text:
    Chicago Title and Trust Company as Trustee Under Trust No. 44102, Plaintiff-Appellant, v. W. T. Grant Company, Defendant-Appellee.
    (No. 70-254;
    Second District
    — October 27, 1971.

      John Demling, of Glen Ellyn, for appellant.
    Corrigan, Mackay, Quetsch & O’Reilly, of Wheaton, for appellee.
   Mr. JUSTICE GUILD

delivered the opinion of the court:

The defendant tenant, W. T. Grant Company, rented retail store space located in a shopping plaza from plaintiff landlord, Chicago Title and Trust Company, at a monthly rental of $5,833.33. The relevant provisions of the written lease between the parties are these:

“The Landlord shall promptly make all repairs and replacements * # * which may be necessary to maintain the demised premises in a safe, dry and tenantable condition * * *. The Landlord agrees to indemnify and hold the Tenant harmless from and against all loss, damage or injury to the Tenant’s store and to the Tenant’s merchandise, fixtures and other property therein, due to or occasioned by any overflow or leakage or defect of exterior walls or the roof * * * or by any failure on the part of the Landlord to make any of the repairs herein agreed to be made by the Landlord, and also from and against all reasonable expense incurred by the Tenant in connection therewith. Any sums due the Tenant from the Landlord under the provisions of this lease or arising out of Landlord’s failure to comply with or perform any of its terms may be deducted from the rent * *

On February 15, March 8, and March 16, 1965, the tenant allegedly sustained damage to merchandise contained in the store due to roof leaks. Exhibits in the record include a telegram on March 9, 1965, to landlord’s agent reporting serious roof leakage at the Glen Ellyn store, and a letter to Chicago Title and Trust Co. dated May 3, 1965, stating the store manager was being instructed, by carbon copy, to hold fully damaged merchandise for inspection and to sell partially damaged merchandise at marked down prices in order to obtain maximum salvage. After unsuccessful negotiations relating to the merchandise, the tenant withheld rent for July, 1969, the landlord brought suit to collect the amount owing for the month, $5,833.33, and the tenant counter-claimed for property damaged by roof leakage in the amount of $8,844.96.

The trial court entered judgment for the W. T. Grant Company in the sum of $8,844.96 and found the issues against the plaintiff on their suit for the months rent in question. There is an obvious error in this regard as the W. T. Grant Company had withheld rent in the sum of $5,833.33 which would in effect give the W. T. Grant Company a finding of $14,678.29 which counsel for the W. T. Grant Company concedes is incorrect.

At trial without a jury, the landlord’s agent testified he had been upon the roof about 25 to 50 times during the period of the leakage problem, and attributed most of the water coming into the store to open hatchway doors upon the roof which serviced tenant’s equipment and to the instaHation by both parties of tenant’s roof sign above the checkout area where no merchandise was displayed. On one occasion the witness had seen a display table covered with plastic with water dripping about the edge into pans on the floor. He said the roof had leaks in it but very little of the water was entering the store through them.

In this appeal brought by the landlord, a secondary issue raised in oral argument is that judgment for the tenant based on damage to merchandise is against the manifest weight of the evidence as a number of tenants’ employees testified to seeing water dripping through the ceifing tiles onto merchandise displayed below every time there was rain or melting snow, but only the landlord’s agent, a civfl engineer, undertook to state the origin of this water, and he also testified to showing the store manager open hatchway doors upon the roof several times during the problem period which he said the manager claimed were being blown open by the wind.

We agree with landlord’s counsel that the direct evidence or water originaHy entering through roof leaks is minimal and that other explanations have been offered for the repeated circumstances of water dripping through the ceifing below. In entering judgment for the tenant, however, the trial court must necessarily have concluded that leakage or defects in the roof were the source of the damage. There is sufficient evidence in the record to sustain the trial court’s finding of fact, and while the evidence is conflicting, an opposite conclusion is not so clearly apparent that the decision below can be disturbed. Lipschultz v. So-Jess Management Corp. (1967), 89 Ill.App.2d 192,203; 232 N.E.2d 485.

The basic issue in this case is whether the plaintiff is entitled to recover the retaH selling price or the wholesale price of the damaged merchandise. The amount of judgment for the tenant, $8,844.96, is based on the total anticipated retail sale price of all damaged items, such as dresses, coats, drapes, shirts, cosmetics, and Easter eggs, less the total amount realized by W. T. Grant Company from the markdown sale of partiaHy damaged merchandise. Landlord’s counsel vigorously contends this basis is erroneous, claiming damages are measureable by the cost price of the merchandise to W. T. Grant Company plus all attendant reasonable expenses as shipping and handling, less the markdown sale proceeds.

Calculation of the money judgment is based on entries on a markdown form regularly used in the course of Grant’s business with no indication of the cost price. Tenant’s district manager testified that the merchandise was purchased directly from various sources by the Glen Ellyn store, that the local store maintains a filled order record which indicates the retail sale price but not the cost price, and that upon local receipt of merchandise invoices for it are approved and sent to the New York office for payment with a discount usually taken for prompt payment. The local filled order record or invoices covering the damaged merchandise in question had been destroyed about two years before the trial, which commenced July 21, 1970, and the witness had no idea what the New York office did with invoices after paying them nor did he know which of a variety of suppliers might have sold the particular damaged merchandise to the Glen Ellyn store. There was no evidence on the customary percentage or markup over cost to obtain sale price.

In either event obviously the amount received from the marked down sale of the damaged merchandise must be deducted. The plaintiff contends of course that it is entitled to the retail price it would have received from the sale of every item in question. No consideration is given to damage to the merchandise that might be caused by customers of the store, shoplifting, obsolescence, or a mark down on merchandise that the store might be unable to sell at the regular retail price.

Oddly enough there appears to be no case in Illinois directly in point which considers the question of whether or not a tenant in a retail store is entitled to recover the wholesale or the retail price for damages incurred upon his merchandise whether through the landlord’s negligence or under the terms of his lease. There are comparatively few cases in other states determinative of this question.

The tenant here contends that under the terms of the lease that it is indemnified “against all loss, damage or injury” and therefore it should recover for any or all loss of profits that it might have incurred. With this, this court does not agree. Tenant contends that contracts between the parties must be construed as written, and with this we agree. Had the parties intended that ‘loss” included loss of potential profits, the lease should have so stated.

In Whaley v. Crutchfield (1956), 294 S.W.2d 775, the question posed was whether or not a car dealer should recover the retail market value of his car or the wholesale value. The court in holding that the measure of damage was the difference between the wholesale price to the car dealer-plaintiff and the market value after the damage to the vehicle went on to make the foUowing statement:

“Ordinarily, the measure of damages is the retail market value of the property immediately before the damage occurs, and immediately thereafter. [Citation.] But, that rule does not apply where the property involved is part of a stock in trade of a business concern. In Sedgwick on Damages, 9th Edition, Volume 1, § 248a, it is said: ‘When in the ordinary case a value is to be found for a single thing, the value is what that single thing would seU for; which amounts to the retaH value of it. But when a court is dealing with a stock of goods held for sale, or even with a portion of such a stock, the value to be found is its value as a stock or part of a stock of goods, that is, its wholesale value, without the profit of resale which enters into the retail value; for at the time of valuation that profit has not yet been earned, or, to put the matter in another way, the process of distribution, which brings the goods into the hands of the consumer and thus gives them their final increment of value, has not yet taken place.’ ”

In a New York case directly in point, Dubiners Bootery Inc. v. General Outdoor Advertising Co. 200 N.Y.Supp.2d series 757 (1960) it would appear that damage was therein incurred to the stock of the tenant operating a retaH store through the negfigence of the landlord where the water leaked through the roof upon the merchandise, and is most comparable to the instant case. The court said:

“The measure of damages is not the retail selling price but replacement cost and any damages actually sustained by reason of the absence of the articles whffe in the process of replacement.” * * * “White damages are to be compensatory and need not be calculated with mathematical certainty to permit recovery [citation], there was insufficient proof to form a basis of computation for any aHeged loss of profits. Accordingly, the sum provided for in the event of stipulation is the cost price less the salvage received.”

It would appear that in this case the New York court inferred that there might be some loss of profits by reason of the absence of the articles for sale.

In an Idaho case, Skaggs Drug Centers, Inc. v. City of Idaho Falls (1965), 407 P.2d 695 again a case of damage to retaH merchandise in a store by the city who were found to have caused the flooding, the court affirmed the jury verdict for the amount of damages stating that the measure of damage was

“the market value of such stock in trade prior to their destruction, in the absence of any evidence to the contrary, is the price of such goods in the usual markets where they had been purchased, plus delivery costs. The only evidence in the record regarding damages is the cost of the damaged goods and such evidence is uncontroverted. It is both reasonable and just to assume that the fair- value of the merchandise is in fact the same as its cost, [citations]”

In substance, the finding of the court here was that the wholesale cost price to the tenant plus delivery cost was the true measure of damages.

Appellee cites, and relies upon People v. Irrizari (1959), 5 N.Y.2d 142, 182 N.Y.S.2d 361, 156 N.E.2d 69, for the proposition that the retail value of the merchandise is the proper measure of damages. In Irrizari the court was determining the “market value” of the merchandise stolen from Lord and Taylor, Best’s and B. Altman, the determination being important as to whether the defendant was guilty of grand larceny. However, it is to be specifically noted that the court was interpreting section 1305 of the Penal Law, Consol Laws of New York, c.40 which provides “the market value of the thing stolen is deemed its value.” The court goes on to illustrate the case of a thief stealing a railroad ticket, and states that, while the value of the stolen passenger ticket would not be the replacement cost of the service or of the ticket to the railroad but the amount that the thief would have been required to pay had he purchased the ticket. The court concludes:

“In short, market value, as the term is used in section 1305 denotes not the value of the goods in the market in which the owner had purchased them * * * but the value in the market * * « the price at which they probably would have been sold in the regular course of business # * *” or “the amount which the thief would have been required to pay for them had he purchased them, that is their retail value.” (Emphases supplied.)

Thusly this case, which in effect is an interpretation of the provisions of the criminal code of New York, can scarcely be cited for the proposition that a tenant shall recover the retail price of the merchandise damaged, either under an agreement for indemnity or due to the negligence of the landlord.

Counsel for lessee has also cited H. K. Porter Company v. Halperin (1961), 297 F.2d 442, in which the cause of action arose in Illinois and was heard in a federal district court. A rather complex formula for ascertaining damages was used and the federal court cited as authority People v. Irrizari, supra, for the use of the retail price less discount for cash sales. In Porter the district court deducted a percentage allowed for cash payments by the merchant and deducted another percentage for the cost to the merchant in disposing of the goods and after computing salvage value arrived at a figure which it felt was proper. This court refuses to follow the doctrine of the Porter case and feels that the proper measure of damages in a situation such as the instant case is wholesale price to the merchant under the doctrine enunciated in Whaley, Dubiners Bootery and Skaggs Drug Centers, supra.

Inasmuch as the trial court allowed the full retail price for the damaged merchandise less the salvage value rather than using the wholesale value as we have indicated above, we reverse and rmand for a new trial on the issue of damages only.

Reversed and remanded.

ABRAHAMSON and DIXON, JJ., concur.


source: Caselaw Access Project

author: Mr. PRESIDING JUSTICE THOMAS J. MORAN

license: Public Domain

text:
    Edith Stauf, Plaintiff-Appellee, v. City of Rockford et al., Defendant-Appellant.
    (No. 71-59;
    Second District
    — November 15, 1971.

      Canfield, Canfield, Franks, Wylde & Hoad, and John W. Neilson, both of Rockford, for appellant.
    Keegan & Gosdick, of Rockford, for appellee.
   Mr. PRESIDING JUSTICE THOMAS J. MORAN

delivered the opinion of the court:

The plaintiff brought a two count complaint separately charging each defendant with negligence. The jmy found the defendant, Rockford Blacktop Construction Company (hereinafter referred to as Rockford Blacktop) not guilty but found the City of Rockford (hereinafter referred to as City) guilty and assessed damages in the amount of $1,000. From a judgment entered on the verdicts, the plaintiff and defendant City appeal.

Plaintiff contends that the not guilty verdict as to Rockford Blacktop was against the manifest weight of the evidence. The City, in its appeal, claims that the plaintiff failed to prove negligence and that the proximate cause of plaintiffs injuries was not the result of any act on its part.

Rockford Blacktop was engaged by the City to resurface four blocks of State Street which included the pedestrian crosswalk at the intersection of State and Main Streets. There were no barricades or signs prohibiting pedestrian traffic in the crosswalk during the period in question.

Plaintiff, while walking in a southerly direction on the east side of Main Street, and upon the freshly laid blacktop of the crosswalk, had her attention drawn to a truck making a right turn onto State Street. When the truck was about five feet from her, she, believing that she would be struck, began to hurry. This occurred when she was two-thirds of the way across the street. At this point, the newly laid blacktop ended, creating a one and one-half to two-inch drop in the level of the street. She fell and was injured. These facts are not converted.

The following testimony, however, was contradictory. Plaintiff testified that the truck making the turn was large, red in color with white lettering upon it, loaded with road-surfacing material and was a Rockford Blacktop truck. She further testified that it appeared the truck was about to hit her. However, a Rockford Blacktop driver testified that he was sitting in a truck parked at the intersection facing west toward the crosswalk; that he observed the truck which turned tifie corner; that it was not a Rockford Blacktop, but a Mueller-Pinehurst truck. This driver and his foreman testified that their trucks had to back into State Street in order to deposit their load into the blacktop spreader. (The truck in question was not backing up.)

For a jury’s verdict to be held to be against the manifest weight of the evidence (especially when such verdict is founded upon contradictory evidence), an opposite conclusion must be clearly evident. (Rogall v. Kischer (1971), (Ill.App.3d) 273 N.E.2d 681, 686.) We do not find an opposite conclusion clearly evident in this case and therefore the judgment of the trial court as to the defendant Rockford Blacktop is affirmed.

As best we can determine from the City’s briefs, it is attacking, on two grounds, the judgment entered against it. First, it admits that the two-inch drop in the street level existed but claims that it was not neghgent in creating the same because the condition was only temporary and not unreasonably dangerous. Whether the City was gmlty of a negligent act was a question of fact for the jury to determine. See Arvidson v. City of Elmhurst (1957), 11 Ill.2d 601.

Second, the City argues that even if it is gmlty of committing a negligent act, this negligence was not the proximate cause of plaintiff’s fall. The City contends that it only created a condition which made the injury possible but that the act of the truck bearing down upon the plaintiff caused her to hurry and fall. This, it is claimed, was an intervening, efficient cause which broke the causal connection between the City’s wrong and the injury. It is urged that, as a matter of law, the proximate cause of the injury was the truck being driven into the crosswalk.

It is well settled that, although a person may be guilty of committing a negligent act, no liability attaches unless it is proven that the negligent act was the proximate cause of the injury suffered. Most simply stated, this means “the injury must be the natural and probable result of the negligent act or omission and be of such a character as an ordinarily prudent person ought to have foreseen as likely to occur.” Neering v. S.C.R.R. Co. (1943), 383 Ill. 366, 380.

There can be more than one negligent act which creates the proximate cause of injury.

“* “ * While the negligent act must be one of the essential causes producing the injury, it need not be the sole, last or nearest cause. It is sufficient if it concurs with some other cause acting at the same time which, in combination with it, causes the injury.” Bernard v. Elgin, J. & E. Ry. Co. (1962), 34 Ill.App.2d 466, 470. and
“* * * Where injury or damage is caused by the concurrent negligence of two persons and the accident would not have occurred without the negligence of both, the negligence of each is tire proximate cause of the injury or damage.” Naslund v. Watts (1967), 80 Ill.App.2d 464, 470.

The City’s contention is that, without its negligent maintenance of the crosswalk, the plaintiff would still have been injured due to her haste in escaping from the path of the truck. This issue can be resolved only by interpreting and analyzing the evidence adduced at trial, a task reserved for the jury. The question of proximate cause is ordinarily a question for the jury and a reviewing court will not decide this question in cases such as the one at bar. (Ney v. Yellow Cab Co. (1954), 2 Ill.2d 74, 83-84; Bernard v. Elgin, J. & E. Ry. Co., supra at 471.) We will not disturb the jury’s finding of fact and we affirm the judgment against the City.

In summary, the arguments raised by both appellants, i.e., the identity of the truck, the question of the City’s negligent act and the question of proximate cause, are all questions of fact which were resolved by the jury.

Judgments affirmed,

GUILD and SEIDENFELD, JJ., concur.


author: Mr. PRESIDING JUSTICE MORAN

text:
    Rodney L. Knight et al., Plaintiffs-Appellees, v. Kenilworth Insurance Company, Defendant-Appellant.
    (No. 71-82;
    Second District
    — November 15, 1971.

      Klockau, McCarthy, Schubert, Lousberg & Ellison, of Rock Island, for appellant.
    Howard Prestwich, of Freeport, for appellees.
   Mr. PRESIDING JUSTICE MORAN

delivered the opinion of the court:

Defendant appeals from a denial of his motion to vacate a default judgment entered in favor of the plaintiffs, claiming that the refusal of the trial court to set aside such judgment was unjust, unreasonable and oppressive.

Plaintiffs were insured by the defendant whose policy contained an uninsured motorist clause. This clause was the basis of a small claim suit, instituted by the plaintiffs against the defendant on December 10, 1970. Summons was issued, setting forth the return date as January 12, 1971, and served upon the defendant on January 7, 1971. The defendant failed to appear or plead by the return date and on January 19, 1971, a default order was entered, proofs were heard and a judgment in the sum of $920.70 plus costs of $17.16 was entered.

Three days later (January 22, 1971), defendant’s attorney filed a motion supported by affidavit to set aside the default. The affidavit related that at the time the case file was forwarded to defense counsel, he was engaged in trial in Des Moines, Iowa, and that, through inadvertence, he failed to notice the date of appearance. The motion alleged that the defendant had a meritorious defense. Filed on the same date was a motion to dismiss plaintiffs’ complaint based upon certain provisions contained within the policy.

Upon hearing, the trial court denied the motion to vacate its former judgment and this appeal followed. During the pendency of the appeal, plaintiffs filed a motion for attorney fees as provided by statute, Ill. Rev. Stat. 1969, ch. 73, par. 767, and the motion was taken with the case.

Early in the common law of Illinois, it was established that the setting aside of a default judgment within term time (30 days) is generally a discretionary matter for the trial court; however, the exercise of that discretion is subject to review, Scales et al. v. Labar et al. (1869), 51 Ill. 232. During this same period, it was further established that trial courts should be liberal in setting aside default orders within term time when it appears that justice will be promoted. (Mason v. McNamara et al. (1870), 57 Ill. 274, 277.) Prior to 1933, it was necessary that a meritorious defense and good excuse be shown. Today these are not necessary but are factors, as is hardship suffered by the plaintiff, which the court may take into account in resolving the more basic determination of dispensing justice between the parties. Widicus v. Southwestern Elec. Cooperative (I960), 26 Ill.App.2d 102, 108-109.

The reviewing court need not determine, as a matter of law, that the trial court abused its discretion, but only resolve the question of whether justice has been served, Trojan v. Marquette Nat. Bank (1967), 88 Ill.App.2d 428, 438. “What is just and proper must be determined by the facts of each case, not by a hard and fast rule applicable to all situations regardless of the outcome.” (Widicus, supra, 109.) From the facts in this case, we are of the opinion that justice will be accomplished by allowing the defendant his day in court.

With regard to plaintiffs’ request for attorney fees, the motion alleges that, prior to suit being filed, defendant declined to settle plaintiffs’ claim; that on two separate occasions following the trial court’s ruling herein, plaintiffs approached defendant’s counsel to settle the cause, but to no avail, defendant’s counsel stated he was without authority to do so. Based upon these allegations, plaintiffs conclude that defendant’s refusal was vexatious and without reasonable cause. We disagree and the motion is here denied.

We recognize a certain degree of inequity incurred by a plaintiff when a default judgment, occasioned by a defendant, is vacated. How-every, Section 50(5) of the Civil Practice Act (Ill. Rev. Stat. 1969, ch. 110, par. 50(5)) provides for redress by granting the trial court the right to condition the setting aside of any default judgment “upon terms and conditions that shall be reasonable.”

For the reasons stated herein the judgment is reversed, the cause remanded with directions to vacate the judgment entered and to allow the defendant to answer or otherwise plead to the complaint filed herein.

Reversed and remanded with directions.

GUILD and SEIDENFELD, JJ., concur.


author: Mr. PRESIDING JUSTICE THOMAS J. MORAN.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. William Schoeneck, Defendant-Appellant.
    (No. 71-194;
    Second District
    — November 15, 1971.
    Frank Wesolowski Jr. and Robert H. Heise, both of Wheaton, for appellant.
    William V. Hopf, State’s Attorney, of Wheaton, for the People.
   Opinion by

Mr. PRESIDING JUSTICE THOMAS J. MORAN.


author: Mr. JUSTICE GUILD Mr. PRESIDING JUSTICE THOMAS J. MORAN,

text:
    Walter L. Gibbs, Plaintiff-Appellant, v. The North American Company for Life, Accident and Health Insurance, Defendant-Appellee.
    (No. 70-224;
    Second District
    — November 17, 1971.

      T. MORAN, P. J., specially concurring.
    Donald R. Hellyer, of Loves Park, for appellant.
    Keegan & Gosdick, of Rockford, for appellee.
   Mr. JUSTICE GUILD

delivered the opinion of the Court:

The plaintiff insured, Walter L. Gibbs, appeals from a summary judgment for defendant insurer, The North American Company for Life, Accident and Health Insurance. Judgment was entered in the circuit court of the 17th Judicial Circuit, Winnebago County, after defendant filed an affirmative defense alleging plaintiff had stated in an application for group credit accident and health insurance that he had no sickness or injury for which he had consulted or been treated by a physician, that the facts were contrary to plaintiff’s declarations and, if known to defendant, the insurance would not have been issued.

Plaintiff contends that a return postcard which defendant designates an “application” for insurance is merely an authorization to charge premiums to plaintiff, that if it is construed as an application its contents nevertheless should not be considered as it was not attached to the policy or certificate of insurance, that defendant’s promotional literature was misleading and disguised the import of lines on the return postcard which plaintiff simply left blank, and that in any event the policy had become incontestable because it had been in force for a period of two years prior to defendant’s contest.

The matters and allegations hereinafter recited are drawn solely from pleadings and exhibits in the record as no transcript of hearing on the motion for summary judgment has been filed or abstracted.

Plaintiff purchased a 1966 Mercury automobile about September 27, 1966, financing it through Universal C.I.T. Credit Corporation. Shortly afterwards, he received a “Dear Customer” letter from H. C. Watkins, President of the Corporation which congratulated him on getting the car and thanked him for the chance to finance it. The letter stated it was a wise move to have already taken advantage of an extra service, the life protection plan, and it made the customer eligible for a further service— accident and health protection — which would make payments when the customer was laid up under a doctor’s care. The letter concluded on the following persuasive note:

“All you have to do is sign the postage-paid card and drop it in the mail. No red tape at all. The postmark date on the card marks the start of your protection * * *. Sign and mail the card now * *

An advertising piece covering both life and sickness or accident protection which apparently was enclosed and emanated from the defendant insurance company, said in part: “Simple to Set Up. Just sign and mail the enclosed authorization card.”

The business reply card to Universal C.I.T. Corporation is postmarked October 13, 1966. The reverse side is dated October 12, 1966, signed by plaintiff, and indicates his age as 44 years. The text of the card is as follows:

“Yes, Mr. Watkins I accept the opportunity to be included in your Insured Payment Plan and desire the protection as indicated below:
14 Day Elimination Accident and Health Protection * * * $3.08 per month.
I authorize Universal C.I.T. Credit Corporation to add the above charge, as indicated, which includes interest at permissible rate, to my contract and to my monthly payments, and promise to pay said charge as added. I am the person to be insured and certify that I am now in good health; also that I have no sickness nor injmy for which I have consulted or been treated by a physician except (give full particulars):
I acknowledge receipt of a copy of this form with Notice of Proposed Insurance describing coverage.”

The meaning of the last sentence is obscure, because so far as the record discloses, the only copy of the form received by plaintiff may be the same reply postcard he signed and returned by mail to Universal C.I.T. Credit Corporation and the only Notice of Proposed Insurance describing coverage may be the advertising brochure. In due course, plaintiff received a credit insurance certificate indicating the effective date as 10/12/66, and expiration date as 10/10/69, a monthly benefit of $78.30, and a premium of $100.08. The phrase “Disability caused by preexisting conditions is not covered” is overprinted or stamped in large letters diagonally across the face of the certificate.

On March 4, 1968, while the policy was in full force and effect, plaintiff suffered a severe and disabling heart attack. His complaint was filed July 30, 1968, and a default judgment was entered September 11, 1968, for $1,330, costs and attorney’s fees. Judgment was vacated on September 26, 1968, and defendant filed an answer generally denying the allegations of the complaint but not raising an affirmative defense. On that same date, however, defendant’s attorney filed a supplemental affidavit in support of his motion to vacate which stated in part that the company denied plaintiffs claim because in his application for insurance he had represented that he had no sickness or injury for which he had consulted or been treated by a physician, whereas he had been treated for hypertension since 1963.

On April 16, 1970, defendant filed an amended answer denying certain allegations of the complaint and setting out in an affirmative defense plaintiff’s declaration in his application for insurance, and alleging that contrary to the declaration, plaintiff had consulted and been treated for hypertension and high blood pressure on eleven occasions as shown by a medical report attached as an exhibit. The affirmative defense further alleged that had these consultations been known to defendant, the insurance certificate would not have been issued.

The medical report indicates a diagnosis of moderate essential hypertension, E.K.G.’s taken 13 Nov. 63 and 16 April 67 and interpreted as “Within Normal Limits,” and treatment for hypertension. Blood pressure readings are indicated commencing on October 30, 1963, and continuing monthly to March, 1964. They are also recorded for July, August and September of 1964. The last three readings are recorded as June, 1965, February, 1966, and April, 1967, when the physicians services were terminated.

The briefs of the parties discuss at length the effect of misrepresentation in avoiding file policy, the applicable period of incontestability, and the proper manner of contesting a claim. We do not believe these considerations are relevant to the decision here as this case is controlled by Article IX-% of the Insurance Code, Credit Life and Credit Accident and Health Insurance (Ill. Rev. Stat. 1969, ch. 73, pars. 767.51 et seq.) adopted in 1959. The insurance purchased by plaintiff Gibbs is accident and health insurance under a group policy issued to the creditor insuring Gibbs for the term only of the indebtedness (about two years) with the proceeds payable to the creditor. In effect, Gibbs paid the premium to insure the creditor’s account receivable.

Article IX-% adopted in 1959 (Ill. Rev. Stat. 1967, ch. 73, par. 767.51 et seq.) demonstrates a specific legislative concern to promote the public welfare by regulation of a particular form of insurance sold in connection with loan transactions of less than five years duration. In our opinion, it is not to be construed to include also the general and earlier adopted sec. 154 as well as Article XX of the Insurance Code (Ill. Rev. Stat. ch. 73, pars. 766 and 964 et seq.) A notable distinction between the types of health insurance regulated by Article IX-% and Article XX of the Insurance Code is that the proceeds of Article IX-%, Credit Health Insurance, are payable to the creditor whereas the proceeds of Article XX, Blanket Accident and Health Insurance, is payable to the insured, his beneficiaries, or his estate. Ill. Rev. Stat. 1967, ch. 73, par. 979 a (4).

Neither attachment of the application to the group policy or individual certificate, an incontestability period, nor avoidance of the policy for misrepresentation is provided in the statute for Article IX-% type accident and health insurance.

The courts have frequently been called upon to construe alleged misrepresentations of an insured and their effect in avoiding a policy of insurance. After opinions of the Appellate Court differed as to whether a showing of actual deceit on the part of the insured was required (Compare Joseph v. New York Life Ins. Co. (1920), 219 Ill.App. 452 with Tanner v. Prudential Ins. Co. of America (1935), 283 Ill.App. 210), the Illinois Supreme Court held that a material misrepresentation would avoid the policy even though made in good faith. Western and South Life Ins. Co. v. Tomasan (1934), 358 Ill. 496, 502, 193 N.E. 451.

Section 154 of the Insurance Code was subsequently adopted in 1937 as a provision in Article IX “Provisions Applicable to all Companies” apparently to eliminate the rather refined distinctions that had been applied in determining the effect of false warranties and misrepresentations. (See Campbell v. Prudential Ins. Co. of America (1959), 15 Ill.2d 308, 155 N.E.2d 9, citing the above cases. Section 154 of the 1937 Insurance Code provides that no misrepresentation or false warranty made by the insured shall defeat or avoid the policy unless it shall have been stated in the policy or endorsement or rider attached thereto, or in a written application therefor, “of which a copy is attached to or endorsed on the policy, and made a part thereof.” (Ill. Rev. Stat. 1967, ch. 83, par. 766).

In Anderson v. John Hancock Mut. Life Ins. Co. (1942), 316 Ill.App. 338, 45 N.E.2d 39, the Court refused to construe the Code to require attachment of an application of an insured to an industrial life insurance policy (a type of insurance defined in Ill. Rev. Stat. 1967, ch. 73, Art. XX, par. 840) saying at 316 Ill.App. 343:

“Since there is no requirement in the Code or otherwise that applications be attached to policies of this character, we would not be justified in construing the Code to include such a requirement.”

Following the reasoning of that court in refusing to expand the provision of Article XX for industrial type policies, we similarly must decline to expand the provisions of Article IX-% for credit health insurance. There is no provision in Article IX-V2 that misrepresentation in an application for insurance will avoid a claim under a credit health insurance policy. The insurer is entitled, of course, to rely upon the provisions of the policy disclaiming liability where a pre-existing condition causes the disability of the insured, if such be the case. Fraud would also avoid the policy, but certainly the record before us shows nothing even approaching fraud.

Either the insurer or the creditor fashioned the statement printed on the card signed by Walter Gibbs and which was so designed as to put words into his mouth and not alert him to the necessity of providing at least “yes” or “no” answers. Gibbs certainly inserted no untruthful information, and a Vermont court held that three irregular marks on the blank line following a statement that the applicant had received “no medical attention except” did not indicate there were no exceptions but rather that no statement as to exceptions was given. Stanyon v. Security Mut. L. Ins. Co. 91 Vt. 83, 99 A. 417.

More importantly though, the artful question merits close reading in the light most favorable to plaintiff as equivocal expressions in contracts of insurance are to be interpreted against the insurer (Joseph v. Neto York Life Ins. Co. (1923), 308 Ill. 93, 97, 139 N.E. 32 affg. 219 Ill.App. 452), and we believe it logical to apply this rule of construction to other papers used to complete the contract. Plaintiff was not asked whether he was consulting or being treated by a physician at the time the card was signed or for some prior period, nor was he asked whether he had high blood pressure at that time or previously. Rather the printed statement is: “* * * I have no sickness nor injury [emphasis supplied] for which I have consulted or been treated by a physician * * *.” There is no suggestion of injury in the record. Many a layman with high blood pressure, but otherwise functioning and carrying on normal activities might respond generally and in good faith that he was not “sick.” Although plaintiff had earlier been seen by a physician at monthly intervals following a diagnosis of hypertension, this frequency of consultation ended in September, 1964, and thereafter plaintiff saw his physician once a year until 1967. This medical report may well mean his symptoms had abated by September, 1964, and thereafter he was seen yearly, not because he was necessarily “sick” but as a preventive or cautionary measure recognized in annual medical check ups.

As no fraud is attributable to plaintiff, the decision in this cause is reversed and the cause is remanded to the trial court with direction to vacate the summary judgment for defendant and to proceed with trial of this cause to determine whether plaintiff is entitled to recover under the provisions of the insurance policy and certificate of insurance only, without reference to the return postal reply card.

Reversed and remanded.

ABRAHAMSON, J., concurs.

Mr. PRESIDING JUSTICE THOMAS J. MORAN,

specially concurring.

I concur in the decision in this case but differ from the reasoning of the majority opinion.

One of the contentions of the plaintiff is that the “incontestability clause” of the policy barred the defendant from asserting the defense of misrepresentation because it failed to contest the policy within the prescribed period. I would reverse the decision of the trial court on this ground.

Generally, the purpose of an incontestability clause against fraud is to give the insured a short statute of limitations and, conversely, to allow the insurer a period of time to ascertain whether fraud has been practiced upon it and, if found, to test the validity of its policy. (Royal Circle v. Achterrath (1903), 204 Ill. 549, 559.) After the expiration of the period set in the policy, the insurer is estopped from contesting its validity. Powell v. Mutual Life Ins. Co. (1924), 313 Ill. 161, 164-165, Ramsey v. Old Colony Life Ins. Co. (1921), 297 Ill. 592, 595-596.

The statutory act allowing the issuance of the policy here involved does not provide for an incontestability clause, (Ill. Rev. Stat. 1965, ch. 73, pars. 767.51 — 767.65). However, the policy itself states:

“* * * no statement made by any insured * * * shall be used in contesting the validity of the insurance * # * after such insurance has been in force prior to the contest for a period of two years * * * (Emphasis added.)

The question is then whether defendant contested the validity of the policy, on the basis of plaintiff’s alleged misstatements, within two years of the issuance of the policy in October, 1968.

The insurer has the burden of contesting the insurance policy before the running of the incontestability clause. It must either bring an action to cancel the policy or defend one brought to enforce the policy. Powell V. Mutual Life Ins. Co., supra, 168; Monahan v. Metropolitan Life Ins. Co. (1918), 283 Ill. 136, 141.

On September 18, 1988, the defendant filed a motion to vacate the default judgment entered against it. On September 26,1968, a supplemental affidavit was filed in support of the motion. The affidavit contained the following:

“3. The defendant has a meritorious defense to this claim, as the attorney for the plaintiff well knows, because the file shows several items of correspondence in which the plaintiff’s attorney asserted a claim and the company denied it on the basis that the plaintiff, in his application for insurance, represented that he had no sickness or injury for which he had consulted or been treated by a physical (sic) when, as a matter of fact, he had been treated for Hypertension since 1963.”

The court vacated the default judgment and allowed the defendant to answer.

As can be seen from defendant’s affidavit, it had knowledge of the plaintiff’s claim prior to the expiration of the two years. Yet, on the same date (September 12) plaintiff filed its answer consisting of general denials and failed to plead the affirmative defense of fraud. It was not until April 16, 1970, that the defendant, by way of an amended answer, first did so. Until the affirmative defense was pleaded, there was no contest made as to the validity of the policy. (See Link v. Mutual Life Ins. Co. of N.Y. (1924), 234 Ill.App. 250, 259.) By the terms of defendant’s incontestability clause, a contest must be made prior to the two year expiration. Since this was not done, defendant should be estopped from contesting the validity of its policy.

The present situation is distinguishable from that in Joseph v. New York Life Ins. Co. (1923), 308 Ill. 93, 98-99. In that case, defendant defectively pleaded its affirmative defense within the contestability period, and then amended it after the period had run. Here, it is not a question of filing a defective affirmative defense within the contestability period but rather the failure to file any affirmative defense until after the two year period had expired. Notice to the plaintiff, by way of defendant’s affidavit, of the possibility of affirmative defense is insufficient to establish the same. It must be actually pleaded.

Nor is the instant case controlled by Bronson v. Washington Nat. Ins. Co. (1965), 59 Ill.App.2d 253. That case interpreted the statutorily required incontestability clause of Article XX of the Insurance Code, Ill. Rev. Stat. 1963, ch. 73, par. 969a (1) (b). The present case is controlled by Article IX-Vs of that Statute, Ill. Rev. Stat. 1965, ch. 73, par. 767.51 et seq., which does not require an incontestability clause. The wording of the clause inserted by defendant in its policy is fundamentally different from that of the Bronson case.

For these reasons, I believe the case should be reversed on the ground that defendant failed to appropriately contest the validity of the insurance policy within the time set by its own incontestability clause.


author: Mr. JUSTICE GUILD

text:
    Antioch Community High School Teachers’ Association, Plaintiff-Appellant, v. The Board of Education of Antioch Community High School District No. 117, Defendant-Appellee.
    (No. 70-256;
    Second District
    — November 17, 1971.
    Drach, Terrell & Defenbaugh, of Springfield, for appellant.
    Larson & Lumber, Ted C. Larson, and F. James Lumber, all of Antioch, for appellee.
   Mr. JUSTICE GUILD

delivered the opinion of the court:

This appeal arises from judgment of the trial court dismissing with prejudice plaintiff’s complaint for declaratory judgment and other relief pursuant to 111. Rev. Stat. 1969, ch. 110, par. 57.1.

The complaint alleges that a contractual agreement with the defendant Board of Education existed during the 1969-70 school year providing for sick leave to teachers and further providing that “* * * Requests for personal leave will be granted in accordance with the existing sick leave policy * * Allegedly, in March, 1970, a teacher requested personal leave to attend a court hearing in Oklahoma pursuant to court order. The defendant Board of Education advised plaintiff through Charles Lindholm that the teacher’s request for personal leave was denied solely because the Board had been advised that granting personal leave was illegal. The complaint continued that the following week, the defendant Board directed a letter to plaintiff’s Teacher Negotiation Committee through its chairman, Charles Lindholm, which states in part the following:

“. . . The Board directs the Negotiating Committee that personal leave will not be granted in any new agreement on the advice of our legal attorney, Mr. Ted Larson. This opinion is based on the fact that it is not granted under the school code and that it is an illegal expenditure of funds. Mr. Larson talked to the State Superintendent’s Office as of March 18, 1970, and their position is that personal leave is illegal and cannot be granted by the Board.”

The complaint alleged a controversy between the parties in that plaintiff maintains state law does not prohibit contracting for or granting personal leave days to teachers. Plaintiff prayed for a “declaration of rights of the parties that Defendant Board of Education may (emphasis supplied) contract for or grant paid personal leave days to its certificated employees” and for an order requiring that defendant consider requests for personal leave by members of plaintiff Association and not deny them on the ground such leaves are illegal.

Defendant Board of Education responded July 31, 1970, with a motion to dismiss the complaint on the ground there was no actual controversy in that school was not in session and no person was presently requesting personal leave. The motion continued that should the court approve the concept of personal leave, defendant was not obligated to consider such an item in its pending contract with plaintiff, and that the court had no authority to order defendant to consider any item in such negotiations. On August 27, 1971, defendant was given leave to amend its motion by adding the following:

“* * * School Boards must be guided by the School Code, which is statutory and thus to be strictly construed; and that further, said School Code does not provide for personal leave; and further that it is the responsibility of the legislature and not the Courts to expand the School Code.”

In what appears to be a summary action, the trial court on the same day entered the order dismissing plaintiff’s complaint with prejudice. No transcript of hearing has been filed in this Court.

An actual controversy is, of course, essential to the maintenance of a declaratory judgment action (Ill. Rev. Stat. 1969, ch. 110, par. 57), but in our opinion defendant’s reliance on the circumstance that school was not in session and no person was requesting personal leave on the filing date of the motion to dismiss is obviously without merit. The controversy alleged in the complaint and documented in exhibits attached to it is a controversy between the parties in the interpretation of a state statute which affects the interests of members of the plaintiff Association in a continuing manner sufficient to establish a condition of justiciability under the Declaratory Judgment Act. Roberts v. Roberts (1967), 90 Ill.App.2d 184 at 187, 234 N.E.2d 372 states tire following:

“Mere existence of a claim, assertion or challenge to plaintiff’s legal interests, in which the ripening seeds of litigation may be seen and which cast doubt, insecurity, and uncertainty upon plaintiff’s rights or status, damages plaintiff’s pecuniary or material interests and establishes a condition of justiciability.”

We agree with defendant that it would not be appropriate for the trial court, even if it approved the concept, to obligate the defendant Board of Education to consider the item of personal leave in its pending contract negotiations with plaintiff Association, but this is not the relief plaintiff seeks. The contract ultimately arrived at between the parties will be determined by the items raised by either of them and the provisions mutually agreed upon by both of them. Plaintiff seeks only to remove from pending negotiations the doubt cast upon the item of personal leave, however the parties might otherwise feel or agree, by defendant’s assertion of illegality, and similarly to settle defendant’s claim of illegality as a reason invoked to deny rights already agreed upon. An opinion of illegality was held to give rise to a declaratory judgment action in Walton Playboy Clubs, Inc. v. Chicago (1962), 37 Ill.App.2d 425, 185 N.E.2d 719.

Defendant’s concise position is that the School Code provides for sabbatical leave, sick leave, and leave for jury duty (Ill. Rev. Stat. 1969, ch. 122, pars. 24 — 6.1, 24 — 6, and 10 — 20.7), that personal leave is illegal because the legislature did not provide it and its brief addresses itself entirely to this proposition. Whether defendant’s position may ultimately prevail is not the question. La Salle Casualty Co. v. Lobono (1968), 93 Ill.App.2d 114, 236 N.E.2d 405 illuminated the basic distinction between refusal to grant declaratory relief and refusal to entertain the action as against a motion to dismiss, saying at 93 Ill.App.2d 119:

“The trial court has a discretion as to granting declaratory judgment even though the statute would permit a judgment under the facts. (Citations) However, when considering a motion to dismiss the complaint, the court has no exercise of discretion where the complaint states a cause of action. It is only where the plaintiff is entitled to no relief on the facts alleged that the complaint should be dismissed, [citations.]”

See also Greene v. Gust (1960), 26 Ill.App.2d 2,6, 167 N.E.2d 438 and Emcasco Ins. Co. v. Alvarez, (1969), 110 Ill.App.2d 307, 314-315, 249 N.E.2d 190.

We hold plaintiff has stated a cause of action in its complaint and is entitled to a determination of the legality or illegality under the School Code of paid personal leave for its teacher members. The trial court’s judgment dismissing plaintiff’s complaint was error.

Reversed and remanded.

ABRAHAMSON and DIXON, JJ., concur.


author: Mr. JUSTICE CRAVEN Mr. JUSTICE CRAVEN

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Frankie B. Rodgers, Jr., Defendant-Appellant.
    (No. 11447;
    Fourth District
    — November 5, 1971.

      Rehearing denied December 29,1971.

      Morton Zwick, Director of Defender Project, of Chicago, and Prentice H. Marshall, Champaign, (David Stanczak, Daniel Williams, Senior Law Students, of counsel,) for the appellant.
    Lawrence E. Johnson, State’s Attorney, of Urbana, (Kenneth E. Baughman, Assistant State’s Attorney, of counsel,) for the People.
   Mr. JUSTICE CRAVEN

delivered the opinion of the court:

The defendant was found guilty in a bench trial of involuntary manslaughter and unlawful use of weapons. He was granted probation conditioned upon the first 12 months being served in the State Penal Farm in Vandalia. This appeal follows the conviction and judgment of probation.

The defendant asserts that he did not knowingly and understandingly waive his right to a jury trial; that he was not proved guilty of involuntary manslaughter beyond a reasonable doubt; and finally, that the trial court abused its discretion when it conditioned the grant of probation so as to require the defendant to serve one year at the Illinois State Farm.

The defendant was admonished as to his right to a jury trial — the admonishment being in the form of a usual discussion of the right to a trial by jury. The defendant was not informed, however, that should he elect a jury trial, unanimity of the jury would be required and further that an essential ingredient of a trial by jury included a right to a trial before 12 impartial jurors who would be under the direction and supervision of a judge.

In People v. Alexander, 45 Ill.2d 53, 256 N.E.2d 785, the court held that a defendant was adequately admonished and that he knowingly and understandingly waived his right to a trial by jury when the admonition consisted of the trial judge informing him that “you have a right to a jury trial if you so desire.” Such admonition obviously would not include that which the defendant characterizes as an essential ingredient or component of a jury trial — an understanding of which is a necessary condition precedent to a knowing and understanding waiver. We view the decision in Alexander as determinative of this contention.

A consideration of the defendant’s second contention — that the evidence does not establish his guilt of involuntary manslaughter beyond a reasonable doubt — requires a recitation of the essential evidence adduced.

On January 2, 1969 at around 7:00 P.M. in the evening the defendant was at the home of some friends in Champaign, Illinois. There were several other people in the household, all of whom had gathered for the purpose of a farewell party to one Archie Moore who was then on leave from and about to return to his military unit in Vietnam. At a point early in the evening, the defendant, Carl Frazier and a Louis Mitchell were in the kitchen. Other guests were in an adjoining room. Mitchell was talking on the telephone with his girlfriend. Defendant and Frazier were seated opposite each other around a kitchen table. The testimony is uniformly to the effect that they were laughing and joking. At least there is no indication of any hostility between the defendant and Frazier at this particular time in the evening nor at any time prior thereto. The defendant reached into his hip pocket and pulled out a .32 calibre revolver. The testimony indicates that the defendant was looking in the direction of Frazier when he was in the process of removing the gun. In the process of removing the gun it discharged and the bullet struck Frazier in the left temple.

Mitchell saw the defendant reach into his hip pocket, heard the discharge of the gun, and the other occupants of the house likewise heard the shot, and went into the kitchen where they saw Frazier lying on the floor bleeding.

The defendant was screaming for someone to call the police and an ambulance. When the ambulance arrived, the defendant, who was described as crying hysterically, accompanied the ambulance to the hospital where Frazier was pronounced dead on arrival.

At the hospital the defendant talked with an orderly and requested the orderly to call the police. Defendant also talked with a nurse, Charlotte Golden, who testified that the defendant told her at the hospital that the decedent Frazier had said a “funny word” about defendant’s girlfriend and that the defendant shot him. The orderly also testified to the effect that the defendant told him that he shot Frazier after Frazier said something to him.

Upon the arrival of the police defendant was placed under arrest; he was admonished as to his rights, then gave a statement to the police as to what happened at the residence. He was described by the police officer as “cooperative and not evasive.”

An expert witness called by the State testified as to the firing characteristics of the gun, explaining that the weapon could be discharged by a 13% lb. pull on the trigger from the uncocked position, or by a 6 lb. pull on the trigger from a cocked position. A coroner’s inquest on January 27 returned a verdict of accidental death.

Section 9 — 3(a) of ch. 38, Ill. Rev. Stat. 1967, defines involuntary manslaughter in the following terms:

“A person who kills an individual without lawful justification commits involuntary manslaughter if his acts whether lawful or unlawful which cause the death are such as are likely to cause death or great bodily harm to some individual, and he performs them recklessly.” Section 4 — 6 of chapter 38 defines recklessness in the following terms: “A person * * * acts recklessly, when he consciously disregards a substantial and unjustifiable risk that circumstances exist or that a result will follow, described by the statute defining the offense; and such disregard constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation * *

Recently, in People v. Thomas, General No. 11319, (Ill.App.2d), (N.E.2d), we discussed recklessness and conduct which factually could constitute a gross deviation from the standard of care which a reasonable person would exercise in the situation. Here, as in Thomas, a sub-. stantial issue is credibility as well as a determination of whether the conduct could constitute reckless disregard of a substantial risk. We conclude from the evidentiary situation found in this record that the trial court, as the trier of fact, could determine that the defendant’s action was likely to cause death or great bodily harm and that the defendant’s conduct constituted a gross deviation from the standard of care which a reasonable person would exercise in the situation. We cannot say that this factual determination by the trial court based upon his judgment as to credibility is so unsatisfactory as to constitute a reasonable doubt of guilt. In this connection, the case of People v. Post (1967), 39 Ill.2d 101, 233 N.E.2d 565, relied upon by the defendant seems not to be persuasive. In Post the defendant shot into the ground at some distance behind a fleeing prowler. The bullet ricocheted and killed the prowler. The court there held that such conduct was not reckless per se and that the act was not likely to cause death or great bodily harm to a person some distance away. Perhaps implicit in the court’s reasoning was that the intentional or deliberate act there involved under the circumstances negated carelessness or recklessness. In this case, the evidence is that the defendant drew a loaded gun in close proximity to another individual under circumstances that the trier of fact determined to have been careless or reckless.

Section 117 — 2 of ch. 38, Ill. Rev. Stat. 1969, relates to conditions of probation. Paragraph (a) of that section contains the mandatory conditions of probation. Paragraph (b) relates to five discretionary conditions of probation, the first of which is imprisonment in a place of confinement other than a penitentiary for a period not to exceed one year and in no event to exceed the maximum penalty provided for the offense. In this case the court granted probation but imposed the one year definite term as a condition. There is no controversy but what the defendant had no record of prior convictions; nor is there any contention here that this act of the defendant was motivated by malice or intent to harm. The defendant was 22 years old at the time of the offense; he was employed; he had been in military service and was honorably discharged. Notwithstanding this favorable information, the probation officer’s report concluded that he could “find no reasonable excuse for the defendant having a loaded gun on his person or for handling same in so dangerous and irresponsible a manner.” The recommendation concluded with the suggestion of probation but with a period of incarceration. No evidence was presented by the defendant in mitigation.

The statute in Illinois expressly permits a term of incarceration as a condition of probation. Such becomes a matter of discretion with the trial court. It none the less must be descretion exercised upon the basis of the facts and circumstances of any párticular case. In U.S. v. Murphy, 217 F.2d 247, Chief Judge Duffy commented upon an unusual probation order requiring periodic incarceration of the defendant. He there observed that the purpose of probation is not imprisonment but rehabilitation and states: “The prevailing opinion among criminologists and probation officers, as well as others who have studied the question, is that mixed sentences of imprisonment and probation should not be imposed.” Notwithstanding the disapproval of such intermixing, the court sustained the imposition of the terms of probation. In Rubin, The Law of Criminal Correction, at pages 186-187, the author comments upon the practice in some jurisdictions of requiring a defendant to serve a term of imprisonment as a condition of his probation. The authors comments and the citations to studies and opinions there found raises serious question as to the practice. It would seem that if a defendant is entitled to probation he should get it and if he or his offense require imprisonment, probation should be denied and an appropriate sentence imposed. We conclude, however, that the imposition of the discretionary terms of probation, like the grant or refusal to grant probation in the first instance, is a matter to be determined in the exercise of discretion in the trial court. We are not here persuaded that this record establishes an abuse of discretion.

The judgment of the circuit court of Champaign County is affirmed.

Judgment affirmed.

SMITH, P. J., and TRAPP, J., concur.

SUPPLEMENTAL OPINION ON DENIAL OF PETITION FOR REHEARING

Mr. JUSTICE CRAVEN

delivered the opinion of the court:

Appellant in his petition for rehearing urges several issues, one of which relates to the fact that since the conviction and the considerable time that has elapsed, there are extenuating factors which may warrant a reexamination of the condition of probation requiring incarceration.

While we adhere to the views expressed in our original opinion, we note that paragraph c of section 117 — 1, ch. 38, Ill. Rev. Stat. 1969, provides that a person admitted to probation shall remain subject to the jurisdiction of the court. We view the petition for rehearing as a statement of conditions that may warrant a re-examination of the condition of probation or at least that may now become material on the question of rehabilitation. Such is a matter for consideration of and determination by the trial court since that court has continuing jurisdiction of its probationer.

Accordingly, rehearing is denied. This cause, however, is remanded to the circuit court of Champaign County for consideration of such subsequent relevant evidence as may be presented there in the event that the defendant files a proper motion in that court within 30 days of the issuance of the mandate of this court. If such motion is filed, the circuit court shall determine, in its discretion, the condition of probation. If such motion is not filed within the time limited, the mittimus is ordered to issue.

TRAPP, P. J., and SMITH, J., concur.


author: Mr. JUSTICE TRAPP Mr. JUSTICE CRAVEN

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Jewell Richard Smothers, Defendant-Appellant.
    (No. 11145;
    Fourth District
    — November 23, 1971.

      CRAVEN, J., dissenting.
    Harlan Heller and Kenneth J. Meyers, both of Mattoon, for appellant.
    Basil G. Greanias, State’s Attorney, of Decatur, for the People.
   Mr. JUSTICE TRAPP

delivered the opinion of the court:

A jury found defendant guilty of murder and a sentence of 100 to 150 years was imposed. He appeals.

We note immediately that counsel for defendant accepted appointment on appeal willingly and with grace under conditions that were not within their normal professional obligation and that this appeal has been pressed with great vigor and careful diligence.

It is urged that the conviction must be reversed and the cause remanded for a new trial because, (1) the court refused to give proper instructions presenting the issue of defendant’s sanity at the time of the offense to the jury; (2) of improper and prejudicial argument by the prosecution, and (3) prejudicial cross-examination by the State directed toward degrading and humiliating the defendant before the jury.

The event occurred in the early morning hours of July 21, 1968, at a Decatur hospital. Defendant had been admitted as a patient several days before for the treatment of an ulcer. In addition to medication directed towards the ulcer, drugs were prescribed for pain and as sedatives and tranquillizers. Defendant was described by his attending physician as uncooperative, mentally agitated and suffering from an anxiety neurosis. The physician did not testify to any mental defects or mental illness.

At the time concerned the victim, Arnett, and his wife, together with the latter’s sister and husband, were at the hospital where the wife’s father was critically ill and under intensive care. A portion of the time this group waited in a “sun room” area of the hospital. Defendant had left his hospital room and was also present in this area, attired in a hospital gown. He was reading in the sun room area or walking up and down in an adjacent corridor, during which time he was described as smoking and as waving or swinging his arms. There was such random conversation as defendant asking the victim for a cigarette and later when the family group decided to go out for food, defendant asked them to bring him some beer. They refused. Upon their return defendant was still present. The victim’s wife, sister and brother-in-law, went into another lounge area. Arnett had laid down upon a couch in the sun room to sleep or dose. Defendant was still present in the room. Within a short time nurses at a nearby station heard breaking glass and defendant was discovered at a window in the sun room holding a lighted newspaper toward the curtains. A substantial fire ensued in the hospital, and thereafter the body of the victim was found with his head crushed. A broken metal smoking stand was considered to be the lethal instrument.

Several nurses testified that as they came up with fire extinguishers, defendant held the glass doors of the sun room and they understood defendant to say that he would kill them with the smoking stand which he held if they came in. Ultimately, defendant walked away from this scene and was discovered at a rear service door of the hospital. At that time his hospital gown was described as sweaty and with blood stains on the back. He was later taken into custody and charged with this offense.

In opening statement to the jury, defendant’s counsel stated that the evidence would show that the crime of murder was not committed but that “The defendant, Mr. Smothers, further intends to prove that what action he took was justified * *

Defendant testified in his own behalf. In substance, he had left his hospital room because of an annoyance caused by other patients occupying the room — one was in great pain and restless, and another, a negro, had been brought in in a strait-jacket and was calling people on the telephone and cussing. He had gone to the sun room and was reading or walking around.

He testified in substance that after the victim’s party returned to the sun room and the victim had laid down on the couch, within a short time the latter told the defendant to sit down and then, “(A)nd he had set a paper afire and raised up and threw it at me and told me, ‘I told you to sit down’,”; that the victim pulled a knife from his pocket and “Opened the knife and came at me”.

“I said, ‘Fellow, what’s the matter with you?’ He did not answer. I turned to my left and picked up an ashtray. He came closer to me. I swung it at him and I hit his hand promptly in the middle of his arm and he dropped the knife. He reached down to pick it up. I hit him again with the ash tray, the side of the head and I also hit him again side of the head. The ash tray flew out of my hand. He fell against me. I pushed him away. He turned around and fell against my back. I pushed him away again. He walked to the back of the couch where he had been sitting. He stood there for a few seconds. He walked on up, started staggering, fell in the phone booth head first, turned around and walked about the middle of the room, he fell. He got up on one left knee — he got up on his left knee as far as he could get, he fell over on his side and rolled over on his back. I picked the ash tray up that fell out of my hand, two nurses was standing at the door.”

Defendant offered into evidence a pocket knife described as found in the following December in the dump ground to which the debris from the hospital fire had been removed. The evidence is that when found, the blade was open. The record shows that the search of debris extended over thirteen hours before the knife was found. Defendant also cross-examined the widow of die victim concerning the description of the latter’s knife, which she testified could not be found after the homicide.

Thus far the record substance of the defendant’s case has been self-defense. In considering the issue arising from the refusal of the instruction upon “sanity”, we note that the record discloses extensive pre-trial discovery directed toward obtaining the military records, the hospital and medical records of the defendant. Defendant’s counsel procured an order for psychiatric examination. The record further shows that counsel was furnished with reports of examinations by two psychiatrists, one of whom, Bauman, resided and practiced in a community removed from the excitement of the locale of the homicide. The psychiatrist, Uyeno, was caHed as a witness by the defendant. He reported that the defendant knew the difference between right and wrong, and was sane at the time of the offense. Uyeno’s report included: that there was no thought disturbance; insight and judgment were not faulty and that defendant was weH oriented but was a sociopathic personality, easily angered and with little ego control. Dr. Bauman’s written report was that defendant was correctly oriented with average or above intelligence; that his psychological tests were normal with a slight but not significant tendency to hysteria. Bauman reported that defendant was not psychotic or schizophrenic, but found that defendant had some difficulty in maintaining emotional stability and that stress could cause anxiety and frustration. No pre-trial motion for competency hearing was filed.

Defendant urges that the issue of “sanity” was essentiaHy presented in the State’s case, and that such testimony makes the giving of the tendered instructions not only proper but mandatory. The instructions tendered and refused included defendant’s Instruction No. 13 in the language of IPI, Criminal, 7.02, 25.05 and 24.01.

We note the testimony pointed out by defendant. Doris Meals, a sister-in-law of the victim, testified that as her party left the sun room she asked a nurse at the nearby station, “If that patient should be in that room in there like that way he was”. Her other testimony discloses, however, that she was referring to the fact that defendant wore only a hospital gown but that nothing that defendant did caused her to leave the sun room. There was no inquiry as to any opinion of “sanity” or criminal responsibility based upon her observation.

A technician, McCaH, testified that she left the nursing station to investigate the fire, that defendant met her at the door of the sun room with the ash stand in his hand and told her not to come in. She testified that she reported this to the head nurse, Ford, at the station, who reportedly said, “I think he is mad.” Such, of course, is an exclamation based on hearsay and does not reach the status of evidence. Nurse Ford testified but was not asked any opinion of “sanity”. She testified that she had seen defendant earlier walking up and down the corridor and talking with people, but that he did not seem particularly nervous or agitated. Defendant called Nurse Warner who attended defendant on an earlier shift. She had observed defendant waHdng up and down flapping his hands and had reported that he had refused his medication. She stated further, however, that she did not consider such conduct a matter of concern.

We note that defendant testified concerning the testimony of the several nurses that he had met at the door of the sun room with ash stand in hand and had threatened them if they entered. His testimony was that he wished to keep them away from decedent who had nearly killed him and that they misunderstood him, the defendant said.

Defendant points out the testimony of Police Officers Lycan, Butts, Behrens and Owens, who were with the defendant at the rear door of the hospital, or later. Elements of confusion and ambiguity appear- and counsel did not present the testimony in the best and clearest form. A wing or portion of the hospital was known as Millikin, whereas the fire took place in a portion of a wing known as Latham. Defendant occupied a room in Millikin. A Millikin University is also situated in the city. Officers Butts and Behrens, without being required to state the language or substance of the language of defendant, answered “yes” to a question whether defendant thought he was at Millikin University. Officer Owens, undertook to substantially quote defendant as saying, “I didn’t set the fire at the Millikin, but I did at the hospital”. These officers also testified that defendant talked about people with guns at the hospital who were shooting at people, and that he saw negroes from the window who were going to shoot him.

Such remarks of the defendant may be viewed in the light of the testimony of Dr. Uyeno called by the defendant. On cross-examination he testified that at his first interview with the defendant, the latter’s conduct was bizzare, that he was naked and rocking on his heels and talking about women with rifles and negroes who were going to shoot him. Uyeno testified that at his subsequent interview defendant told him that such account was a fabrication and that he, the defendant, needed an elaborate story.

Uyeno testified that the sociopathic personality, which he diagnosed, was a mental disease, but that defendant was not psychotic and that he knew what he was doing, and that he could conform his conduct to law.

Defendant points to the colloquy of the instruction conference and suggests that the court’s reason for refusal to the ins traction was error. The court did refer to “insanity” as an affirmative defense that had not been raised by the defendant during his opening statement or in his evidence, and that the State would have no opportunity to offer rebuttal. The court also, however, said that there was no evidence to raise an issue of fact for the jury. Upon his ruling on the post-trial motion, the court stated that there was no evidence to raise the issue of fact concerning sanity and that all of the evidence, including defendant’s extended and detailed testimony, showed his competent responsibility.

We believe that the trial court placed incorrect emphasis upon “insanity”, Ill. Rev. Stat. 1969, ch. 38, par. 6 — 2(a), as an affirmative defense requiring that defendant introduce evidence to establish the defense. Ill. Rev. Stat. 1969, ch. 38, par. 3 — 2(a) is in the language:

“ ‘Affirmative defense’ means that unless the State’s evidence raises the issue involving the alleged defense, the defendant, to raise the issue, must present some evidence theron.”

Where the asserted defense is “insanity”, the rule is stated generaUy that all men are presumed sane and that such presumption continues unless there is some evidence contending to prove insanity which is sufficient to raise a reasonable doubt of such sanity at the time the act was committed. (People v. Patlak (1960), 363 Ill. 40, 1 N.E.2d 228.) The statement of such principle continues under the present statute.

The bar e-bones problem to be resolved is whether evidence of a quantum or quality here found raises an issue for the jury. Examination of many cases discloses that the issue of sanity was sufficiently raised by (1) an adjudication of insanity if evidence shows that such insanity continues (People v. DePompeis, 410 Ill. 587, 102 N.E.2d 813); (2) medical opinion of an attending doctor (People v. Matter, 371 Ill. 333, 20 N.E.2d 600); (3) the opinion of a psychiatrist (People v. Skeoch, 408 Ill. 276, 96 N.E.2d 473), and (4) the opinion of lay persons who have had an opportunity to observe the accused who state an opinion based upon the facts observed. People v. Patlak, 363 Ill. 40, 1 N.E.2d 228. See also People v. Bedford, 31 Ill.2d 227, 201 N.E.2d 420.

Examination of many cases in our courts has failed to disclose any authority which suggests that the issue of “sanity” is properly raised before the jury solely from testimony of witnesses describing the appearance, conduct or words of the accused. Defendant suggests that he relies particularly upon People v. Matter, 371 Ill. 333, 20 N.E.2d 600, but in that case the issue was raised by the stated opinion of the medical doctor treating the accused. Defendant has suggested no authorities in which evidence of the kind in this case was sufficient to raise the issue.

On the contrary, a number of cases suggest that evidence of the quality before us is not sufficient to raise a reasonable doubt of sanity. In Montag v. People, 141 Ill. 75, it was held that testimony of witnesses to the effect that defendant was in trouble with his family and appeared disturbed in mind and seemed excited was not sufficient to raise a reasonable doubt of sanity. In People v. McBride (1970), (Ill.App.2d), 264 N.E.2d 446, witnesses’ testimony of irrational conduct of the defendant during a part of the offense was not sufficient to raise a reasonable doubt of sanity. The same conclusion was reached where a witness stated that the defendant acted “crazy”. (People v. Davenport, 111 Ill.App.2d 197, 249 N.E.2d 328.) In People v. Carter, 84 Ill.App.2d 135, 228 N.E.2d 522, a conclusion of the witness that something was wrong with the defendant was ambiguous and insubstantial evidence which failed to meet the minimal requirements of the statute.

Defendant relies upon People v. Haun, 71 Ill.App.2d 262, 217 N.E.2d 470. There the defendant appeared pro se and the record showed that he had spent a substantial period of time in a mental institution and the court excluded the remarks of a lay witness based upon observations of defendant’s nervous and mental state immediately prior to his acts. The issue there was the admissibility of evidence of mental state, rather than an issue of sufficiency of evidence to create the issue of “sanity”.

Upon the proposition contended for, the evidence in this case is, at best, speculative and ambiguous. The full testimony of Mrs. Meals and Nurse Warner shows that they suggest no question of defendant’s sanity. Statements of the defendant immediately after the event as recounted by the police officers are particularly insubstantial in the light of the testimony of Dr. Uyeno, and defendant admitted that he was creating an elaborate story concerning the events. No lay witness was asked to express any opinion concerning defendant’s competency upon the events observed by such witness.

Dr. Uyeno made a diagnosis of a sociopathic personality. It has been held that personality disorders are not a mental disease within the meaning of the statute concerned. (People v. Williams, 38 Ill.2d 115, 230 N.E.2d 224; People v. Miller, 33 Ill.2d 439, 211 N.E.2d 708.) No testimony of Dr. Mulrooney suggests that the sedative tranquillizers or pain relieving medication prescribed affected the criminal responsibility of the defendant. Upon this record we may not say that the court erred in refusing the tendered instruction.

The defendant strongly urges that the language of the State’s Attorney in cross-examination and in final argument was prejudicial and requires reversal. We have examined the record and authorities thoughtfully upon these issues.

During cross-examination, the State’s Attorney referred to a tic then apparent on one side of defendant’s face as he testified. A question was asked if such was caused by a physical condition. Defendant’s counsel objected, but the court ruled that the defendant had already answered. Defendant stated that to his knowledge, no physical condition caused the spasm. During the argument this condition was referred to as being evidence of the demeanor of the defendant to be considered by the jury. No objection was made to the argument. While the fact would be apparent to the jury, the record does not make clear whether the condition was usually and regularly apparent. An inference that it was not may be reached upon the record, and such inference is supported to some extent by the report of Dr. Uyeno that such a tic appeared whñe defendant was taking psychological tests. Defendant relies upon Berger v. United States, 295 U.S. 78, 79 L.Ed 1314; People v. Gordon, 344 Ill. 422, 176 N.E. 722, and People v. Brotan, 254 Ill. 260, 98 N.E. 535. In these cases the prosecutor misstated facts which were the basis of his cross-examination, or argued upon matters outside the evidence, or went into subjects foreign to the issues of the case. Here, what is said to be merely insulting and humiliating is also relevant to the demeanor of the defendant as a witness, and a proper matter for the consideration of the jury under the instructions of the court.

Further prejudice is urged from prosecutions argument concerning defendant as a sociopathic personaHty. In argument this was termed the equivalent of one who was a hater of people. The diagnosis of a sociopathic personality is in the record from the testimony of the psychiatrist caUed by the defendant. It is noted that the State’s argument followed that of the defendant in which it was argued that a sociopathic personality was a form of mental disease. A sociopath is defined as one whose antisocial behavior is undertaken with an awareness of reahty and understanding of the significance of his acts. (People v. Noble, 42 Ill.2d 425, 248 N.E.2d 96.) WhUe there is no objection in the record, it is urged that the argument is plain error under People v. Moore, 9 Ill.2d 224, 137 N.E.2d 246. In that case the prosecutor’s argument was that the defendant had been a gunman for many years — a fact which was clearly not within the evidence before the jury, and hence plain error. Moore points out, however, that argument based upon facts within the evidence or legitimate inferences from such facts are proper argument, and that it is proper to reflect unfavorably on the accused or to denounce a witness and he may urge fearless administration of the law. See also People v. Phillips, 126 Ill.App.2d 179, 261 N.E.2d 469; People v. Tyson (Illl.App. 2d), 264 N.E.2d 403.

It is urged that the prosecutor injected personal opinion into this argument. From the record, he commented that he was unable to understand the asserted contradictions in the defendant’s theories of the case as shown by the evidence. We find, however, nothing to suggest that he went beyond the facts in evidence before the jury.

Judgment affirmed.

SMITH, P. J., concurs.

Mr. JUSTICE CRAVEN

dissenting:

The argument of the assistant state’s attorney in this case comes squarely within the rule announced by Mr. Justice Davis for a unanimous Supreme Court in the case of People v. Moore, 9 Ill.2d 224, 137 N.E.2d 246. The court there summarized the permissible limits of argument and stated the unquestioned rule that argument based upon the evidence or upon legitimate inferences therefrom do not transcend the bounds of debate. It is proper for a prosecuting attorney to reflect unfavorably on the accused, to denounce his wickedness, and even indulge in invective. In this case, as in the Moore case, I believe the argument went well beyond the evidence or any reasonable inference from it in characterizing the defendant as a “people hater”, comparing him to a “mad dog”, discussing sanity or insanity when the jury was not instructed thereon by reason of prosecutions objection, and in supplying a subjective definition of sociopathic personality unwarranted by the evidence.

Argument to the jury exhorting the jury to vigorous enforcement of the criminal law may be permissible, but it is not permissible to state to the jury that the phrase “reasonable doubt” is something to confuse them.

As I view it, the argument was prejudicial, inflammatory, and of such a nature so that it cannot be said that the defendant had a fair trial. Thus, notwithstanding the absence of an objection by defense counsel, this case, as in Moore, should be remanded for a new trial. The trial court of its own motion should have stopped the argument and directed the jury not to consider it. In considering this issue the following portions of the argument by the assistant state’s attorney are the most objectionable and are such as necessitate application of the rule found in the Moore case:

“* # * Mr. Uhl, Mr. Greanias, and ladies and gentlemen of the jury. I guess if we had to put a title to this case, ladies and gentlemen, we would call it the case of the socio-pathic (sic) killer, or death by a people hater. Now by dictionary definition, a socio-path (sic) is a person who hates or has a strong dislike for society, the people in it. And Doctor Remedios took the stand — not Remedios, beg your pardon —Dr. Uyeno and told you that this defendant was a socio-pathic (sic) personality. He hates people and society. In his report he stated they are able to keep out of trouble.
“* * # And Mr. Uhl said, what was his motive, although the State doesn’t have to prove it. Why did he do this? I just told you why, ladies and gentlemen of the jury, he is a socio-path (sic), he hates people, society; the slightest thing will trigger him to attack members of society which he hates so strongly. That is his motive.
“* * * The defendant has a motive, or not a motive but a reason, and that is the fact that he is a socio-pathic (sic) individual. He is a dangerous and menace to you and you and every member of society. “* # * I trust that in this day and age in which we find so much apathy and disinterest where people watch crimes and do not come to the assistance of others, and where juries refuse to convict because they are given touch-stone phrase such as reasonable doubt,’ these are things to confuse you — where you can hang a not guilty and go home without fear that you have punished somebody. But justice is a two-edge sword. You must convict where there is guilt just as quickly and surely as you must acquit where there is innocence. In this case there should be no doubt in your mind.
“* * * Only a psychiatrist can give you an accurate definition of socio-pathic (sic) personality, but I think we have given you a lay one, and I think this will answer any inquiry his defense lawyer made about why he would he (sic) do it — because he is a socio-pathic (sic) personality and he is a people hater. This defendant, ladies and gentlemen, is guilty of the crime of murder. The evidence that you have heard, certain things have been received as physical evidence, his Honor will give you the law, I charge you to perform your sworn duty as representatives of the people of the State of Illinois, as the implementer of this desire for law and order, when you encounter an individual like this in the courtroom, although a difficult task indeed, I say to you this, consider having taken one’s life, having been defined as sociopath (sic), if you turn him loose today by a not-guilty, where will he strike next, whom will he strike next? Can you say to yourself, he will not strike me because he is a socio-path (sic).”

Dr. Frank I. Uyeno in his testimony did describe the defendant as a sociopathic personality with chronic alcoholism and he described such to be a classified mental disease but relates to one who is usually able to determine right from wrong. Upon redirect examination by counsel for the defendant, Dr. Uyeno in discussing a sociopathic personality, again referred to a mental disease and that persons thus classified at times do come in conflict with the law.

Characterization of the defendant as one who hates people and society, who is mentally hysterical, a dangerous menace to the jury, and one with continuing criminal propensities constitutes a non-evidentiary and gratuitous definition of sociopath.

Finally, I am unable to agree with my colleagues that the issue of insanity and the tendered instructions were properly refused. This becomes more difficult to understand in view of the statement in the majority opinion that the trial court placed an incorrect emphasis on insanity as an affirmative defense requiring that the defendant introduce evidence to establish the defense. Opinion evidence of insanity, lay or professional, is admissible and no reason is suggested that such evidence has to be couched in conclusionary language. The evidence in this case as to the bizarre conduct of the defendant prior to, at the time of, and after the offense was sufficient to submit the issue to the jury. (People v. Haun, 71 Ill.App.2d 262, 217 N.E.2d 470, and cases there cited.) This record appears to be the converse of the situation found in the cited case of People v. Carter, 84 Ill.App.2d 135, 228 N.E.2d 522, where a witness stated a bare conclusion and such conclusion was held not to meet the minimal requirements of the statute.


author: Mr. PRESIDING JUSTICE SMITH

text:
    Davidson Masonry & Restoration, Inc., Plaintiff-Appellee, v. J. L. Wroan & Sons, Inc., Defendant-Appellant.
    (No. 11356;
    Fourth District
    — November 23, 1971.
    Fleming, Messman & Lapan, of Bloomington, (Roger D. Lapan, of counsel,) for appeUant.
    Ryan and HeHer, of Mattoon, (Harlen HeUer, of counsel,) for appellee.
   Mr. PRESIDING JUSTICE SMITH

delivered the opinion of the court:

The plaintiff subcontractor sued its defendant contractor for the balance due on the masonry subcontract. The trial court directed the jury to return a verdict for the plaintiff in the sum of $6,863.21 and entered judgment. The defendant appeals. The plaintiff suggests that there was no final appealable order in existence at the time the notice of appeal was given and hence the appeal should be dismissed. Supreme Court Rule 301, Ill. Rev. Stat. 1969, ch. 110A, par. 301, provides:

“Every final judgment of a circuit court in a civil case is appealable as of right. The appeal is initiated by filing a notice of appeal. No other step is jurisdictional * *

The jurisdictional challenge is well taken. The notice of appeal was filed June 5,1970. It stated on its face that it is an appeal “from the judgment order entered on the 7th day of May, 1970, in favor of the plaintiff and against the defendant on plaintiff’s motion for directed verdict * * The only transaction to which this notice of appeal could relate so far as this record, the abstract and the supplemental abstract show is a docket entry made by the trial judge which reads:

“Cause called for further hearing. Motion for directed verdict allowed. Jury instructed. Jury returns a verdict in favor of the Plaintiff and against the Defendant and fixes Plaintiff’s damages in the sum of 6,863.21. Judgment on the verdict. Motion by Defendant for leave to file appeal Bond and perfect appeal. Appeal bond fixed in the sum of $ * * * Clerk is authorized to approve appeal Bond. See written order (WJS).”

The words “see written order” suggest that that which precedes it is incomplete, insufficient and inadequate to give a full picture and requires reference to the written order. For such a true picture, one must then turn to a written order made at the time the docket entry was made or to a written order presented, signed and filed at a later date. On July 23, a written judgment order undated was filed with the circuit clerk. Appellant’s abstract refers to this judgment by saying: “Not abstracted in full by defendant-appellant as defendant-appellant had already filed its notice of appeal on June 5, 1970, appealing from an order shown on C 3 of this record dated May 7, 1970, which order is set forth in full in this abstract”. The supplemental abstract and the record show that the written order referred to contained these recitals among others:

“WHEREUPON, judgment is entered for the plaintiff and against the defendant in the amount of $6,863.21, together with costs of suit as a final judgment in bar of action.
IT IS FURTHER ORDERED that plaintiff’s request for interest upon the sums claimed in plaintiff’s complaint shall be considered by the court.
In the event of an appeal in this cause, defendant’s bond is fixed in the amount of $10,294.81. It is further ordered that upon presentation of a bond executed by the defendant with J. L. WROAN as surety upon said bond, the Clerk is authorized to approve the bond.
IT IS FURTHER ORDERED that no proceedings relative to the collection of the judgment herein shall be taken during the pendency of the thirty day period in which the defendant is entitled to file his notice of appeal.”

The plain language of that judgment order supplies the deficiencies apparent in the memorandum of May 7, and in clear and unequivocal terms indictates that the defendant is entitled to a thirty-day period from the date of that instrument to file his notice of appeal. In Freeport Motor Casualty Co. v. Tharp, 408 Ill. 295, 94 N.E.2d 139, 142, it is stated:

“Freeman, in his work on ‘Judgments/ (Vol. I, sec. 48, 5th ed.) states: ‘Before a pronouncement should be taken as the judgment, it must be clear that it was intended as such and not merely an announcement of the opinion of the court or an indication of what the judgment is going to be/
It has repeatedly been held that a memorandum signed by the judge cannot be taken or used as the record judgment. It is but a direction to enter judgment.”

Rule 272 of the Supreme Court, Ill. Rev. Stat. 1989, ch. 110A, par. 272, effective January 1, 1967, states:

“If at the time of announcing final judgment the judge requires the submission of a form of written judgment to be signed by him, the clerk shall make a notation to that effect and the judgment becomes final only when the signed judgment is filed. If no such signed written judgment is to be filed, the judge or clerk shall forthwith make a notation of judgment and enter the judgment of record promptly, and the judgment is entered at the time it is entered of record.”

When such rule was adopted, the Committee Comments suggest that “its purpose is to remove any doubt as to the date a judgment is entered”. Under that rule if the judge requires a written judgment to be signed by him, the judgment becomes final only when the signed judgment order is filed. Under the record in this case, that date would be July 23, some six weeks after the notice of appeal was filed. It seems to us that the use of the words “see written order” in the judge’s memorandum or docket entry is a clear implication, if not a specific direction, that a written judgment order was required by him to fully conclude or finalize the transactions of that day. The language used as well as the precise language of the subsequent written judgment order precludes any thought that it was intended or expected that the memorandum or docket entry was the final judgment in the case nor was it intended that it be so treated. If, on the other hand, no written judgment order was to be filed, it seems strange that the judge would refer those reading the docket entry or memorandum to a “written order”. If no such written judgment order was to be filed, this record fails to show that either the judge or the clerk proceeded to enter the judgment of record.

At the time the notice of appeal was given in this case we had neither a signed written judgment order nor a judgment order entered of record by either the judge or the clerk within the meaning of Rule 272. This appeal is from a memorandum which under Rule 272 and under Freeport Motor Casualty Company cannot be used as a record judgment nor can it be used as a final appealable order.

For us to hold the May 7 transaction as a final appealable order is to judicially declare that which the trial court and both parties by their conduct shown in this record expressly repudiate. Either the plaintiff or the defendant prepared the July 23 order and tire other side filed objections and notice for hearing on June 5. The trial court overruled objections on July 23 and on that date, the full judgment order was signed and filed. Thus the record as well as the conduct of the parties and of the trial judge demonstrates that there was no final appealable order when the notice of appeal was given on June 5. No appeal was initiated from the July 23 order and no notice of appeal from that order has been presented or filed within the time limited by rule. In People ex rel. Henderson v. Redfern, 104 Ill.App.2d 132, 243 N.E.2d 252, the trial court made a docket entry on July 21. On November 22, he entered a formal written judgment order which was on that date filed and entered nunc pro tunc as of July 21. In that case, this court held that the thirty days began to run from November 22 and that on that record "the case was not formally and finally concluded”. There the trial court sought to finalize the judgment on June 21 by a nunc pro tunc order. That order did not bar an appeal there. Here, the converse is true. Here the trial judge and the parties unequivocally indicate by the July 23 order that the docket entry of May 7 was not a final judgment order. Strong as we may feel that cases should be decided on the merits, our jurisdiction to do that is circumscribed by rules of law and rules of procedure. We would do a disservice to the administration of justice if through a process of tortuous reasoning we evaded or avoided the plain requirement of the rules designed for our guidance and the guidance of litigants. It is not unreasonable to impose upon a successful litigant the responsibility of shepherding the entry of an appropriate and a proper judgment to receive the fruits of his success. It is likewise not unreasonable to expect that one who seeks to invoke the jurisdiction of this court must initiate that jurisdiction by a notice of appeal which is from a final appealable judgment order. Until one is entered, he is home free. The successful party cannot receive his fruits and the loser cannot appeal. The failure to do so in this case furnishes no basis for our jurisdiction and the appeal must be dismissed. Accordingly, the motion to dismiss the appeal is allowed.

Appeal dismissed.

CRAVEN and TRAPP, JJ., concur.