduce evidence that their statements were made with reasonable cause and in good faith. We disagree with plaintiffs’ position. The burden of proof was on the plaintiffs to show that the statements were made without reasonable cause and not in good faith. Defendants did not have to present any evidence as to whether or not they acted with reasonable cause and in good faith, until plaintiffs sustained their burden of proof. Plaintiffs had to present sufficient evidence that the allegations in defendants’ pleadings were not only untrue, but that defendants, at the time they made the allegations, knew they were untrue. Year Investments, Inc. v. Joyce, 44 Ill App2d 367, 195 NE2d 21 (1964) (Abst pp 10 and 11 of Opinion).

Furthermore, as the court stated in Dean v. Kirkland, 301 Ill App 495 at 509, 23 NE2d 180 (1939):

It must be assumed that attorneys in filing pleadings, have due regard for their duties and responsibilities as officers of the court. Attorneys in filing pleadings are permitted to exercise a broad discretion, based on honest judgment, from the facts presented to them.

We find that the Master and the Chancellor were justified in finding that defendants acted with reasonable cause and in good faith.

We agree with plaintiffs that the defendants’ cross-appeal is totally without merit. There is no evidence to substantiate the allegations in defendants’ answer and counterclaim. Furthermore, defendants waived their right to object to the findings and conclusions of the Master in that no exceptions to the Master’s Reports were ever filed by defendants. Such a failure to file exceptions constitutes a waiver. 3 Nichols Illinois Civil Practice, § 2944.

For the above reasons, we find that the decree should be and it is affirmed.

Decree affirmed.

BURKE, P. J. and BRYANT, J., concur.


author: JUSTICE BRYANT.

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Theodore Young, Defendant-Appellant.
    Gen. No. 50,422.
    First District, Second Division.
    November 23, 1965.
    Gerald W. Getty, Public Defender of Cook County, of Chicago (John J. Van Zeyl 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 E. James Gildea, Assistant State’s Attorneys, of counsel), for appellee.
   Opinion by

JUSTICE BRYANT.

Not to be published in full.


author: MR. JUSTICE MURPHY

text:
    Paolino Pellico, Plaintiff-Appellant, v. E. L. Ramm Company, a Corporation; Bernice E. Watts, Henry B. Ramm, Kent A. Ramm, and Clarence H. Ramm, Individually and d/b/a Ramm Cartage Company, a Partnership, Defendants-Appellees.
    Gen. No. 49,762.
    First District, First Division.
    January 31, 1966.

      Leo K. Wykell and Fishman and Fishman, of Chicago (Leo K. Wykell and Ronald S. Fishman, of counsel), for appellant.
    Neil K. Quinn and Pretzel, Stouffer, Nolan & Rooney, of Chicago (Joseph B. Lederleitner, of counsel), for appellees.
   MR. JUSTICE MURPHY

delivered the opinion of the court.

This is an appeal by plaintiff in a personal injury action, in which judgment was entered on a verdict for defendants. Plaintiff complains of trial errors and seeks a new trial.

The principal errors asserted are: (1) “The trial court permitted a witness to impeach plaintiff by relating a purported conversation with plaintiff which was conducted through an interpreter, in a language the witness neither spoke nor understood. The allowance of this hearsay testimony was compounded when the court refused to permit the interpreter to testify in rebuttal as to the actual conversation.” (2) Misconduct of the defendants by “interjecting the question of an Industrial Commission hearing, both through testimony and again in argument.” (3) Erroneous instructions.

On May 23, 1960, plaintiff, then 57 years old, was working for the Palumbo Excavating Company as a general laborer, laying sewer pipe. He had come from Sicily to the United States in 1956 and could neither speak nor understand English. Palumbo Excavating Company was engaged in constructing part of the Congress Expressway, and plaintiff was injured when he was struck by the rear end of a truck which was backing up in a construction yard.

Defendant, Bernice Watts, a truck driver working for the Ramm Cartage Company, a partnership, was driving a 2-ton flatbed truck loaded with 350 catch basin blocks weighing approximately 8V2 tons. He arrived at the construction yard about 1:00 p. m. and asked the foreman for someone to assist him. The foreman told the plaintiff to go with the driver and unload the truck next to a pile of pipe.

The truck had to be backed up about 30 feet, and plaintiff told Watts, “Speak no English.” Watts pointed to his intended unloading area. Plaintiff walked to the rear of the truck to hand-signal Watts as the truck was backed up. Watts was using both his rearview mirrors, located on each side of the truck’s cab, to see plaintiff signal and also to watch the area over which he was backing, rough, bumpy dirt and debris.

The principal dispute arises over the location of plaintiff as he directed the truck backwards and if the truck suddenly turned or lurched. There were no eyewitnesses. Plaintiff testified he was on the left side, about four feet to the side and fourteen feet to the rear, and started to walk backwards with the truck, which at first moved slowly, then the truck turned suddenly and quickly lurched backwards, and the left rear of the truck struck him and knocked him down.

Defendant Watts testified that plaintiff was at the right rear corner of the truck, signalling to him through the right rearview mirror, and that he was backing up while “riding” the clutch so that it was only halfway out, his right foot on the gas and his left foot controlling the clutch. Watts stated that as he drove backwards, he went over a small pile of bricks, and the truck jolted slightly. The truck did not lurch or “spurt” before striking plaintiff. Watts said his first indication that plaintiff was injured was when another person yelled at him to move forward, which he did immediately. He left his vehicle, walked to the rear and found plaintiff half sitting and half lying on some pipe.

Plaintiff was removed by police officers Lavery and Christy to the West Suburban Hospital and both testified at the trial. An interpreter was brought to the hospital and Officer Lavery said the interpreter spoke a different dialect, so no statement could be taken from plaintiff. Officer Christy did not know the interpreter nor whether he spoke the same dialect, nor if he could understand plaintiff. Over objection, Officer Christy was permitted to testify, “The interpreter said that the injured man had told him that he was on the west side of the truck, directing the truck back, and that he was afraid the truck driver was going to hit some tile or concrete on the other side. He ran on the other side of the truck, or attempted to run on the other side of the truck, to be sure he was clear, and was caught and pinned back.”

During the rebuttal phase of the trial, the trial court refused to permit interpreter DeFranciseo, referred to by Officer Christy, to testify concerning the alleged statement made by plaintiff at the hospital. Plaintiff then made an offer of proof that the interpreter would have testified that “there was only one police officer present in the hospital when he spoke to Mr. Pellico about the manner in which the accident occurred. Mr. Pellico told him, in the Italian language, that the truck jumped at him. He was behind the truck and that the truck hit him and injured him. That was given to him by Mr. Pellico. That was all the information given by the witness DeFrancisco to the Police Department.”

Considered first is the contention of plaintiff that the testimony of Officer Christy as to what the interpreter said at the hospital was hearsay, and only the interpreter may be called to testify as to what was said by plaintiff.

Defendants contend, “It was not necessary to call the interpreter to prove admissions of a party or to impeach the testimony of the plaintiff’s witness who was present when the admissions were made. The testimony complained of was not sought to be stricken nor was there a request to have the jury instructed to disregard it, so as to preserve the point for review.”

We have examined the authorities of defendants, and we are not persuaded they apply here. The rule to be used here is set forth in Wigmore on Evidence, § 812 (3rd Ed 1940):

“ (1) By the Hearsay rule, every witness must be subject to the opportunity of cross-examination; an interpreter is a witness to the other witness’ words; hence, the interpreter’s report of the other witness’ testimony cannot be used at another trial without calling or accounting for the interpreter (post, §1810).
“Whether a party is entitled to the interpretation of the testimony against him involves also the right of cross-examination ....
“(3) A person conversing with a third person through an interpreter is not qualified to testify to the other person’s statements, because he knows them only through the hearsay of the interpreter. Ordinarily, therefore, the third person’s words cannot be proved by anyone except the interpreter himself

See, also, ILP, Evidence § 132; Szczech v. Chicago City R. Co., 157 Ill App 150 (1910).

However, defendants contend that, considered as admissions of the plaintiff, the testimony of the interpreter was not necessary because the plaintiff is a party. Cited in support is Wigmore on Evidence, § 668 (8), where it is said:

“Conversations through an Interpreter. When A speaks with B through an interpreter because of A’s ignorance of B’s language, A cannot of his own hearing know what B said; he depends on the interpreter’s report. Here no exception has been recognized to the general rule (though it might well have been). The witness A is allowed to testify only to what he heard from the interpreter, and the interpreter must be called to testify to what B said to him.
“If, however, B is a party, whose admissions can be used, then the interpreter is to be regarded as B’s agent, and the agent’s statements on B’s behalf (being in a language understood by the witness) are usable as B’s admissions.”

We agree with plaintiff that this, rule should not be applied here, because the record indicates that the police officers asked DeFrancisco to interpret for them, and plaintiff did not participate in the selection of the interpreter. Therefore, the interpreter cannot be considered as plaintiff’s agent. As said in People v. Chin Sing, 242 NY 419, 152 NE 248 (1926):

“Of course the evidence was hearsay . . . and, with two possible exceptions the only cases cited by the people to sustain the admission of such evidence are cases where the interpreter had been selected by common consent of the parties endeavoring to converse or by the party against whom the statements of the interpreter were offered in evidence, and in such cases it was naturally held that the party against whom the statements were offered in evidence had made the interpreter his agent, and therefore within the ordinary rules of principal and agent was bound by his statements which could be proved by a third party. As has been pointed out, that is not at all this case.”

Based upon the foregoing guidelines, we hold that it was error to overrule plaintiff’s objection to this part of Officer Christy’s testimony. Defendants’ authorities do not support their assertion that in order to preserve the point for review, after having objected to the testimony, it was necessary for plaintiff to move to strike the answer or have the jury instructed to disregard it.

We further agree with plaintiff that it was error for the trial court to sustain defendants’ objection to the testimony of the interpreter on rebuttal. Plaintiff had a right to rebut, explain or contradict the affirmative evidence offered by Officer Christy to show plaintiff’s lack of due care. The rule is stated in Loftus v. Loftus, 134 Ill App 360, 362 (1907):

“Permitting a plaintiff to introduce evidence of an affirmative matter in rebuttal, where such evidence might properly have been offered in chief, is largely discretionary with the trial court, but where a defendant introduces evidence of an affirmative matter in defense or justification, the plaintiff, as a matter of right, is entitled to introduce evidence in rebuttal as to such affirmative matter.”

See, also, 3A Nichols Illinois Civil Practice 84, Rebuttal § 3296.

We consider the foregoing errors to be sufficiently substantial and prejudicial to plaintiff’s case to warrant a new trial. It is unnecessary to examine at length the other areas of error asserted by plaintiff. Undoubtedly they will not reoccur on retrial. Direct or indirect references to “Industrial Commission” proceedings during the trial of third party actions are improper and should be excluded (Bryntesen v. Carroll Const. Co., 27 Ill2d 566, 190 NE2d 315 (1963), which affirmed 36 Ill App2d 167, 184 NE2d 129) and may be prejudicial error. IPI instructions on issues, burden of proof, credibility of witnesses and damages, shall be used in accordance with Supreme Court Rule 25-1.

For the reasons given, the judgment is reversed and the cause remanded for a new trial in accordance with the views expressed herein.

Reversed and remanded.

KLUCZYNSKI, P. J. and BURMAN, J., concur.


author: MR. PRESIDING JUSTICE KLUCZYNSKI

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Joseph P. Viti, Defendant-Appellant.
    Gen. No. 49,957.
    First District, First Division.
    January 31, 1966.

      Muller Davis, of Chicago (Raymond, Mayer, Jenner & Block, of counsel), for appellant.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Edward J. Gildea, Assistant State’s Attorneys, of counsel), for appellee.
   MR. PRESIDING JUSTICE KLUCZYNSKI

delivered the opinion of the court.

Defendant was found guilty by a jury of unlawful possession of a narcotic drug. He seeks reversal on the grounds that (1) the indictment did not state the time and place of the alleged offense as definitely as could be done in accordance with the requirements of Ill Rev Stats 1963, c 38 § 111-3 (then in effect and applicable), and (2) the state failed to prove beyond a reasonable doubt that he had possession of a narcotic drug.

Defendant’s first contention may be disposed of summarily. The Supreme Court has held that where the indictment, as in the instant case, sets forth the date and county when and where the alleged offense occurred, such indictment is valid and sufficient to support a judgment of guilty where the indictment has not been attacked until after conviction. People v. Blanchett, 33 Ill2d 527, 212 NE2d 97 (1965).

In taking up the second contention, it becomes necessary to review the evidence. The case for the prosecution consisted of the testimony of police officers Clement Vaia and Louis Bassi. Vaia testified that on the day in question, at about 11 p. m., he, together with officer Bassi, his partner, was in charge of traffic control at the County Hospital directly across the street from the University Restaurant. He observed defendant enter the restaurant and walk to the counter. He and Bassi went into the restaurant to “keep an eye on this guy.” After a short time, defendant left the counter and went into the washroom. Vaia followed defendant and walked up to the washbasin. He saw defendant in a partitioned area sitting on the floor next to the toilet bowl and then heard him flush the toilet. Vaia ran into the toilet area and observed a white card containing white powder on the left side of the toilet seat and a spoon at defendant’s left foot. When he asked defendant “What are you doing here?” defendant answered “What does it look like.” The officer picked up the card and white powder saying “Whose is this?” Defendant answered “It is mine.” Officer Bassi came into the washroom in the meantime and, after helping defendant to his feet, they took him to the front part of the restaurant. Bassi searched him and found on his person a bottle of brown liquid and an eyedropper. Vaia returned to the washroom to make a further search and then came back to join defendant and Bassi. Defendant, after identifying himself, asked for a “pass” because his wife was in the hospital and he wanted to visit her.

Bassi testified he followed Vaia into the washroom and found him holding the white card with white powder and heard the flushing of the toilet and the conversation between his partner and the defendant. He saw defendant sitting on the floor and after being requested to stand up he was taken into the restaurant proper. Bassi searched and-took from defendant’s person the bottle of brown liquid and an eyedropper. Defendant asked for a “pass” because of his sick wife in the hospital. The white powder was found to be heroin and the brown liquid to be paregoric.

Defendant testified in his own behalf. He said he had tried to visit his wife in the hospital and after several attempts was told the “whole ward was asleep.” It was quite late, and he went back to the restaurant, had a cup of coffee at the counter and then went into the washroom. He entered the toilet enclosure, closed the door and “started to use the washroom.” Officer Vaia came in, looked over the partition and said “What are you doing here?” Defendant answered “It’s obvious what I am doing here. I’m using the washroom, what does it look like I’m doing?” Vaia accused him of being drunk and he denied it. The officer then took him to the front part of the restaurant where his partner Bassi was. He was questioned and then Vaia returned to the washroom. When Vaia came back he had “some white substance” on a card. Defendant denied that it belonged to him. He was then placed under arrest. He denied at the trial that he ever possessed the heroin.

Defendant insists that the testimony does not prove his possession of heroin beyond a reasonable doubt. In People v. Pigrenet, 26 Ill2d 224, 186 NE2d 306 (1962), the court said (p 227):

[I] t is established in narcotics cases that although the element of knowledge is seldom susceptible of direct proof it may be proved by evidence of acts, declarations or conduct of the accused from which the inference may be fairly drawn that he knew of the existence of the narcotics at the place where they were found. (People v. Mack, 12 Ill2d 151.) Whether the defendant’s testimony denying his possession of narcotics is believed depends upon the credibility of the witnesses and the weight to be given their testimony, which are both matters for the jury, or the trial court where, as here, a jury has been waived. (People v. Richardson, 21 Ill2d 435; People v. Embry, 20 Ill2d 331.) The requirement that defendant’s guilt be proved beyond a reasonable doubt does not mean that the court may disregard the inferences flowing from the evidence before it. People v. Nettles, 23 Ill2d 306.

In People v. Richardson, 21 Ill2d 435, 172 NE2d 801 (1961) two police officers cruising in their vehicle observed defendant and a companion near an alley. The officers drove around the block and into the alley. One alighted and overheard defendant inquire of his companion as to who the occupants of the car might be and when told they were police officers, the officer saw him make a motion which suggested to the officer that defendant was throwing something to the ground. The officer motioned to his partner to come nearer and retrieve the object that apparently had been thrown by the defendant. It was recovered a few feet from where defendant was standing and found to be a cigarette package with two small envelopes containing heroin. Defendant denied he had thrown away the package or had possessed the narcotics. The Supreme Court, in affirming the conviction, said on p 438:

[W]e cannot say as a matter of law that the evidence here is insufficient to support the conviction of the defendant. There is nothing in the record that reflects unfavorably upon the credibility of the two officers who testified. If the jury believed their testimony, there is no room for a reasonable doubt that the defendant is guilty.

We believe that statement may well apply to the facts and circumstances in the instant case. The evidence of defendant’s acts, conduct, and declarations as related by the officers, and accepted by the jury, are such that the inference may fairly be drawn that he knew of and possessed the narcotics at the time and place in question. For these reasons the conviction is affirmed.

Affirmed.

MURPHY and BURMAN, JJ„ concur.


text:
    People of the State of Illinois, ex rel. Frank M. Bryant, et al., Relators-Appellants, v. Elizabeth Williams, Defendant-Appellee.
    Gen. No. 50,504.
    First District, First Division.
    January 31, 1966.
    Washington, Durham, Kennon, Bryant and Hunter, of Chicago (Clarence Bryant, of counsel), for relators-appellants.
    Pease & Ford and Stansell, Rahn & Fleming, of Chicago (Kenart M. Rahn, of counsel), for appellee.
   MR. JUSTICE MURPHY

delivered the opinion of the court.

This is a habeas corpus proceeding for the custody of a minor child, commenced in the Circuit Court of Cook County. The determinative question is whether this court has jurisdiction to review the order of the circuit court on appeal.

Prior to the adoption of the new Judicial Article (Article VI, Constitution of Illinois, effective January 1, 1964), the appellate court reviewed habeas corpus proceedings for the custody of a minor child on appeal from the trial court. In ILP, Habeas Corpus, § 41, it is said:

“A final order in habeas corpus proceedings for the custody of a child is subject to review. The appellate Court may review the proceedings on an appeal from the Circuit Court, but, in accordance with the general rule that a direct appeal lies to the Supreme Court where a substantial constitutional question is involved, as discussed in ILP Courts § 161, a direct appeal to the Supreme Court from the Circuit Court may be taken in a habeas corpus proceeding pertaining to the custody of a child where a constitutional question is involved.”

Section 5 of Article VI, now effective, provides:

“The Supreme Court may exercise original jurisdiction in cases relating to . . . habeas corpus. . . .
“Appeals from the final judgments of circuit courts shall lie directly to the Supreme Court as a matter of right only . . . (c) in cases of habeas corpus. . . .”

Supreme Court Rule 28-1 provides:

“ (A) Appeals from the final judgments of circuit courts shall be taken directly to the Supreme Court: ... (c) in cases of habeas corpus, . . . .”

Although the purpose of the new Judicial Article seems clearly to have been to relieve the Supreme Court “of the bulk of its mandatory appellate jurisdiction and to establish instead a basic pattern of discretionary review of determinations of the Appellate Court” (First Nat. Bank & Trust Co. v. Evanston, 30 Ill2d 479, 481, 197 NE2d 705 (1964)), the foregoing excerpts from the new Judicial Article and the Supreme Court Rules indicate that jurisdiction in all habeas corpus proceedings, original and on appeal, has been withheld from this court without exception.

For the reasons given, and pursuant to Supreme Court Rule 47, it is ordered that this appeal be transferred to the Supreme Court of Illinois.

Appeal transferred to the Illinois Supreme Court.

KLUCZYNSKI, P. J. and BURMAN, J., concur.


text:
    City of Chicago, a Municipal Corporation, Petitioner-Appellant, v. Central Standard Life Insurance Company, et al., Defendants, F. W. Means and Company, Defendant-Appellee.
    Gen. No. 50,639.
    First District, First Division.
    January 31, 1966.
    Rehearing denied February 21, 1966.

      Raymond F. Simon, Corporation Counsel, and Frank S. Righeimer, Special Assistant Corporation Counsel, of Chicago (Frank S. Righeimer and Donald M. Phares, of counsel), for petitioner-appellant.
    Concannon, Dillon, Snook & Morton, of Chicago (William R. Dillon and John B. Dillon, of counsel), for defendant-appellee.
   MR. JUSTICE MURPHY

delivered the opinion of the court.

This is a condemnation proceeding involving one of the parcels of land required for the Southwest Highway, part of the Comprehensive Superhighway System of the City of Chicago. The City appeals from the verdict and judgment because of trial errors and seeks a new trial.

The theory of the City is that “the jury arrived at an erroneous and excessive verdict as to the award for the property taken and for damages to the remainder of defendant’s property because of palpably erroneous rulings by the court and instructions given and refused by the court and because of prejudice induced against petitioner by the remarks and arguments of counsel for defendant and by the remarks of the court to the jury and to counsel for the petitioner and by the court’s rulings. The trial was conducted in such an atmosphere of sympathy for the defendant and prejudice against the City of Chicago that the jury could not possibly bring in a fair verdict.

The property being taken is part of the holding of defendant F. W. Means and Company. The business of Means and Company, operated under the name of Chicago Towel Company, is renting out and servicing (washing and cleaning) towels, uniforms and dust control materials.

The holding of Means is improved with a complex of seven buildings and subsidiary structures, lying on the west side of Wabash Avenue between East 25th Street and East 26th Street on the South Side of Chicago. The east boundary is 350 feet on Wabash Avenue, commencing 50 feet south of East 25th Street and extending south to the middle of the block. The west boundary is 400 feet, commencing at East 25th Street and extending south along the east line of a public alley between Wabash and State Street. There is 50 feet of frontage on East 25th Street, east and adjoining the public alley.

The entire land area is 65,745 square feet. The building floor space is 77,027 square feet, consisting of 23,520 square feet used for office space, 43,580 square feet for garage and truck repair space, and 9,927 square feet for loft and storage space. The area is zoned M-l-3, restricted manufacturing use, permitting processing uses, light manufacturing and automobile repair work.

In 1964, F. W. Means and Company was using the Wabash Avenue premises for (1) its general administrative offices, and (2) its “fleet operations” — servicing and repairing the 1,300 trucks it used in its operations throughout the City of Chicago and the country. Its laundry plants were in other locations in Chicago, and in Indiana, Illinois, Kentucky, Ohio and Wisconsin. On April 3, 1964, Means and Company moved its administrative and personnel offices to 35 East Wacker Drive in Chicago, where it occupied 20,000 square feet. The land being taken will include all of buildings Nos. 1 and 4, one-half of building No. 2, and approximately 400 square feet of the rear of building No. 3. In sum, approximately one-third of the office space and one-third of the garage space will be taken.

In 1964, at the time the petition to condemn was filed, the Means holding at 25th Street and Wabash Avenue was in the midst of a system of city streets which gave access to all parts of the city, with main arteries to the Loop such as State Street, Wabash Avenue, Michigan Avenue, Indiana Avenue and South Parkway.

On the property acquired north of 25th Street, there is to be built part of the connecting link between the Southwest Expressway and Lake Shore Drive, primarily an east and west road at this point and depressed about 20 feet below present level. The Southwest Expressway will extend from Lake Shore Drive to LaGrange Road and a connection with Route 66, and connects with all other major city expressways.

At Wabash Avenue, north of the Means holding, there will be no bridge or viaduct over the depressed highway. Bridges will cross over the expressway at South State Street and at Michigan Avenue, one block west and east respectively. Part of the acquired Means holding will be used in the relocation of 25th Street, so as to provide an east service drive or road on the south side of the expressway at the grade level of the present East 25th Street. It will not be possible to go directly north on Wabash Avenue across the Southwest Expressway from any part of the remainder of the Means holding. After the completion of the expressway, a circuitous route will be required for any north traffic to and from the Means premises.

The witnesses for the City included an architect and engineer and two valuation witnesses, Richard J. Leyden and William Kaplan. The witnesses for the defendant included an engineer and a contractor and valuation witnesses, Hoyt Thompson and Clifford Zoll.

All of the valuation witnesses testified that prior to the taking by the City, the highest and best use of defendant’s property was the use to which it was being put — namely, the principal offices of a service company with a large fleet operation, in which its administrative offices could be housed and in which its major overhaul maintenance on its vehicles could be performed. The fair cash market value of the defendant’s entire property for such use and the value of the part taken was in the opinion of the valuation witnesses as follows:

For City Value of Whole Value of Part Taken

Richard J. Leyden $825,000 $88,300

William Kaplan 327,500 83,900

For Defendant

Hoyt Thompson $391,500 $100,600

Clifford Zoll 380,000 102,000

The jury awarded a verdict of $90,000 for the part taken.

On the issue of damages to the remainder, the valuation witnesses testified as follows:

For City Damages to Remainder

Richard Leyden $32,700

William Kaplan 32,700

For Defendant

Hoyt Thompson $101,900

Clifford Zoll 128,000

The jury awarded a verdict of $65,000 for damages to defendant’s remaining property.

Initially, the City contends that “the verdict of the jury was against the manifest weight of the evidence.” In support of this contention, the City argues, “The jury awarded the defendant a total of $155,000 for part taken and damage to the remainder, although after the taking the defendant would still retain 302 feet of its 350 feet frontage on S. Wabash Avenue, 48,285 square feet of the total amount of 65,745 square feet of land in the total holding, and 57,283 square feet of building floor space out of an original building floor space of 77,027 square feet and although every part of the remainder would have direct access to S. Wabash Avenue and E. 25th Street, just as it had before the taking and it would be on the comer of Wabash and relocated E. 25th Street (the new service drive) whereas, the company’s holding before the taking, commenced 50 feet south of E. 25th Street.”

The City further asserts, “The whole complex was a most unnatural alliance of administrative offices of a large corporation coupled with garage space where 1,300 trucks were constantly being repaired — all separate and apart from the real business of the company which was its laundry plants, scattered over Chicago and adjacent states. Add to this the fact that this old complex of buildings was interconnected by door-size openings between adjoining buildings and by a roofed-in private alley and it becomes apparent that defendant’s valuation of the whole at $380,000 to $391,500, of the part taken at $100,600 to $102,000 and of damages to the remainder at $101,900 and $128,000 was most unrealistic.” The City also asserts, “There was no evidence that defendant’s valuation witnesses had any knowledge of the area in which the Means property was located except their inspection of the area for purposes of testifying. Although they testified to general appraisal experience in other cities and in the Chicago area, they did not testify to a single other appraisal made in the Wabash-25th Street area.”

We think it unnecessary to review at length the qualifications of the valuation witnesses and the elements considered by them in arriving at their valuation opinions. The record shows that the evidence offered by both sides was extensive and sufficient to fully inform the jury on all issues of the case. The jury viewed the premises, and the verdict of $90,000 for the part taken is well within the range of the valuation testimony, being $6,700 in excess of the lowest value testified to for the City and $12,000 less than the highest value testified to for the defendant. We conclude the verdict of the jury as to the value of the property taken was not against the manifest weight of the evidence.

As to damages to the remainder, all witnesses agree that the taking of approximately one-half of building No. 2 (2510-12 S. Wabash) would necessitate the razing of the remainder of that building, since it could not be economically reconstructed. This would leave the north wall of building No. 3 to be rehabilitated. The razing of building No. 2 and the restoration and refacing of the north wall of building No. 3 are admittedly damages to the remainder. There were differences of opinion between the City’s and the defendant’s witnesses in three main areas: (1) the highest and best use after the taking; (2) whether portions of the remaining buildings should be torn down and rebuilt elsewhere or merely shored up; and (3) whether the dead-ending of Wabash was an element of damages to be considered by the jury. Of these three areas, we believe the determinative question is whether the dead-ending of Wabash should have been included in the elements considered by the valuation witnesses and the jury.

On this issue, the City contends that “the trial court erred in allowing the jury, over the objection of the petitioner, to consider as an element of damage to the remainder the alleged impairment of access caused by the closing of Wabash Avenue across the expressway.”

Defendant’s witness Thompson testified that in fixing damages to the remainder, the elements he took into consideration included the closing of Wabash Avenue and the reduction in rental value because of little demand for office space in a single office building in the area. On cross-examination, he said that “the dead-ending of Wabash Avenue as a result of the taking has an effect on the rental value,” and he considered it a disadvantage to the remainder not to be able to go directly north on Wabash Avenue, but stated that he had not broken down the elements of damage and so could not say how much this factor amounted to dollarwise. He said, “I have not broken it down that specifically as to the amount of damage caused by the closing of Wabash Avenue. . . . It is very slight, very slight; not great. ... I did not take it into consideration as much as other factors involved, such as the more limited highest and best use of this property after the taking. ... I already said that the highest and best use, after taking, is as a fleet operation.”

On cross-examination, defendant’s witness Zoll stated he could not allocate damages because of the closing of Wabash Avenue. When asked how much the damage was to the market value of the property on the closing of Wabash Avenue, Zoll stated, “I don’t think I can add anything to the elements I have already testified to,” and later on he said he did not allocate any specific amount to any part of the damages but took all the items of damage together as a whole. When asked how much he took off market value because of the 20-foot depression of the expressway, he stated, “The same answer as to your previous question.”

At the outset, in considering the question of impairment of access as an element of damage to the remainder, we agree with the City that the instant case is not “a cul-de-sac situation,” and cases of that nature are not of determinative value here. The claim of defendant for damages to access, if any, must be grounded upon the premise that it will not be possible to go north uninterruptedly on Wabash Avenue after the improvement is constructed, because there will be no bridge over Wabash at the new expressway, and whether this travel interruption is a material impairment of access different in kind from that suffered by the general public and compensable.

We also agree with the City that the national and local construction of highway systems throughout the United States has increased the importance of “the question of awarding damages to property owners for claimed impairment of access resulting from the construction of such highways.”

The City notes that the most recent Illinois decision involving a claim for compensation for loss of access is Department of Public Works & Bldgs. v. Mabee, 22 Ill 2d 202, 174 NE2d 801 (1961). That was a condemnation case where the State sought to acquire part of a gasoline station area for a highway improvement, which included the construction of an insurmountable median strip in the highway. The defendants claimed that the placing of the median strip materially impaired access to their property differing in kind from that sustained by the general public and to be considered as an element of damages to the remainder. The trial court allowed such evidence to be considered in reaching the value of the property not taken. In reversing, our Supreme Court said (p 205):

“The defendants also argue that their right of access has been damaged and that such damage is. compensable. It is a well-established rule in this State that the right of access to an existing public street or highway is a valuable property right which cannot be taken away or materially impaired without just compensation. . . . This rule has been applied where a public improvement has completely ... or materially . . . destroyed a property owner’s means of access to the whole highway by raising or lowering the grade of the highway. The rule cannot be applied, however, where the property owner’s free and direct access to the lane of traffic abutting on his property has not been taken or impaired. Once on the highway he is in the same position and subject to the same police-power regulations as every other member of the traveling public. . . . The inconvenience of a one-way traffic regulation may be greater in degree as to a person whose premises abut on the highway where such a regulation has been invoked, but this cannot be the basis for damages.
“The trial court erred in instructing the jury that they might consider the reduced value of the defendants’ property caused by the construction of the insurmountable medial divider and in permitting defendants’ witnesses to testify to the reduced value of the property caused by the construction of the divider. The judgment is accordingly reversed and the cause remanded to the county court of Woodford County for a new trial.” (Emphasis supplied.)

See, also, Ryan v. Rosenstone, 20 Ill2d 79, 169 NE2d 360 (1960), another median strip case.

In Hacker v. City of Joliet, 196 Ill App 415 (1915), where the City of Joliet dead-ended Collins Street by elevating railroad tracks, which forced the plaintiff to turn west for a block to cross the tracks and then go back east for a block to return to Collins. In holding that plaintiff’s claim for damages for impairment of access was not compensable, the court said (p 425):

“Collins Street is not turned into a blind court. Appellant still has free access not only to and from the street abutting its property and to the north, but also from that street directly south for foot passengers and directly south for vehicles excepting they must travel about two blocks further than heretofore. The inconvenience suffered by appellant in being compelled to travel this additional distance to reach that part of the city lying south of the improvement is of the same kind and character that is suffered by all people who desire to travel with vehicles in that direction, differing only in degree. . . . though the market value of appellant’s property may have been diminished by the change in Collins Street, no legal cause of action accrued therefrom.”

See, also, Illinois Malleable Iron Co. v. Commissioners of Lincoln Park, 263 Ill 446, 105 NE 336 (1914); and City of East St. Louis v. O’Flynn, 119 Ill 200, 10 NE 395 (1887).

In State Highway Commission v. Central Paving Co., 399 P2d 1019 (1965), it is said (pp 1021, 1022) :

“That impediment consists only of the inconvenience in being forced to travel a longer distance in going to and from the throughway. The inconvenience resulting from travelling a more circuitous route is the same kind of inconvenience the general public suffers when there is a modification of certain traffic regulations on existing streets and highways. . . . Defendants are not entitled to recover compensation for a loss unless they can show that the type of loss is peculiar to those owning land as distinct from the loss suffered by the general public.”

On this issue, defendant contends that material impairment of access is a proper element to be taken into consideration by a jury in computing damage to the remainder of property taken in condemnation or eminent domain proceedings. Authorities cited include Chapter 24, § 11-91-1, Ill Rev Stats 1963, to the effect that “when property is damaged by the vacation or closing of any street or alley, the damage shall be ascertained and paid as provided by law.” Barnard v. City of Chicago, 270 Ill 27, 110 NE 412 (1915), where the court stated (p 30):

“Owners of property bordering upon a street, in addition to the public right of travel which they enjoy in common with all citizens, have certain private rights incidental to their ownership of abutting property. Among these is the right of access to and egress from the property by way of the street, and this right cannot now be taken away or materially impaired without compensation to the extent of the damages suffered.” (Emphasis supplied.)

See, also, Department of Public Works & Bldgs. v. Wolf, 414 Ill 386, 389, 111 NE2d 322 (1953), and Rigney v. City of Chicago, 102 Ill 64 (1882).

Defendant also cites Nichols on Eminent Domain, 3rd Ed, Vol 2, § 6.4442, pp 571, 572.:

“There can be no doubt that the enjoyment of convenient access to the street is a right for interference with which without legal authority an action would lie at common law, and consequently it is a right which the owner enjoys in connection with his property and which gives it additional value, so that the material impairment of such access is a special damage differing in kind from that suffered by the general public. It is a ground for a claim for damages when the constitution or statutes of the state provide compensation when property is damaged for the public use.” (Emphasis supplied.)

Considering all of the foregoing pronouncements, we believe the test to be used here is set forth in Department of Public Works & Bldgs. v. Mabee, 22 Ill2d 202, 174 NE2d 801, and our inquiry on this point should be focused on whether the new highway will “completely ... or materially” impair defendant’s “means of access to the whole highway by raising or lowering the grade of the highway.”

The testimony shows that Wabash Avenue will be dead-ended at 25th Street, immediately north and adjacent to defendant’s holding. The “cut” will be 20 feet deep, and traffic on Wabash will no longer flow directly to or from the city. The service drive (25th Street as relocated) along the northwesterly line of the remaining property leads east to traffic bridges across the highway, which will be available for use in a circuitous fashion for northbound Wabash Avenue traffic.

The authorities cited by the City on the question of impairment of access as an element of damage to the remainder indicate that this element cannot be the basis for damage and is not compensable where the property owner’s free and direct access to the lane of traffic abutting on his property has not been taken or impaired, even though the abutter may be inconvenienced and the value of his land lessened.

However, we are not persuaded that this rule is determinative here. These cited authorities appear to be cases where the “right of access” element was asserted to be the principal element of damage. In the instant case the testimony of defendant’s experts shows that although “impairment of right of access” was considered as an element of damage, it was not considered “as much as other factors involved.”

Thompson testified, “I took into consideration in this damage to the remainder the loss of part of the property which cannot- be economically restored; the cost of demolition of the building (blue hatching); and the cost of the restoration of this building that is left. It will be necessary to reface the brick wall over this 40 foot two-story section; relocate the air-conditioning unit in the corner of the garage somewhere in the adjoining building. It will be necessary to relocate the electric service because it will now be outside of the building. It will be necessary to relocate the large meter in this building; the boiler in the building now adequate to service all of the area because of its size cannot be economically used for just the remaining buildings and therefore will have to be replaced; there is a lot of incidental work, such as plaster patching, etc., due to the change of the line of ducts for air-conditioning, the steam lines and electrical service, the outlets; the closing of Wabash Avenue; the reduction in rental value because of the little demand for office space in a single office building in the area; and that the 4,300 feet is adequate to service the remaining area as a fleet operation; that the Meter Building has to be destroyed because it has no use except to contain air-conditioning units and electrical service which have to be moved; the loss of a portion of private alley space; that the most reasonable and economical manner is to restore the building as told by Mr. Todd; based on my experience his costs are fair and reasonable.”

Zoll testified that in considering the highest and best use of the remainder after taking, the elements he took into consideration included the size and shape of the property, the irregular line of the property, that part of it that would not be usable as improved property, that traffic on Wabash Avenue would no longer flow directly into or from the Loop, that there would be a service drive along the northwesterly line of the remaining property, and the directional flow of traffic thereon would be east, that Wabash Avenue would be closed, that the proposed improvement would be in a cut 20 feet deep, the reduction in size of the property and the reduction of its intensive use would be limited in the geographical service area. He testified that in’ his opinion the highest and best use of the remainder after taking would be a use similar to its use before the taking, except on a restricted basis.

The verdict of $65,000 for damages to defendant’s remaining property was $32,000 in excess of the City’s testimony and $63,000 less than the highest amount of damages testified to by defendant’s witnesses. As to the access element of damage being included in the elements given to the jury for use in its deliberations as to damages to the remainder, the jury was fully informed by the City’s witnesses that they did not consider it an element, and the witnesses for defendant considered it to be slight and not as important as other factors involved. The verdict is within the range of the testimony, and the jury had the benefit of observing the witnesses as they testified and of viewing the premises.

It is our opinion that, considering this entire record, the introduction of evidence and the giving of instructions Nos. 8 and 9 on the element of “right of access” were not prejudicial error here, even though erroneous in the light of Department of Public Works & Bldgs. v. Mabee, 22 Ill2d 202, 174 NE2d 801.

Finally, the City contends that the court committed prejudicial error in numerous rulings, in the giving and refusal of instructions, the refusal to declare a mistrial because of the continued illness of the City’s counsel, and that the City was denied a fair trial by the conduct of the defendant’s counsel, the court’s comments when making rulings and the court’s general failure to restrain defendant’s counsel.

We have examined the record in the light of these contentions and find no abuse of discretion or reversible error. The record demonstrates that this trial was not a model of trial or courtroom amenities. The remarks made in County Board School Trustees of Du Page County v. Boram, 26 Ill2d 167, 186 NE2d 275 (1962), at page 173, are appropriate here:

“It would unduly lengthen this opinion to comment upon each of the great number of alleged erroneous and prejudicial rulings of the trial judge, which defendants say compounded the prejudice engendered by counsel for petitioner. This was a hard fought case with neither counsel giving any quarter. The trial judge was remarkably patient and his actions and rulings do not bear out the charge of prejudice. We are of the opinion that the case was fairly tried and that the verdict was not the result of passion or prejudice.”

For the reasons given, the judgment is affirmed.

Affirmed.

KLUCZYNSKI, P. J. and BURMAN, J., concur.


text:
    Winifred McGill, Plaintiff-Appellant, v. 830 S. Michigan Hotel, Modern Management Co., a Corporation, and K. Golden, Defendants-Appellees.
    Gen. No. 50,673.
    First District, First Division.
    January 31, 1966.

      Winifred McGill, pro se, of Chicago, appellant.
    Goldberg & Levin, of Chicago (Marvin Sacks, of counsel) , for appellees.
   MR. JUSTICE MURPHY

delivered the opinion of the court.

Plaintiff, Winifred McGill, proceeding pro se, seeks to recover statutory damages for violation of her civil rights. She appeals from an order which struck her fourth amended complaint and dismissed her action.

Plaintiff, a hotel guest, bases her action on a series of weekly rent increases which commenced November 7, 1960, and have remained effective to the present time. Plaintiff alleges these rent increases were and continue to he violations of sections 125 and 126 of chapter 38, Ill Rev Stats 1961, and Article 13 of chapter 38, Ill Rev Stats, effective as of January 1,1962.

The original complaint was filed on October 6, 1961, and was answered November 21, 1961. When it came up for pretrial on January 13, 1964, the complaint was ordered to be amended, and four amended complaints have been filed.

In her fourth amended complaint, plaintiff alleges, in summary, that she is a white person, and on September 12, 1960, became a tenant of the defendant, 830 S. Michigan Hotel, and occupied Room 410 at a weekly rental of $21.50; that because she received Negro visitors in her room, the weekly rental for plaintiff’s room was increased to $26 on November 7, 1960, to $28 on December 10, 1960, and to $30 on January 16, 1961, for a total increase of 40% over a 10-week period; and defendants have continued to charge her the highest figure only because of her Negro visitors. Plaintiff further alleges there has been no equal increase in the weekly rentals asked of other guests at 830 S. Michigan Hotel from September 12, 1960, up to the present time; that “the defendants have not redecorated and repaired plaintiff’s room, #410 when and as they have the rooms surrounding room #410”; and that “the defendants have wilfully, maliciously, illegally and unconscionably exploited plaintiff’s desire and necessity to live in the area of the 830 S. Michigan Hotel, and the difficulties which she faces in securing suitable accommodations, because she is a white woman who associates with Negroes, by continuing each week to charge her an excessive and discriminatory rate for her room . . . .”

The complaint also alleges:

“20. Shortly after September 12, 1960, and at various times thereafter, plaintiff, who is white, received Negro visitors at the 830 S. Michigan Hotel.
“21. On various occasions while plaintiff was receiving a Negro visitor at the 830 S. Michigan Hotel, the defendants . . . committed the following acts:
“a. K. Golden untruthfully told plaintiff that guests of the 830 S. Michigan Hotel are not permitted to receive visitors.
“b. K. Golden refused to provide plaintiff with a written notice stating that guests of the 830 S. Michigan Hotel are not permitted to receive visitors.
“c. K. Golden and various agents and/or employees of the 830 S. Michigan Hotel and/or Modern Management Company told plaintiff and her Negro visitor that if she did not ‘dismiss her guest,’ they would call the police and have them arrested for ‘loitering.’ ”

The Illinois Criminal Code in effect on September 12, 1960, contained a “Civil Rights” Act entitled “An Act to protect all citizens in their civil and legal rights and fixing a penalty for violation of the same,” and sections 125 and 126 are pertinent here.

“125. All persons entitled to equal enjoyment of accommodations — Discrimination in price on account of race or color prohibited.] § 1. All persons within the jurisdiction of said State of Illinois shall be entitled to the full and equal enjoyment of the accommodation, advantages, facilities and privileges of inns, restaurants, eating houses, hotels, . . . subject only to the conditions and limitations established by laws and applicable alike to all citizens;
“126. Penalty.] § 2. That any person who shall violate any of the provisions of the foregoing section by denying to any citizen, except for reasons applicable alike to all citizens of every race and color, and regardless of color or race, the full enjoyment of any of the accommodations, advantages, facilities or privileges in said section enumerated, or by aiding or inciting such denial, shall for every such offense, forfeit and pay a sum not less than twenty-five ($25) dollars nor more than five hundred ($500) dollars to the person aggrieved thereby, to be recovered in any court of competent jurisdiction, in the county where said offense was committed; and shall also, for every such offense be deemed guilty of a misdemeanor, and upon conviction thereof, shall be fined not to exceed five hundred dollars ($500), or shall be imprisoned not more than one year, or both.”

The foregoing sections were repealed as of January 1, 1962.

The provisions of Article 13, chapter 38, Illinois Criminal Code, entitled “Violation of Civil Rights,” became effective January 1, 1962, and have continued in effect up to this time.

“13-1. Definitions.] (a) ... A public place of accommodation or amusement includes inns, . . . hotels, . . . and all other places of public accommodation and amusement.
“(b) . . . An operator of a public place of accommodation or amusement is any owner, lessee, proprietor, manager, superintendent, agent, or occupant of the public place of accommodation or amusement, or an employee of any such person or persons.”
“13-2. Elements of the Offense.] A person commits a violation of civil rights when:
“(a) He denies to another the full and equal enjoyment of the facilities and services of any public place of accommodation or amusement because of race, religion, color or national ancestry;....”
“13-3. Sanctions.] . . .
“(b) Suit for Damages. Any operator of a public place of accommodation or amusement who commits a violation of civil rights shall be liable to the person aggrieved thereby for not less than $100 nor more than $1000, to be recovered in an action at law in any court of competent jurisdiction.”

Plaintiff prays for damages of $500 “for each discriminatory, unlawful written statement of rent due on room #410 which they submitted to plaintiff from November 7, 1960 to December 31, 1961, and of $1,000 for each unlawful, discriminatory written statement of rent due on room #410 which they have submitted to plaintiff since January 1, 1962, with the costs being assessed against defendants.”

• Although a motion to dismiss admits all facts well pleaded in the complaint, the indispensable requirement of the complaint is that the allegations state a cause of action. The fourth amended complaint is to be construed most strongly against plaintiff, but she is entitled to the reasonable intendments of the language used. (Field v. Oberwortmann, 14 Ill App2d 218, 220, 144 NE2d 637 (1957).) Under the Civil Practice Act, pleadings are to be liberally construed with a view toward doing substantial justice between the parties, and no pleading is to be deemed bad in substance which shall contain such information as shall reasonably inform the opposite party of the nature of the claim. (Crosby v. Weil, 382 Ill 538, 548, 48 NE2d 386 (1943).) The pleader should allege the ultimate facts to be proved and not allege the evidentiary facts which tend to prove the ultimate facts. (Levinson v. Home Bank & Trust Co., 337 Ill 241, 244, 169 NE 193 (1929).) “There is no clear distinction between statements of ‘evidentiary facts/ ‘ultimate facts/ and ‘conclusions of law/ There is no provision in the Civil Practice Act defining a conclusion, and a precise definition as to what constitutes conelusions of law is impossible.” Nichols, Illinois Civil Practice, Revised Edition, (1961), Vol 2, § 777, p 27.

Therefore, the issue on appeal is whether plaintiff’s fourth amended complaint alleges ultimate facts sufficient to state a cause of action for the violation of plaintiff’s civil rights and sufficient to bring the instant situation within the provisions of sections 125 and 126 and Article 13 of the Illinois Criminal Code.

Defendants contend that “plaintiff has no remedy-under the Illinois Civil Rights Statute for any alleged discriminations against her for reasons other than her own race and color. She cannot prevail in her cause of action under the statute because of defendants’ purported practice of discriminations against Negroes. No relief is provided for discrimination against third parties. The discrimination must be direct and personal and must be because of her own race and color. . . . [Plaintiff’s] fourth amended complaint affirmatively shows that she, a white person, was not discriminated against because of her race or color.”

Defendants also contended that Article 13 of chapter 38 is not applicable to the facts presented by the fourth amended complaint, because the last purported discriminatory rate increase occurred one year prior to the effective date of said statute.

The Illinois authorities on this facet of civil rights are limited. The authorities cited from other states are not sufficiently in point to warrant extended discussion.

As to sections 125 and 126, in Pickett v. Kuchan, 323 Ill 138, 153 NE 667 (1926), where our Supreme Court affirmed a verdict and judgment for damages for refusal to sell plaintiff a ticket of admission to a show given in appellant’s theater, the court said (p 140):

“The right of the State to regulate theaters and all places of public amusement is universally recognized. . . . The legislature undoubtedly had the power to pass the act in question. Whether it acted wisely is a matter for it to determine. The judiciary have nothing to do with the wisdom or policy of legislation.”

And at page 141:

“Its purpose is to regulate, for the promotion of the public good, certain businesses in which the public have an interest, and it is therefore remedial. The remedy for the breach of a remedial statute is an action in case to recover damages for the injuries sustained.”

Defendants assert that “under the law of Illinois, the Civil Rights Act, being penal in its nature and being in derogation of the common law, must be strictly construed in determining its scope and effect even though it is intended as a remedial act.” Cited is Cedar Park Cemetery Ass’n, Inc. v. Cooper, 408 Ill 79, 96 NE2d 482 (1951), where the court said (p 83):

“When a statute is penal in its nature, it cannot be extended by intendment or implication to embrace matters beyond its terms. . . . Where a statute has remedial features and is at the same time in derogation of the common law, it will be strictly construed when determining what persons come within the statute.”

However correct this statement may be, it is equally true that penal laws are not to be construed so strictly as to defeat the obvious intention of the legislature. (People v. Kirkrand, 397 Ill 588, 590, 74 NE2d 813 (1947).) Hence, we believe that the general rules of statutory construction should be applied here. “A statute or ordinance must be construed according to its intent and meaning, and a situation that is within the object, spirit and meaning of the statute is regarded as within the statute, although not within the letter; and a situation that is within the letter is not regarded as within the statute unless also within its object, spirit and reasoning. People ex rel. Barrett v. Thillens, Inc., 400 Ill 224, 79 NE2d 609.” Lincoln Nat. Life Ins. Co. v. McCarthy, 10 Ill2d 489, 494, 140 NE2d 687 (1957).

Both the new and the old “Civil Rights” Acts provide that a person commits a violation of civil rights when he denies to another the full and equal enjoyment of the accommodations, facilities and services of a hotel because of race or color (§ 125), or race, religion, color or national ancestry (Article 13-2 (a)). We believe that the alleged unexplained rent increases following the alleged acts of hotel employees informing “plaintiff and her Negro visitor that if she did not ‘dismiss her guest,’ they would call the police and have them arrested for ‘loitering,’ ” and “untruthfully” telling plaintiff that “guests of the 830 S. Michigan Hotel are not permitted to receive visitors,” would be considered by reasonable men to be acts of discrimination against plaintiff that fall “within the object, spirit and meaning of the statute . . . although not within the letter.” (People ex rel. Barrett v. Thillens, Inc., 400 Ill 224, 79 NE2d 609 (1948).) In our opinion, the race of the plaintiff is not the test of the violation. The determinative question is, were the rent increases and the attempted deprivation of plaintiff of the full and equal enjoyment of her hotel accommodations “because of race,” either plaintiff’s or her Negro visitors? If the acts complained of were, as alleged, “because of race,” they come within the scope of the philosophy of the Illinois “Civil Rights” Acts. Otherwise, the general purpose of the acts would be severely limited.

We hold that the fourth amended complaint alleges a prima facie cause of action for statutory damages under both Acts and, therefore, the complaint should be answered.

For the reasons given, the order striking the fourth amended complaint and dismissing the action is reversed and the cause remanded for further proceedings consistent with the views expressed herein.

Reversed and remanded with directions.

KLUCZYNSKI, P. J. and BURMAN, J., concur.


author: JUSTICE BURMAN..

text:
    W. W. Durham & Co., Inc., an Illinois Corporation, Plaintiff-Appellee, v. Reliance Underground Construction Company, Inc., an Illinois Corporation, f/k/a Di Vito Construction Company, Defendant-Appellant.
    Gen. No. 50,299.
    First District, First Division.
    January 31, 1966.
    Neistein, Richman & Hauslinger, of Chicago (Arthur Abraham, of counsel), for appellant; Ruff and Grotefeld, William S. Grotefeld, John E. Guy and Leroy A. Swanson, of Chicago, for appellee.
   Opinion by

JUSTICE BURMAN..

Not to be published in full.