Austin Congress Corp. v. Mannina

• Decision Date: 14 January 1964
• Docket Number: Gen. No. 49391
• Citation: 196 N.E.2d 33,46 Ill.App.2d 192
• Parties: , 49 Lab.Cas. P 51,042 AUSTIN CONGRESS CORPORATION, an Illinois Corporation, Plaintiff-Appellee, v. Anthony MANNINA et al., Defendants-Appellants.
• Court: United States Appellate Court of Illinois

Page 33

196 N.E.2d 33

46 Ill.App.2d 192, 49 Lab.Cas. P 51,042

AUSTIN CONGRESS CORPORATION, an Illinois Corporation Plaintiff-Appellee, v. Anthony MANNINA et al., Defendants-Appellants.

Gen. No. 49391.

Appellate Court of Illinois, First District, Second Division.

Jan. 14, 1964.

Kirkland, Ellis, Hodson, Chaffetz & Masters, Chicago, Thomas M. Thomas, Frederick

W. Temple, Chicago, William T. Kirby, Chicago, of counsel, for appellants.

David, Fainman, Abrahams & Chapman, Devoe, Shadur, Mikva & Plotkin, Chicago, Dan R. Roin, Milton I. Shadur, Robert Plotkin, William Shlensky, Chicago, of counsel, for appellee.

BRYANT, Justice.

This is an interlocutory appeal from an order of the Circuit Court of Cook County entered on November 4, 1963, decreeing a writ of temporary injunction restraining defendant Anthony Mannina, and others, from (1) picketing at or near the nursing home located at 901 South Austin Boulevard; (2) publicly stating in any manner that plaintiff's nursing home and/or the construction thereof are in violation of any building code and/or that safety is impaired therein; (3) engaging in any other conduct for the purpose of coercing or inducing persons who might otherwise lawfully transact business with plaintiff by becoming patients in said nursing home not to do so; (4) doing any other thing to in any manner injureor interfere with plaintiff, its property or business; (5) combining or conspiring for the purpose or with the effect of doing anything prohibited above; (6) engaging in any other conduct for the purpose of coercing or inducing persons who might otherwise lawfully transact business with plaintiff by becoming patients in said nursing home not to do so, or with the ultimate objective of coercing and forcing plaintiff to abide by defendants' interpretation of the Chicago Building Code rather than the interpretation which has been made by the Building Commissioner of the City of Chicago and applied over a period of many years.

The appellants after acquiescing to the breadth of the injunction in the lower court and again in oral argument before us nevertheless maintain that the injunction is unnecessarily broad. It is true that the appellants have engaged only in picketing and that courts generally are more reticent to enjoin forms of more protected communication. Since this objection was never presented to the chancellor nor preserved in the record we shall disregard the breadth of the injunction and confine our remarks solely to the question of picketing.

Plaintiff, Austin Congress Corporation, secured a building permit on or about July 27, 1962, for the construction of a six story nursing home and received approval of plans calling for pyrobar and plaster partitions. On or about June 26, 1963, inspectors from the Department of Buildings determined that the partitions had been constructed of 5/8 inch sheet rock material affixed to steel studs. Because of this variation from the approved plans, construction was ordered stopped by the Department of Buildings. On June 27, 1963, revised plans were submitted for approval and approved immediately as being in accordance with the provisions of the Chicago Building Code. Specifically, the commissioner of buildings in a letter dated August 21, 1963, found that although the work was not being done in accordance with originally approved plans; the assembly used for interior partitions had been erected in accordance with ASTM Fire Endurance and Hose Stream Test; and this test indicates that the assembly of materials being used has a one hour fire rating in accordance with building code requirements; and this material was installed in accordance with the revised approved plans.

On June 26, 1963, the defendants began picketing the almost completed nursing home carrying placards which read, 'Building Code Violated--Safety Impaired' and 'Walls and Partitions in This Building are Combustible.' The defendants continued their picketing throughout the summer and until the day of the injunction order. The plaintiff made no attempts to restrain the picketing until September 15, 1963, when the complaint was filed. The plaintiff felt that it would be impossible to fill its building now that it had been completed while pickets paraded before the building. It is no secret that the picketing has been fostered and supported by the 'plastering' interests and that this incident is but one in a long standing controversy between proponents of 'dry wall' and proponents of 'real plaster' walls.

The defendants-appellants maintain that the building was constructed of combustible material (material which will ignite when heated to a temperature at or below 1200~ Fahrenheit; Chicago, Ill., Municipal Code § 65-2(a), 1957) and, therefore, is in violation of the Building Code. Section 53-3(a) requires:

'Partitions enclosing corridors required as a means of exit and partitions enclosing bedrooms or bed wards shall be of non-combustible construction providing fire resistance of not less then one hour. * * *' (Chicago, Ill., Municipal Code § 53-3(a), 1949)

They contend that there is an absolute right to picket providing that such picketing is peaceful, truthful, and informational. They point out that the plaintiff-appellee has admitted for the purposes of this appeal that the material is combustible, and, therefore, a violation of the building code.

The plaintiff in its answer denies that 'dry wall' is combustible and has offered and will be required to prove that 'dry wall' does not burst into flames at or before 1200~ Fahrenheit. For the purposes of this appeal, however, plaintiff has taken the position that the combustibility of the 'dry wall' is irrelevant since the injunctive relief was granted solely on the merits of plaintiff's first four counts. (Although on appeal this concedes the issue of combustibility, it does not concede the question of building code violation.)

The record clearly shows that the court adopted the position of the plaintiff and granted the temporary injunction on the merits of plaintiff's counts one through four. The theory of count one is that if defendants continue the picketing complained of or commit other unlawful acts for the same purpose, plaintiff's property, business, reputation and good will will be substantially damaged and numerous persons who would otherwise transact lawful business with plaintiff by becoming patients in said nursing home will not do so, as a direct consequence of which plaintiff will suffer substantial monetary damage and that with continued picketing those damages will be unascertainable and irreparable. Count two alleges that the conduct complained of is malicious and intended by defendants to coerce or induce persons who might otherwise transact lawful business by becoming patients in the nursing home not to do so and that such conduct is the intended result of an unlawful combination and conspiracy. Count three sets up the approval by the building commissioner of the revised construction plans and alleges that such plans have consistently over a period of years been approved as being in accordance with all of the provisions of the Chicago Building Code and that the purpose of the picketing is to coerce and force plaintiff to abide by defendants' interpretation of the Chicago Building Code. Count four alleges that the conduct complained of in Count three is the intended result of an unlawful combination and conspiracy to persuade persons from becoming patients in plaintiff's home and to force compliance with defendants' interpretation of the building code.

Regardless of the merits of granting injunctive relief, the appellants maintain that the writ was prematurely granted and that a simple oven test of the combustibility of 'dry wall' would settle the matter.

The primary purpose of a temporary injunction is to preserve the matters in status quo until the court has had an opportunity to decide the case upon its merits. Hoagland v. Bibb, 12 Ill.App.2d 298, 304, 139 N.E.2d 417; Bowman Shoe Co. v. Bowman, 21 Ill.App.2d 423, 440, 158 N.E.2d 112; 3 Nichols Illinois Civil Practice, Ch. 38, § 2267. The merits of a controversy are usually not brought before the reviewing court by an interlocutory appeal, Shatz v. Paul, 7 Ill.App.2d 223, 234, 129 N.E.2d 348; Hebenstreit v. Consolidated Coal Co., 3 Ill.App.2d 453, 459, 122 N.E.2d 843; Scholz v. Barbee, 344 Ill.App. 630, 638-639, 101 N.E.2d 845; Nestor Johnson Mfg. Co. v. Goldblatt, 371 Ill. 570, 574, 21 N.E.2d 723.

This controversy is not as easily disposed of as appellants would lead us to believe. Presuming that a factual determination of the combustibility of 'dry wall' could be demonstrated in open court, there still remains the question of what is a 'partition.' The building code permits the use of combustible paint, wallpaper and other material for surface decoration and interior trim when affixed to a non-combustible base. Is sheet rock any different from plaster covered with wallpaper?

A determination that there has been a building code violation and that the building commissioner exceeded his authority in permitting a deviation from the originally approved plans must necessarily be entwined with the combustibility question. These are complex questions of law and fact going to the merits of the case and without adequate briefing here. The chancellor properly deferred consideration until hearing on the permanent injunction. We need only determine whether the chancellor properly allowed an injunction based on the first counts of the complaint. From the face of the complaint irreparable damage is alleged and apparent.

Appellants have invited our attention to four cases in opposition to the issuance of the temporary injunction. In the case of Huerbinger Drug Co. v. Topp's of Niles, 28 Ill.App.2d 336, 339, 170 N.E.2d 653, this court in reversing a temporary injunction order emphasized that there was no showing of an emergency because the course of the...