author: Mr. JUSTICE ABRAHAMSON

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Donald W. Jones, Defendant-Appellant.
    (No. 71-148;
    Second District
    — December 21, 1971.

      Julius Lucius Echeles, and Frederick Cohn, both of Chicago, for appellant.
    Albert N. Kennedy, State’s Attorney, of Dixon, (Edwin W. Merrick, Assistant State’s Attorney, of counsel,) for the People.
   Mr. JUSTICE ABRAHAMSON

delivered the opinion of the court:

Defendant Donald W. Jones appeals, after a jury trial, from a conviction of reckless homicide for which he was sentenced to a term of two to four years in the State Penitentiary.

The defendant contends that tire indictment was void for vagueness in that it failed to specify the acts relied upon by the State for a conviction; that the defendant’s motion for change of venue was erroneously denied; that the defendant was not proved guilty beyond a reasonable doubt; and that the rule of Miranda v. Arizona, 384 U.S. 436, was violated. The indictment, which was filed on August 27, 1970, charged that on April 4, 1970, the defendant “committed the offense of Reckless Homicide in violation of Paragraph 9 — 3, Chapter 38, Illinois Revised Statutes, 1969, in that he killed an individual without lawful justification when he, while operating a motor vehicle on Illinois Route 26, approximately one mile north of Dixon, Illinois, in a reckless manner likely to cause death or great bodily harm, did by such act cause the death of Donald H. Grobe.”

The claim that the indictment was void for vagueness is based on the assertion that the indictment contains no facts that would amount to operating a vehicle in “a reckless manner,” and that an indictment must set forth sufficient facts to afford the accused a specific designation of the offense charged so that he will be able to adequately prepare a defense and plead any judgment in bar of a subsequent prosecution for the same offense. The defendant cites People v. Griffin, 36 Ill.2d 430, in support of his argument. In the Griffin case, and in People v. Green, 368 Ill.2d 242, 254, 255, the court held that indictments charging “reckless driving” in the language of the statute, but which failed to specify any acts, were not sufficient to protect the defendant against double jeopardy. The State does not dispute the holding in these cases but points out that the gist of the offense herein is not the facts which constitute “reckless driving” but is the facts which constitute the offense of “reckless homicide.” The State cites People v. Mowen, 109 Ill.App.2d 62, 69, as illustrating the distinction between a charge of reckless driving and that of reckless homicide. In the Mowen case, the defendant was charged with several offenses. There, Count I, of the indictment, charged the defendant with involuntary manslaughter “in that he, acting in a reckless manner, killed Martha Porter with an automobile, without lawful justification, # The court in that case sustained Count I against the contention that it was vague and uncertain, and also against the contention that the charge was not specific enough to enable tire defendant to prepare a defense and to plead the judgment in bar of a subsequent prosecution for the same offense. The court there commented upon the Griffin and Green cases in which the charge was that of reckless driving and not reckless homicide, and in sustaining Count I (involuntary manslaughter) said the particular act relied upon to sustain the charge was the striking of Martha Porter and that he could have struck and killed Martha Porter only once, thus eliminating any prospect of double jeopardy. Likewise, the defendant herein could have caused the death of Donald Grobe only once. For the reasons stated in Mowen, the indictment herein is sufficient. Moreover, the defendant should have filed a motion for a bill of particulars, if he desired more information. Ill. Rev. Stat. 1969, ch. 38, par. 111 — 6.

In considering the defendant’s contention that the court improperly denied his motion for change of venue, we must consider the language of the affidavit in support of defendant’s motion for change of venue, filed at 3:45 P.M. on October 14,1970, one day before the trial took place. The affidavit was signed by the attorney for the defendant, the pertinent provisions of which are as follows:

“6. It is my opinion based upon the happenings of this date in the chambers of the aforesaid named judge wherein were present the said judge, the state’s attorney, the said judge’s secretary and myself, and wherein a negotiated plea and the state’s attorney’s proposed recommendation as to disposition was discussed, and the highly prejudicial statements made by the said judge and the bias expressed by him would most certainly prevent the obtaining by the defendant of a fair trial.”

The defendant has cited People v. Wallenberg, 24 Ill.2d 355, 356, wherein the court stated, “The right to a change of venue on account of the alleged prejudice of the trial judge is absolute if the requirements of the statute are met.”

The statute pertaining to the substitution of judges in a criminal case is contained in section 114 — 5 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1969, ch. 38, par. 114 — 5). Section 114 — 5(a) provides in part that, if a motion is made in writing within ten days after a cause involving only one defendant has been placed on the trial call of a judge for a substitution of a judge on the grounds that the judge is prejudiced against the defendant so that he cannot receive a fair trial, the cause must be transferred to another court, or judge, not claimed to be prejudiced. However, section 144 — 5(c) provides that in addition to the absolute right for a substitution of judges under section 114 — 5(a), such a motion may be made at any time for cause, if supported by an affidavit, and upon the filing of such a motion, the court shall conduct a hearing to determine the merits of the motion. A part of the committee comments to section 114 — 5 states, “Subsection (c) provides for an unlimited number of motions for cause, supported by affidavit, but it should be noted that the change will not be automatic in such cases.” Subsection (c) is discussed in People v. Lagardo, 82 Ill.App.2d 119, 127, and it is stated that under sub-section (c) the defendant is entitled to a hearing and it is reversible error for the judge to deny the motion for cause without a hearing.

The motion herein did not qualify as a motion under section 114 — 5 (a) for the reason that it was not made within ten days after the case had been placed on the call of the trial judge, but it does qualify as a motion made for substitution of a judge for cause under section 114 — 5 (c). A hearing was held by the trial judge on the morning of October 15, 1970, before the actual trial began on that day. The motion on its face reveals that a pre-trial conference was held on October 14, 1970, wherein there was an attempt to negotiate a plea.

In People v. Lawrence, 29 Ill.2d 426, 427, it was stated that, although the right of a defendant to a change of venue because the prejudice of the judge is absolute, the petition for such a change must be filed at the earliest practical moment and cannot be delayed until the judge has passed upon substantive issues and expressed himself on the merits of the cause. It was held that, when a petition for change of venue on account of the prejudice of the judge comes only after the conclusion of a conference in which the defendant attempts to obtain an agreed sentence by plea-bargaining, such petition is filed too late. The court stated at page 428, “Were we to hold otherwise, a petition for a change of venue could, in effect, be used as a vehicle to permit a defendant to ‘shop’ among the judges of a court for the one most leniently disposed to a plea of guilty.” Although that case was decided on a petition filed in 1958 and, therefore, prior to the adoption of the Code of Criminal Procedure in 1963, the reasoning of the court therein is logical and applies under our present statute. Therefore, the trial judge did not abuse his discretion in denying the motion.

The defendant next contends that the evidence failed to prove beyond a reasonable doubt that he drove his vehicle in a reckless manner and states that at the very best the conflicting evidence demonstrates only that he had consumed one alcoholic beverage and may have crossed the center line of the highway at the point of impact. Thus, it is contended that the evidence merely indicates negligence on his part and that there was no proof beyond a reasonable doubt that he drove his vehicle in a reckless manner or that he was under the influence of intoxicating liquor. He cites The People v. Schneider, 360 Ill. 43, 52, wherein the court stated that the gist of the offense of manslaughter with a motor vehicle is criminal negligence, and that negligence to be criminal must be reckless or wanton and of such a character that it shows an utter disregard for the safety of others under circumstances likely to cause injury. However, in that case, the defendant conceded that if he were drunk at the time of the accident and such drunkenness caused the accident, then he was guilty of manslaughter. There the conviction was reversed, apparently because the evidence disclosed that there was an automobile between the defendant’s automobile and an overturned automobile with which he collided and the defendant could not have seen the automobile he struck in time to avoid it. The State submits that the contention of the defendant that his conduct was simple negligence is not supported by the facts, and cites People v. Coolidge, 124 Ill.App.2d 479, 485. In Coolidge, this court affirmed a conviction of reckless homicide, where the evidence was conflicting as to the intoxication of the defendant and as to whether he drove out of his lane of traffic when he struck and killed a person. It was held that, where the evidence is conflicting but legally sufficient if the prosecution witnesses are believed, a reviewing court will not substitute its judgment for that of the trier of the fact. Without going into the testimony in detail and despite the contention of the defendant that he was not under the influence of intoxicating liquor but was ill, a number of witnesses testified that the defendant was under the influence of intoxicating liquor and that he was in the wrong lane of traffic when he struck the automobile in which Grobe, the deceased, was riding. The jury was justified in finding the defendant guilty of reckless homicide as tibe crime was proved beyond a reasonable doubt.

Another contention of the defendant is that a statement was taken of the defendant, and introduced in evidence against him, without giving him the Miranda warnings, as required, before securing the statement. (Miranda v. Arizona, supra.) A state trooper, Robert Fischer, in testifying on behalf of the State, stated that he received a call to go to the scene of the accident; that he saw the two cars involved in the accident; that he noticed that the debris and marks were in the southbound lane (the proper lane for the Grobe car); and that he checked the license numbers of the Grobe car and also of the Pontiac, which belonged to the defendant. Thereafter, Fischer left the scene and went to the hospital where he saw Grobe and others. He then went to the defendant’s home, where he asked the defendant if he was hurt and advised the defendant that he, Fischer, would have to make out an accident report. In doing so, Fischer asked Jones for his full name, date of birth, and what happened. In response to the question of “what happened?” the defendant said, “I guess I was run off the road by some kids.” Fischer then asked the defendant in which direction he was going, and the defendant replied, “north.” After completing the accident report, Fischer arrested the defendant for “driving under the influence,” took him to the county jail, and read the Miranda warnings to him. At the trial, the defendant denied he was under the influence of liquor at the time of the accident although Fischer said he noticed a strong odor of alcohol on the defendant’s breath, and concluded that the defendant was under the influence of an intoxicating beverage.

It is clear that the statements taken of the defendant before he was arrested were taken in order that the officer could fill out an accident report. Under Miranda, the prosecution may not use any statement of exculpation or inculpation stemming from custodial interrogation of the defendant unless it is demonstrated that the procedural safeguards were used to effectively preserve the privilege against self-incrimination. At the time the statements herein were taken, the defendant was not in custody or otherwise deprived of his freedom of action in any significant way. The statements, apparently, were given freely and voluntarily, and in order that the required accident report could be filled out. Under these circumstances, we do not perceive any violation of the rules announced in Miranda.

As to his final contention, the defendant did not object to testimony which he now says was impermissible hearsay. An objection based on hearsay must be made, if at all, at the time the testimony is offered, and since no objection was made then, it is considered waived.

We find no reversible error in the record. Therefore, the judgment of the circuit court of Lee County is affirmed.

Judgment affirmed.

SEIDENFELD and GUILD, JJ., concur.


source: Caselaw Access Project

author: Mr. JUSTICE SEIDENFELD.

license: Public Domain

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Michael Nelms, Defendant-Appellant.
    (No. 70-123;
    Second District
    — December 22, 1971.
    Ralph Ruebner, of Defender Project, of Elgin, (Thomas Holum, of Defender Project, of counsel,) for appellant.
    William V. Hopf, State’s Attorney, of Wheaton, (Ralph J. Gust, Jr., and Malcolm F. Smith, Assistant State’s Attorneys, of counsel,) for the People.
   Opinion by

Mr. JUSTICE SEIDENFELD.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Jerry Young, Defendant-Appellant.
    (No. 70-248;
    Second District
    — December 22, 1971.
    Ralph Ruebner, of Defender Project, of Elgin, (Mathew J. Moran, of Defender Project, of Chicago, of counsel,) for appellant.
    Jack Hoogasian, State’s Attorney, of Waukegan, for the People.
   Opinion by

Mr. JUSTICE SEIDENFELD.


author: Mr. JUSTICE GUILD.

text:
    The People of the State of Illinois, Appellee, v. Phillip Sirben, Defendant.
    (No. 70-164;
    Second District
    — December 23, 1971.
    E. Roger Horsky, of Defender Project, of Elgin, (Thomas Holum, of Defender Project, of counsel,) for appellant.
    William Ketcham, State’s Attorney, of Geneva, (W. Ben Morgan, and Leo Wotan, Jr., Assistant State’s Attorneys, of Elgin, of counsel,) for the People.
   Opinion by

Mr. JUSTICE GUILD.


author: Mr. PRESIDING JUSTICE THOMAS J. MORAN

text:
    James Baylor et al., Plaintiffs-Appellants, v. Harold R. Thiess et al., Defendants-Appellees.
    (No. 71-60;
    Second District
    — December 23, 1971.

      Simpson & Simpson, of Aurora, for appellants.
    Redman, Shearer, O’Brien & Blood, of St. Charles, for appellees.
   Mr. PRESIDING JUSTICE THOMAS J. MORAN

delivered the opinion of the court:

The plaintiffs appeal from an order which dismissed their action on the ground of failure to prove a prima facie case for an easement by implication.

The elements necessary to establish an easement by implication are: 1) a separation of title; 2) prior to separation, the use must have been so long continued or obvious as to indicate permanency; 3) the use of the claimed easement must be essential to the beneficial enjoyment of the land granted or retained. (Gilbert v. Chicago Title & Trust Co. (1955), 7 Ill.2d 496, 499; Carter v. Michel (1949), 403 Ill. 610, 617; Traylor v. Parkinson (1934), 355 Ill. 476, 479.) In their complaint, plaintiffs set forth sufficient facts to establish these elements of an easement by implication.

The defendants’ answer admitted all the essential allegations of the complaint, and then alleged that the plaintiffs were aware, when they purchased their property, that they would not be able to use the septic system on defendants’ property for their sewerage disposal. At the close of plaintiffs’ case, the trial court held that the plaintiffs had the burden to negate the affirmative allegations of the defense and could not establish a prima facie case until they did so. The court erred in so finding, and must be reversed.

The plaintiffs had established a prima facie case because they had alleged sufficient facts, admitted by defendants on which to find an easement by implication. (Morrison v. Flowers (1923), 308 Ill. 189, 195.) The defendants’ answer was an affirmative defense because, while it admitted all the elements necessary to establish an easement, it asserted new matter by which the apparent right could be defeated. (Section 43(4) of the Civil Practice Act, Ill. Rev. Stat. 1969, ch. 110, par. 43(4); Hurst v. Papierz (1970), 129 Ill.App.2d 117, 126; Cunningham v. City of Sullivan (1958), 15 Ill.App.2d 561, 567-568.) The burden of proving an affirmative defense is on the one asserting it. (Paddock v. Glennon (1964), 32 Ill.2d 51, 54; Horst v. Morand Bros. Beverage Co. (1968), 96 Ill.App.2d 68, 81; Bauer v. Sawyer (1955), 6 Ill.App.2d 178, 193-194, aff'd. 8 Ill.2d 351 (1956).) Furthermore, once a prima facie case was established, the burden of introducing further evidence was on the defendants. See, Behnke v. President and Bd. of Trustees (1937), 366 Ill. 516, 518-519; Johnson v. Pendergast (1923), 308 Ill. 255, 262; Noyes v. Gold (1941), 310 Ill.App. 1, 6.

For these reasons the finding of the trial court must be reversed and remanded with instructions to proceed in accordance with the views expressed herein.

Reversed and remanded.

SEIDENFELD and GUILD, JJ., concur.


author: Mr. PRESIDING JUSTICE THOMAS J. MORAN Mr. JUSTICE SEIDENFELD

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Kenneth Goodman, a/k/a Ralph Bottoms, Defendant-Appellant.
    (No. 71-61;
    Second District
    — December 23, 1971.

      SEIDENFELD, J., specially concurring.
    E. Roger Horsky, and Ralph Ruebner, of Defender Project, of Elgin, for appellant.
    Dexter A. Knowlton, State’s Attorney, of Freeport, for the People.
   Mr. PRESIDING JUSTICE THOMAS J. MORAN

delivered the opinion of the court:

Defendant appeals from a conviction for the theft of property exceeding $150.00 in value for which he was sentenced to a term of four to eight years in the penitentiary.

The conviction is based upon his entry of a plea of guilty which he now claims was entered involuntarily, claiming further that the trial court erred by denying his motion to withdraw the plea.

On January 12, 1971, prior to the entry of the plea, the trial court admonished the defendant in accordance with Supreme Court Rules 401(b) and 402(a) (c) [S.H.A., Ch. 110A, Sec. 401 and 402(a) (c)]. No issue is raised thereto. The issue is whether the admonishment complied with Supreme Court Rule 402(b) and (d). S.H.A., ch. 110A, sec. 402(b) (d).

During the admonishment, the court inquired if any plea negotiations had taken place. The State’s Attorney responded affirmatively and stated that defense counsel had been informed of the recommendations the State would make to the court in the event of a plea of guilty; that he had been informed by defense counsel that the recommendations had been conveyed to the defendant; and that at “the appropriate time I will ask him [defense counsel] when the recommendation is made, if, in fact, this negotiation was conveyed to the defendant.”

“By the Court: Mr. Rodkey [defense counsel], is this your understanding of the plea negotiations had in this case?

By Mr. Rodkey: Yes.

By the Court: And this has been communicated to the defendant in this case?

By Mr. Rodkey: Yes.

By the Court: And that is in its entirety?

By Mr. Rodkey: Yes.

By the Court:

Q. Mr. Bottoms, do you agree, is this correct, that Mr. Rodkey has communicated to you what the State’s Attorney would recommend as a penalty in this case in the event you entered a plea of guilty?

A. (Defendant) Yes, sir.

Q. All right, now, let me advise you at this time, Mr. Bottoms that even though Mr. Knowlton, the State’s Attorney, makes a recommendation as to what the penalties ought to be in this case, I, as Judge, am not bound to follow that recommendation, and I’m at liberty to impose a sentence which I feel to be proper in this case within the limitations of one to ten years, do you understand that?

A. Yes.

Q. And, likewise, if your own attorney makes a recommendation as to what the penalties ought to be in this case, I need not follow his recommendation either, do you understand that?

A. Yes.

Q. Now, knowing all these things, knowing of your right to a jury trial, your right against self-incrimination, and all the explanation I have made in this matter as to the penalties which can be assessed against you and the other explanations I have made, do you now still persist in and renew your plea of guilty?

A. Yes, Sir.

Q. All right, the Court will now accept your plea of guilty to the charge contained in the Information.”

Thereafter, defendant moved for probation and, at the conclusion of the testimony, the State’s Attorney, addressing the court, stated:

“In view of the defendant’s long record, I concur with the report of the Probation Officer in this matter, and I feel that an appropriate sentence would be not less than one, nor more than seven years in the Illinois State Penitentiary. This is the recommendation I conveyed to the defendant through his counsel.

By the Court: Mr. Rodkey?

By Mr. Rodkey: The defendant wishes me to recommend that he be sentenced one to three. That’s aU I have, your Honor.

By the Court: Mr. Bottoms, do you have anything else you wish to say to the Court before I pass sentence?

By the Defendant: Only that I don’t believe I’d make parole real fast with my past record. That’s why I’m asking for a lighter sentence, if possible.”

It should be noted that the court was not informed of the contents of the referred-to plea negotiations; neither did either side request permission to disclose the same for the court’s consideration.

The court denied probation, sentenced the defendant and advised him of his rights to appeal. Within a week, the defendant filed a motion to withdraw his plea of guilty. By way of a memorandum decision, the court denied this motion.

Defendant contends that the plea of guilty was involuntary, asserting it was the product of a plea agreement, the terms of which were neither stated in open court nor confirmed by the court prior to its acceptance; , that, consequently, the acceptance of the plea was in violation of the ] 14th Amendment of the U.S. Constitution and Supreme Corut Rule i 402(b). This contention is bottomed upon the conclusion that an agree- I ment between the defendant and State’s Attorney had been reached. The record does not substantiate such contention but merely discloses that the State’s Attorney had made a recommendation, the substance of which was not revealed. Nowhere is it shown that the defendant was agreeable to the recommendation. (In fact, indicative of a contrary conclusion which we do not consider here because it came after the acceptance of the plea of guilty, is the disparity shown by counsels’ recommendations: the State recommended a sentence of 1-7 years, the defense, 1-3 years.)

Supreme Court Rule 402(b) and (d) provide:

“(b) Determining Wether the Plea is Voluntary. The court shaH not accept a plea of guilty without first determining that the plea is voluntary. If the tendered plea is the result of a plea agreement, the agreement shaH be stated in open court. The court, by questioning the defendant personaUy in open court, shaH confirm the terms of the plea agreement, or that there is no agreements * * *.
(d) Plea Discussions and Agreements. When there is a plea discussion or plea agreement, the following provisions, in addition to the preceding paragraphs of this rule, shall apply:
(1) The trial judge shaH not initiate plea discussions.
(2) If a tentative plea agreement has been reached by the parties which contemplates entry of a plea of guilty in the expectation that a specified sentence will be imposed or that other charges before the court will be dismissed, the trial judge may permit, upon request of the parties, the disclosure to him of the tentative agreement * * * Thg judge may then indicate to the parties whether he will concur in the proposed disposition; * * * If he has indicated his concurrence * * * he shall so state in open court at the time the agreement is stated as required by paragraph (b) of this rule * # *.
(3) If the parties have not sought * * * his concurrence * * # to a plea agreement, he shall inform the defendant in open court at the time the agreement is stated as required by paragraph (b) of this rule that the court is not bound by the plea agreement, and that if the defendant persists in his plea the disposition may be different from that contemplated by the plea agreement.” (Emphasis added.)

Referring to section 3, Committee Comments, S.H.A., ch. 110A, sec. 402, p. 52, states:

“* * # (3), where there is a plea agreement but no concurrence or conditional concurrence by the judge (either because the parties have not sought it or the judge has declined to give it), the judge is required to advise the defendant that he is not bound by the agreement stated in court at the time of the plea * * (Emphasis added.)

Defendant, relying on a single provision (paragraph b) which he claims paramount to all other provisions, argues that strict compliance is mandatory and that the failure of the court to have the terms of negotiation entered of record prior to acceptance of the plea created reversible error.

Rule 402 is prefaced with the statement that substantial compliance must be had with paragraphs (a) through (f) contained therein. Indeed, the intent of the rule is subverted by considering only a portion of that rule; therefore, a single provision may not be excerpted and relied upon.

Neither party herein requested disclosure of their plea "recommendation” to the court, inor did they seek the court’s concurrence. While we agree with defendant’s assertion of the necessity for strict compliance with paragraph (b), the failure to so comply was on the part of the defendant, not the court. The court is expressly prohibited from initiating plea discussions and, as can be seen from the emphasized quoted portions of the rule, the burden is upon the parties to have their negotiations made of record. Certainly, the parties cannot bind the court to the terms of an agreement of which it has no knowledge. At the time of accepting the plea of guilty, the court had no alternative but to invoke (as it did) paragraph (d), section 3.

Defendant’s motion to withdraw his plea of guilty states that he agreed to so plead upon the recommendation that he would receive a sentence of one to seven years but the court did not foHow the recommendation. Were we to assume defendant’s imphed agreement to the recommendation by his plea of gmlty, we must stiH conclude that the trial court committed no error. (It has already been ascertained that the court cannot be bound without first being made aware of the plea arrangement and then, only if it concurs.) The record discloses that, after acceptance of the plea, the State complied with its part of the agreement by recommending a sentence of one to seven years. Because the court did not foHow the recommendation, in no way deprived defendant of any of his rights. People v. Baldridge (1960), 19 Ill.2d 616, 621-622.

In order to avoid some appeals based upon technicafities, strict ritualistic requirements are imposed on the trial court. In this instance, it would seem (in accordance with a reading of the rule as a whole and comments thereon) that the burden of disclosing the terms of a negotiated plea must rest primarily with the defendant, the one whose interest is best served by such revelation, or with the prosecution. The court is particularly absolved of this responsibility.

For the reasons stated, we find no error and the judgment of the trial court is affirmed.

Judgment affirmed.

GUILD, J., concurs.

Mr. JUSTICE SEIDENFELD

speciaHy concurring:

While agreeing that the judgment below should be affirmed, I do not agree with all that is said in the majority opinion.

It is clear from the record that the court did not participate in any advance plea negotiations, and was unaware of any such discussions until advised by the State’s Attorney at the time of the arraignment that he would make a recommendation of sentence to the court, the nature of which was not disclosed.

The admonishment by the court was in substantial compfiance with Supreme Court Rule (402(a) and (b). The court properly concluded that the plea was voluntary and not based upon any promises before acceptance. There was, in fact, no agreement and the court so determined. In my view, the case should be disposed of on this basis.

I do not think that the provisions of Supreme Court Rule 402 should be characterized as “ritualistic” and stated “in order to avoid some appeals based upon technicalities”. The rule expresses standards and directions to insure the acceptance of a voluntary and understanding plea in conformity with constitutional requirements. Lines of inquiry are outlined which are to be pursued in substantial compliance with the rule and its purposes. The duty to see that Rule 402, Par. (b) is complied with, in my opinion, is on the court and cannot be placed upon the defendant or the prosecutor.

The majority opinion contains the statement (p. 5)

“While we agree with defendant’s assertion of the necessity for strict compliance with paragraph (b), the failure to so comply was on the part of the defendant, not the court.”

This is misleading. If there had been a plea agreement I think that the court would have had the duty “by questioning defendant personally in open court * * * (to) confirm the terms of the plea agreement”, (Par. (b), supra) to determine whether an agreement or any other promises had been used to obtain the plea. The Committee Comments to Rule 402(b) state:

“* * * (b) also requires that if the tendered plea is the result of a plea agreement, then the agreement must be stated in open court. It is important to give visibility to the plea agreement process in this way, as otherwise the defendant may feel required to state falsely that no promises were made and the plea may later be subject to collateral attack.”

I agree that under Paragraphs (d)(1), (2) and (3) of the Rule, referred to in the majority opinion, any duty to disclose the plea discussions and tentative agreements in advance of the guilty plea rests upon the defendant or the prosecutor, since the trial judge is not to initiate plea discussions and need not inquire into the terms if he does not wish to take part in the process or does not intend to concur, conditionally or otherwise, in the agreement. This portion of the rule is a recognition of “the propriety of limited advance consultation with the trial judge, with his permission and upon request of the parties, concerning the probable disposition upon an entry of a plea of guilty * * (A.B.A. Standards Relating to Pleas of Guilty, Commentary, Sec. 3.3(b), pages 75 — 76. See also Committee Comments appended to S.H.A., ch. 110A, par. 402(d)(2)).

My concern is that the language of the majority may be interpreted so as to dilute the requirement that the court determine that the defendant is pleading voluntarily and knowingly and that his plea is not given in reliance on an invisible plea agreement process.


author: Mr. JUSTICE HUNT

text:
    William R. Kauzlarich, Plaintiff-Appellee, v. Emily K. Landrum et al., Defendants-Appellants.
    (No. 70-78;
    Third District
    — October 26, 1971.
    John E. Cassidy, Sr., of Peoria, for appellant.
    Arthur D. Young, Martin M. Love, and Charles Wihelm, all of Lewis-town, John Baudino, of Farmington, and William R. Kauzlarich, of Colchester, for appellee.
   Mr. JUSTICE HUNT

delivered the opinion of the court:

This is an appeal from an order establishing a constructive trust in a one-half share of an estate, vested by Will. The Plaintiff is an heir of the deceased and he or his heirs would inherit an additional interest upon the termination of the trust if established, at the death of the trust beneficiary. The testamentary legatee and devisee appeals.

Matilda Kauzlarich died, testate, a resident of Fulton County, Illinois, January 16, 1966. She left her surviving as her sole heirs, legatees and devisees, two daughters, Mary Kauzlarich, an incompetent patient at Peoria State Hospital, and Emily K. Landrum, a resident of the State of Virginia; and two sons, William Kauzlarich, Plaintiff, and Walter Kauzlarich, both residents of the State of Illinois. By her Last Will and Testament, dated August 24, 1965, and admitted to probate May 18, 1966, she made a $700.00 cash bequest to her son, William, and divided the remainder of her estate one-fourth to William, one-fourth to Walter, and one-half to Emily. No provision was made for Mary. In the event Emily predeceased Matilda, the one-half share was to be divided among the two sons and their children. Emily survived her mother and the contingent distribution is moot except for comparison with certain language in a letter from Emily to her brother, William, in December, 1965, which will be discussed hereinafter.

The complaint seeks the establishment of a trust in the one-half share of the estate left to Emily and asks for an accounting, access to the family home of the testatrix, and for other relief. Defendant, Walter ! Kauzlarich, answered the complaint denying the material allegations and filing a counter-claim for partition of the real estate. The Defendants Landrum answered denying the existence of any trust and also answered the counter-claim for partition. Martin Love and Charles Wilhelm were appointed Guardian ad Litem and attorney for Mary Kauzlarich, incompetent, and filed answer to each of the above pleadings. The trial court imposed a constructive trust upon one-half of Emily’s one-half interest, denied the prayer for accounting without prejudice, and denied the other prayer for relief. The issue of partition raised in the counterclaim was apparently severed from the case as was a separate suit challenging the validity of the Will on the grounds of lack of testamentary capacity which was at one time consolidated with this case for trial.

Testatrix was an immigrant to the United States and never learned to read or write the English language. She was in her 80’s at the time of the execution of her Will in 1965, and was in failing health. Her husband had predeceased her in 1962 at a time when Mary had been a patient at Peoria State Hospital and bills for her support and care had accrued. Her share of her father’s estate and some other funds of hers were apparently consumed in a reimbursement proceeding in probate. Matilda was upset about this. On several occasions she counselled at length with Walter about how to leave her money so that the State could not take any for Mary’s keep. Emily was present during most of these conversations.

Walter testified to two visits at his mother’s home in the summer of 1965. At this time Emily was also home on a visit. The problem of Matilda’s estate planning and of Mary’s needs were discussed off and on over a several hour period between Matilda, Walter and Emily on at least two different days. Matilda said she was going to change her Will and wanted Walter to act as executor. Walter asked that Emily be named first because Emily had always handled her mother’s business affairs. At this time Matilda said she planned to leave Emily a one-half share to take care of Mary’s needs; that she would not leave it directly to Mary because the State would claim it. The witness advised his mother to leave Mary’s one-fourth share to Emily who had always looked after Mary and had used Matilda’s and Emily’s money for Mary’s needs. Emily agreed she would always look after Mary as she had in the past. It was also discussed that upon Mary’s death her one-fourth share would go to the remaining children and grandchildren. Walter said his mother did this because she trusted Emily.

Walter further testified that after his father died in 1962, Emily looked after their mother’s business affairs, had a joint checking account with her, paid bills for her, gave her money, and looked after Mary’s clothing and needs, acting as her general agent.

Paul Greenwell, a Canton, Illinois attorney, testified that he was called to the Kauzlarich home where he interviewed Matilda about her proposed Will. Both Matilda and Emily were present throughout most of the conversations. Matilda wanted a specific cash bequest to William and the remainder divided equally among her four children. She mentioned Mary’s incompetency and her desire not to have the State get any of her share. Greenwell suggested the possibility of a one-fourth interest in trust for Mary’s benefit and the use of a Canton bank as a corporate trustee. Matilda did not want a bank as trustee and did not want any sum specified in the Will as set aside for Mary. Greenwell then told her she could will Mary’s share to one of the other children and Matilda said she had faith in Emily and she would want Emily to take care of it for Mary. Emily was non-committal throughout these conversations. Matilda gave no instructions to Emily about how to use Mary’s share in the presence of this witness. The Will was prepared and executed as set forth above.

After the execution of the Will and on or about December 10, 1965, Emily wrote a letter from her home in Virginia to her brother William in Illinois. He had been looking after his mother whose health was failing. Much of the two page letter concerned the care of Matilda. On the second page Emily attempted to set forth her understanding of some of her mother’s estate planning. The letter is inaccurate and unintelligible in part. It states, in part:

“That Will is drawn up for everything to be divided among those living — you, Vladi, and the two to be indicated as one-half to be set up for Mary. At the death of one of us, that share goes to that person’s children as you and Valdi. If I should go, I had to sign everything to your children and Valdi’s. The same thing applies for Mary’s invested or her share. By law, this must be carried out. Merle in no way is involved in this, and I cannot leave him one cent. This was Mom’s intention and I followed suit.”

While Emily was confused as to the distribution of her share if she predeceased her mother and the distribution thereof if she survived, it is apparent that she knew she would receive a one-half share which included her own one-fourth share and Mary’s one-fourth share which she was to hold for Mary.

Emily testified in her on behalf. She did not adequately refute the testimony of her brother Walter and Attorney Greenwell. She could not explain the letter above or what she meant thereby. She disclaimed any knowledge of her mother’s estate plan prior to her mother’s death and the distribution of copies of the Will. Based primarily on the above testimony the trial court found that a fiduciary relationship existed between Emily and her sister Mary and her mother Matilda; that Emily had received a one-half share of the residuary estate under the Will, one-fourth being her own and one-fourth being Mary’s; that Emily denied holding the one-fourth for Mary which resulted in a constructive fraud and unjust enrichment. The court declared a constructive trust in a one-fourth interest in the estate, being a one-half part of the one-half interest willed to Emily. The court allocated fees and costs and directed Mary’s share be collected and managed by a corporate trustee to be selected. The decree further declared the remainder of the one-fourth interest as intestate property which would pass to the heirs of Matilda upon Mary’s death.

The trial judge had the best opportunity to observe the witnesses and to weigh the credibility of their testimony. Based upon the record as above set forth, this Court concurs with the trial court in imposing the constructive trust upon one-half of the residual one-half interest received by Emily under her mother’s Will. The evidence is clear and largely unrefuted that Emily enjoyed a fiduciary relationship with her mother Matilda and her sister Mary. She had helped both with personal and financial affairs at a time when her mother was limited in her abilities to look after herself and her sister was incompetent. She had worked with Attorney Greenwell after her father’s death in resolving the State’s claim for reimbursement from Mary’s fund and the contributions to be made to the state hospital by Matilda. She was present when her mother discussed with Walter and later with Greenwell her estate plan to avoid putting anything in Mary’s name so the state would not get it. She knew that her mother had considered certain alternatives and had elected to trust Emily by putting Mary’s share in Emily’s name. She acknowledged this in a letter to her brother William. After her mother’s death she denied any knowledge of such trust, in the pleadings and in her testimony, although the record is almost silent as to any demands for an admission of the trust relationship, denial thereof, or any nonperformance in the care of Mary.

Where a fiduciary relationship exists and the violation thereof would result in a constructive fraud and unjust enrichment, the court will impose a constructive trust.

Constructive trusts are divided into two general classes, one being where actual fraud is present and the other where the existence of the confidential relation and subsequent abuse thereof is present. The mere existence of a confidential relationship prohibits the dominant party from seeking any selfish benefit during the course of the relationship and affords a basis for fastening a constructive trust upon property so acquired. Where a confidential relation exists it is presumed that the transaction resulted from influence and superiority and the burden rests upon the grantee or devisee to show that it was fair, equitable and just. Kester v. Crilly, 405 Ill. 425; Wagner v. Clauson, 399 Ill. 403; Schueler v. Blomstrand, 394 Ill. 600. See also Scott on Trusts, Third Edition, 1967, Volume I, Section 55.1, Pages 419 et seq.

The facts of this case fall squarely within the framework of the law in the cases and authorities above cited.

The order of the trial court is affirmed.

Order affirmed.

ALLOY, P. J., and STOUDER, J., concur.


author: Mr. JUSTICE STOUDER

text:
    Adelynne Woodshank, Plaintiff-Appellee, v. Rudolph M. Woodshank, Defendant-Appellant.
    (No. 70-118;
    Third District
    — October 26, 1971.

      Louis Olivero, of Peru, for appellant.
    Paul J. Perona, Jr., of Spring Valley, for appellee.
   Mr. JUSTICE STOUDER

delivered the opinion of the court:

On December 19, 1968, Plaintiff-Appellee, Adelynne Woodshank, filed her complaint in the circuit court of La Salle County seeking a divorce from Rudolph Woodshank, Defendant-Appellant, on the grounds of mental and physical cruelty. Pursuant to defendant’s demand therefore the issues were submitted to a jury which found in favor of plaintiff and pursuant to such finding the decree of divorce was entered in favor of plaintiff by the trial court. The decree awarded custody of the only child of the marriage still a minor to plaintiff. The decree ordered defendant to pay $20.00 per week for the support of such child and $25.00 per week as alimony and also awarded plaintiff $2,500.00 as attorney’s fees. Post trial motions were denied and defendant has appealed. Plaintiff has also cross appealed from that part of the decree awarding attorney’s fees, child support and alimony.

Plaintiff and defendant were married in 1947 and separated December 2, 1968. Two children were born of the marriage but only one child was still a minor at the time of the hearing in this cause. Defendant is a brick layer, works regularly except for seasonal interruption and has been a good provider for his family. Plaintiff has worked as a secretary in an insurance agency since 1960.

It appears that the parties had arguments ever since they were married. These arguments, according to plaintiff, originally centered around her management of the family money and they occurred on the average of once a month during the first ten years of the marriage.

According to plaintiff the arguments increased in number and intensity during the last one and a half years the parties lived together and occurred almost daily during the last two months prior to their separation. The arguments from October through December, 1968, were mainly involved with the plaintiff’s activities in the Catholic War Veteran’s Auxiliary. During the course of these arguments, the defendant would according to plaintiff, yell, get red and flush in the face, spit and foam at the mouth, and knock things down in the house. Furthermore according to plaintiff, defendant used all manner of profanity, including vile names (illustrating the epithets used), without regard to whether the children were present, frequently during the period prior to the separation told her to “get the hell out” and generally tried to intimidate the plaintiff in other ways. As a consequence of defendant’s conduct plaintiff indicated that she became tense, haggard, distraught, nervous, and ill at ease. She feared for her life, was very nervous, and cried a lot. Plaintiff’s testimony is corroborated to some extent by the testimony of her brother, mother and the two children of the marriage.

Defendant denied plaintiff’s accounts of the arguments, insisted that he was a man of gentle temper, had not used the profanity charged and that whatever difficulties the parties had were caused by plaintiff’s auxiliary activities. According to defendant, plaintiff neglected her household duties in preference to auxiliary business and refused to permit him to accompany her to banquets of the organization where husbands were generally invited.

Plaintiff also testified concerning acts of physical cruelty alleged to have taken place in 1948, 1950 and 1959, but in view of our conclusion this aspect of the case does not require further discussion.

So far as the charge of extreme and repeated mental cruelty is concerned it is defendant’s contention that the evidence is insufficient to support such charge as a matter of law. In particular defendant argues that the character of his conduct does not fall within the generally accepted standards or criteria of mental cruelty and that in any event the complained of conduct was provoked by plaintiff. As indicated earlier the issues were submitted to a jury the only instructions being tendered by defendant and given by the court, consequently the defendant has not complained of any irregularities in the instructions.

It is a basic interest of the State to preserve the integrity and continuity of marriages and divorces will not be granted unless there is sufficient evidence of cause therefore as specified by statute. As has been observed in recent Illinois decisions extreme and repeated mental cruelty as a grounds for divorce is of rather recent or gin in Illinois. The enunciation and application of the principles regarding this ground for divorce are therefore in a state of development. According to Howison v. Howison, 128 Ill.App.2d 377, 262 N.E.2d 1, “The conduct of a defendant may vary from case to case but the ultimate test is the effect such conduct has upon the plaintiff and the marriage. Nelson on Divorce, in commenting upon the subject, has stated that decisions, in various jurisdictions, defining mental cruelty have employed a variety of phraseology making it impossible to set forth all such conditions in an acceptable form. However, it is generally recognized that the elements consist of a course of abusive and humiliating treatment, calculated or obviously of a nature to torture, discommode, or render miserable the life of the opposite spouse; and which actually affects the physical or mental health of such spouse.” As observed in Stanard v. Stanard, 108 Ill.App.2d 240, 247 N.E.2d 438, “Whether certain acts will constitute * * * mental cruelty still depends upon the total factual background surrounding the conduct under question. This includes the particular emotional and personal makeup of the parties, and the varying circumstances under which any of the incidents occurred that may have given rise to the j acts.”

In reviewing the sufficiency of the evidence it is our duty to consider all of the evidence in its aspect most favorable to the plaintiff. From our foregoing summary of the evidence and from the briefs it appears that the nature and causes of defendant’s conduct as well as its effect on plaintiff is disputed. Much of defendant’s argument is advanced to discredit, discount or dismiss the evidence favorable to and supporting plaintiff’s cause of action which tends to confirm the judgment of this court that the issues are those appropriately submitted to and resolved by a jury. Loveless v. Loveless, (Ill.App.2d), 261 N.E.2d 732.

Although defendant denied the conduct attributed to him, his contradictory position with respect to such conduct can not be overlooked. Although parties may adopt contradictory legal theories in an effort to explain or justify contingent underlying factual situations the trier of fact may well draw completely unfavorable inferences when a party seeks to support two contradictory factual situations. From the tenor of defendant’s cross-examination of plaintiff and her witnesses, his own testimony and the arguments of defendant’s counsel, defendant denied any misconduct but then sought to justify his conduct by taking the position that whatever he had done was provoked by plaintiff. The possible consequences of such contradictions is evident.

So far as provocation is concerned it seems to be defendant’s position that so long as plaintiff either by word or deed contributed to the controversies then his response no matter how severe is justified. We are aware that arguments, disputes and the bitter recriminations which may take place between the parties to a marriage do not occur in a vacuum and seldom are completely one sided. However the concept of cruelty as a basis for divorce whether mental or physical contemplates that the propriety of the conduct be judged in light of all the circumstances including any precipitating conduct. (Hoffman v. Hoffman, 40 Ill.2d 344, 239 N.E.2d 792.) Whether defendant’s conduct was appropriate under the circumstances presented a question of fact and the jury’s resolution of this issue against him is supported by ample evidence.

Since it is our conclusion there is sufficient evidence to support the decree of divorce based on mental cruelty it is unnecessary to consider defendant’s other principal assignment of error namely that there is an insufficiency of evidence to justify the decree on the basis of physical cruelty. Nor do we believe it necessary to consider other points raised by defendant concerning the conduct of the trial since we believe no prejudicial error was committed.

Plaintiff has cross-appealed assigning as error that the amounts allowed by the trial court for attorney’s fees, child support and alimony are inadequate. We believe it would serve no useful purpose to detail the evidence regarding the finances of the parties but believe it sufficient to say that the awards are within the range of the evidence and hence the trial judge did not abuse his discretion.

For the foregoing reasons the decree of the circuit court of La Salle County is affirmed.

Decree affirmed.

ALLOY, P. J., and SCOTT, J., concur.


author: Mr. PRESIDING JUSTICE ALLOY

text:
    Carrie Williamson, Plaintiff-Appellee, v. Gerald Swank, Defendant-Appellant.
    (No. 71-38;
    Third District
    — November 22, 1971.

      Rehearing denied December 17,1971.

      Bozeman, Neighbour, Patton & Noe, of Moline, (Robert J. Noe, of counsel,) for appellant.
    Klockau, McCarthy, Schubert, Lousberg & Ellison, of Rock Island, (Peted H. Lousberg, and John R. Lewarne, of counsel,) for appellee.
   Mr. PRESIDING JUSTICE ALLOY

delivered the opinion of the court:

The cause before us originated from an incident in which plaintiff Carrie Williamson, a pedestrian, was struck by an automobile driven by defendant Gerald Swank at an intersection in the City of Rock Island on September 2, 1969. The action was tried by a jury and certain instructions were submitted by both plaintiff and defendant. The jury returned a verdict for defendant. The trial court, after consideration, granted a new trial on the premise that the court, in giving an instruction submitted by plaintiff as well as an instruction submitted by defendant, gave undue emphasis to the pedestrians duty when facing a yellow or red light.

At the conference on instructions, following the jury trial, defendant’s instruction 5-A, based on I.P.I. 60.01 detailed those portions of 1967 Illinois Revised Statutes, Ch. 9514, pars. 170 and 129 which provided that pedestrians are subject to traffic control signals at intersections, and also outlined a pedestrian’s obligations when facing a yellow and red traffic light. The instruction concluded by stating that if the jury decided Carrie Williamson, the plaintiff, violated the statute on the occasion in question, they could consider that fact, together with all the other facts and circumstances in evidence, in determining whether or not Carrie Williamson was contributorily negligent before or at the time of the occurrence. Plaintiff’s attorney objected to the last sentence singling out plaintiff by use of her name, and defendant withdrew the instruction stating that the name would be deleted and it would be changed to “a party”. The court indicated that such instruction would be given as so modified.

Plaintiff tendered instruction 12-A, which was also modeled on I.P.I. 60.01, which set forth the portions of 1967 Illinois Revised Statutes, Ch. 95%, par. 129, which outlined the obligations of both motorists and pedestrians, when facing green, yellow and red traffic lights. As originally tendered, plaintiff’s instruction 12-A stated that violation of the Statute could be considered in determining whether a party was negligent, but did not mention contributory negligence.

At the conference on instructions, plaintiff’s counsel objected to defendant’s tendered instruction 5-A for the reason that it had been altered to favor one party over the other and did not refer to the obligation of the defendant, but only to the obligations imposed upon plaintiff by Section 129 referred to. Plaintiff contended that instruction 12-A was complete in reciting both the duties and obligations of motorists and pedestrians at intersections and was a proper and accurate instruction which governed traffic control devices at the intersection referred to. It was contended at that time that the instruction completely set forth respective duties of plaintiff and defendant. The only objection to this instruction was that defendant had not included the words “contributorily negligent”.

The trial court then indicated that both instructions, i.e., defendant’s 5-A and plaintiff’s 12-A would be given. Plaintiff’s counsel objected to the giving of such instructions because of the undue emphasis placed upon the duties of a pedestrian, since such duties were repeated in both tendered instructions. It is on the basis of such repetition that the trial court ordered a new trial. The issue before this court, therefore, is whether the granting of a new trial by the trial court was erroneous.

On appeal in this Court, defendant contends that the giving of tihe two instructions was not erroneous since defendant was entitled to instruction 5-A to have the jury instructed on its theory of the case, i.e., the possible contributory negligence of plaintiff. Defendant also contends that plaintiff’s instruction 12-A was one-sided in that it omitted the contributory negligence aspect. Defendant contends that aU elements of the case were included in the two instructions, even though not included in defendant’s instruction 5-A. It is also contended that any error committed in the conduct of the trial was harmless, and further, that plaintiff could not complain of error which it is asserted plaintiff created.

The coruts of this State have frequently indicated that when a trial court exercises its discretion in ordering a new trial, such action should not be made a basis for reversal unless a clear abuse of discretion is affirmatively shown. As stated in Magnani v. Trogi, 70 Ill.App.2d 216, at 220:

“The purpose of vesting the trial judge with power to grant a new trial is to permit him, before losing jurisdiction of the case, to correct errors that he or the jury might have made during the course of the trial. Courts of review have repeatedly stated that they will not disturb the decision of a trial court on a motion for new trial unless a clear abuse of discretion is affirmatively shown. The reason for this rule is that the trial court has had the opportunity to consider the conduct of the trial as a whole, and therefore is in a superior position to consider the effects of errors which occurred, the fairness of the trial to all parties, and whether substantial justice was accomplished. * * * Greater latitude is allowed a trial court in granting a new trial than in denying a new trial. * #

The principle that trial courts are allowed a greater latitude in granting, rather than denying, a new trial has been emphasized many times. Courts of review are reluctant to review and reverse orders granting new trials and the power to do so is seldom exercised (Wagner v. Chicago Motor Coach Company, 228 Ill.App. 402, 404-406.) Reversal of such new trial orders is not directed unless the abuse is obvious or the trial court acted under a misapprehension or clearly erroneous understanding of the law. The fundamental principle is that a trial judge is allowed broad discretion in granting of a new trial and that his action in so doing will only be reversed where it affirmatively appears that he has clearly and palpably abused his discretion.

In Lombard Park District v. Chicago Title and Trust Company, 103 Ill.App.2d 1, the court upheld the principle of not disturbing the action of the trial court in granting a new trial, and stated that the trial court on reconsideration of its action, upon hearing the post-trial motion, correctly exercised such discretion. The court emphasized that the trial court is granted discretion in determining whether it should grant a new trial, and its determination will not be disturbed unless it is clearly shown that there was an abuse of such discretion. It is also emphasized that greater latitude is allowed a trial court in granting a new trial than in denying one.

Relating the principles applicable to review of the action of a trial court in granting new trials, we note that both plaintiff’s instruction 12-A and defendant’s instruction 5-A emphasized the duties of the plaintiff as a pedestrian. Defendant’s instruction 5-A did not cover the duties of a motorist but only the duties of the pedestrian, while plaintiff’s instruction 12-A covered the duties of both the motorist and the pedestrian, as we have indicated. In Noncek v. Ram Tool Corp., 129 Ill.App.2d 320 (cited by defendant and plaintiff), there were two burden of proof instructions, but both instructions were accurate. We concluded, in that case, that there was no reversible error under the circumstances. Defendant there insisted upon a second burden of proof instruction, and, since the first burden of proof instruction was complete in correctly defining plaintiff’s burden of proof, we did not believe it was consistent to reverse as the result of the giving of the second burden of proof instruction submitted by defendant.

In the cause before us, however, defendant’s instruction 5-A did not completely relate all statutory language governing intersection accidents, but specified only the duties of a pedestrian at an intersection. It omitted reference to duties of a motorist. As stated in Macak v. Continental Baking Company, 92 Ill.App.2d 63, 235 N.E.2d 855, referred to in the notes to I.P.I. 60.01, an instruction should not be modified so that it applies to one party only. The Macak case points out that an instruction on a statutory violation which singles out one party may be slanted, partial and argumentative and could constitute reversible error.

We have noted the case of Ryan v. Monson, 33 Ill.App.2d 406, 421-424, involving the rights of pedestrians.'In that case there were two instructions, one of which recited a Chicago City Ordinance outlining the duties of persons approaching a crosswalk, and the second attempted to outline the duties under the State statute. These instructions, as tendered by defendant and given, mention only the duties of pedestrians and failed to include provisions of the ordinance and statute requiring motorists to exercise due care to avoid collisions with pedestrians upon any roadway. The court there found both instructions improper because they failed to completely inform the jury of all obligations under the statute, and, also, because the giving of both constituted undue repetition. It was pointed out in that case that undue emphasis should not be placed upon obligations imposed on any particular party.

In view, therefore, of the principles relating to consideration of an order of a trial court granting a new trial by a court of review and on consideration of the instructions which were given, we do not believe that there was an abuse of discretion by the trial court in granting the new trial. We believe the trial court was right in concluding that the instructions gave undue emphasis to the duties imposed upon the plaintiff-pedestrian. The court had an obligation to instruct the jury properly, and, was in the best position to determine the effect of such repetition in the instructions on the jury.

We, also, do not believe that anything which has been presented to us on review indicates that the error was harmless. The basic issue before the court was whether or not plaintiff was guilty of contributory negligence and whether or not defendant was guilty of negligence. Undue emphasis on the duties of plaintiff, under the facts in the case, was not considered by the trial court to be harmless. We find no basis in the record for determining that such determination by the trial court was improper.

We likewise find no basis for reversing on the assertion that plaintiff induced the court’s error. Plaintiff had requested the giving of one instruction which, if modified only by the addition of a reference to contributory negligence would have been complete in adapting I.P.I. 60.01 to the situation in the instant case. Plaintiff also objected firmly to the giving of both instructions on the ground that it would unduly emphasize the obligations of plaintiff. We, therefore, do not believe that the facts in this case are parallel to Noncek v. Ram Tool Corp., supra.

For the reasons stated, the order of the Circuit Court of Rock Island County will be affirmed.

Judgment affirmed.

SCOTT and DIXON, JJ., concur.


author: Mr. JUSTICE SCOTT

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Robert Manuel Clay, Defendant-Appellant.
    (No. 70-159;
    Third District
    — December 6, 1971.

      James Geis, of Defender Project, of Ottawa, for appellant.
    Edward Drolet, State’s Attorney, of Kankakee, for the People.
   Mr. JUSTICE SCOTT

delivered the opinion of the court:

This is an appeal from the circuit court of Kankakee County.

The defendant, Robert Manuel Clay, pleaded guilty to the offense of armed robbery upon representation by the State’s Attorney that two other informations charging the defendant with the crime of armed robbery would be nolle prossed and subsequently these two additional in-formations were in fact dismissed.

In the armed robbery for which the defendant was convicted and in one of the other two armed robberies to which he admitted committing the defendant was armed with a sawed-off shotgun.

The defendant made application for release on probation and after investigation the probation officer filed a report recommending that probation be denied. After a hearing the defendant’s motion for probation was denied. A further hearing in mitigation and aggravation of the offense was had and the defendant was thereafter sentenced to an indeterminate term of imprisonment of not less than two nor more than six years.

The record discloses that at the time of the conviction the defendant was 18 years of age. He had a high school education but because of his age and inability to learn quickly enough the various jobs assigned to him his employment record is quite meager. Although not married the defendant acknowledged he is the father of a child born out of wedlock and there is evidence in the record that he contributed to the support of this child.

Prior to his arrest the defendant was a regular attendant at church and in fact was active in Sunday School and a member of the choir.

During the hearing upon the defendant’s motion for probation 16 witnesses including the defendant testified in support of his motion. The witnesses included two ministers, church associates, a Boy Scout Master, a high school principal, fellow employees, the defendant’s mother, his fiancee, and a gentleman who was both Clerk of the Kankakee School Board and an official with General Foods Corporation. This latter individual testified that if granted probation he would offer the defendant employment with General Foods as soon as he had an opportunity to do so.

The issues presented on appeal are whether the trial court erred in denying probation and whether the sentence imposed is excessive and disproportionate to the offense in its maximum term and thereby should be reduced.

Directing our attention to the issue regarding the denial of probation we find that our Criminal Code provides as follows:

“(a) A person who has been found guilty of any offense except a capital offense, the sale of narcotics or rape may be admitted to probation when it appears that

(1) The defendant is not likely to commit another offense;
(2) The public interest does not require that the defendant receive the penalty provided for the offense; and
(3) The rehabilitation of the defendant does not require that he receive the penalty provided for the offense * * Chap. 38, par. 117 — 1, Ill. Rev. Stat.

Examining these provisions we find it quite evident that the granting or denying of an application for probation rests within the discretion of the trial court. Therefore it is the trial court that has the burden of exercising its best judgment in determining whether or not the defendant is likely not to commit another offense, whether public interest does not require the incarceration of the defendant, and whether the rehabilitation of the defendant does not require the imposition of the penalty provided for the offense committed. The law is well settled in our state that the ruling of the trial court in the matter of denying probation will not be disturbed unless there has been a clear abuse of discretion. People v. Burdick, 117 Ill.App.2d 314, 254 N.E.2d 148; People v. Smice, 92 Ill.App.2d 83, 234 N.E.2d 47.

In the case before us the defendant produced a long list of witnesses, some of whom were prominent members in his community and all of them testified in support of his motion for probation. It is the contention of the state that the testimony of these witnesses was not convincing, but assuming that it was we are still confronted with the question as to whether or not the trial court abused its discretion. We believe not, for the defendant pleaded guilty to the grave charge of armed robbery and the weapon used during the commission of this crime was a most lethal one, being a sawed-off shotgun. Also in the record is the defendant’s statement that he was a participant in two other armed robberies and in one of them he was the bearer and wielder of the same dangerous weapon. We are cognizant of the fact that no one was harmed during the course of these crimes and it may well be that the defendant did not intend to “pull the trigger” if he met with resistance, but he nevertheless by his recldess and dangerous conduct exposed innocent people to grave bodily harm or possible death. It has been held to be within the discretion of the trial court to deny probation to a defendant who committed the crime of armed robbery even though the defendant had no prior felony conviction and voluntarily surrendered himself to the police after commission of the crime. (See People v. Bauswell, 120 Ill.App.2d 149, 256 N.E.2d 37.) It is not the prerogative of reviewing courts to substitute their judgment for the trial court, but instead the only question to be determined is whether or not the trial court’s denial of probation was an abuse of discretion. As previously stated, we find no such abuse in the case before us.

The defendant next asks this court to utilize that power given to it by Supreme Court Rule 615(b) (14) and thereby reduce the maximum term of imprisonment imposed by the trial court. It is the defendant’s contention that the sentence imposed is not commensurate with the offense charged and that further this court should consider his youthfulness, lack of criminal record, family responsibilities and employment opportunities.

In People v. Taylor, 33 Ill.2d 417, 211 N.E.2d 673, our Supreme Court stated:

“Reviewing court’s authority to reduce sentences imposed by trial courts where circumstances warrant should be applied with considerable caution and circumspection, since trial judge ordinarily has superior opportunity in course of trial and hearing in aggravation and mitigation to make sound determination concerning punishment to be imposed than do appellate tribunals.”

So while we are specifically granted authority to reduce sentences imposed by trial courts, we must exercise such power with caution and circumspection.

The record before us discloses that the trial court in imposing sentence specifically considered the youthfulness of the defendant but expressed the opinion that it was necessary for the defendant to rehabilitate himself and therefore the sentence of imprisonment would be not less than two nor more tiran six years. The two year minimum was in fact the minimum period of incarceration permitted to be imposed at the time the defendant was sentenced. The trial court in imposing the six year maximum sentence stated that it felt such a spread between the minimum and maximum was necessary in order for the defendant to demonstrate whether he could rehabilitate himself and thereby warrant an early parole.

We cannot question the wisdom of the ruling of the trial court for the sentence imposed is minimal for the crime of armed robbery. It is interesting to note that subsequent to the sentencing of the defendant our legislature has deemed it necessary to raise the minimum sentence in armed robbery cases from two to five years.

The American Rar Association Project on Minimum Standards for Criminal Justice urges the so-called three to one ratio sentence which in effect would provide that the maximum sentence imposed should be at least three times the minimum sentence so that the prison authorities and parole authorities shall have a greater opportunity to assist in a prisoner’s rehabilitation.

The sentence imposed by the trial court in our opinion is not only minimal but it reflects properly the three to one ratio recommended by the American Bar Association Project on Minimum Standards for Criminal Justice. Under such circumstances we would not be warranted in reducing the sentence imposed by the trial court. Accordingly judgment is affirmed.

Judgment affirmed.

STOUDER and DIXON, JJ., concur.


author: Mr. JUSTICE SCOTT Mr. JUSTICE STOUDER

text:
    Peoria Housing Authority, Plaintiff-Appellee, v. Norma Sanders, Defendant-Appellant.
    (No. 70-198;
    Third District
    — December 8, 1971.

      Rehearing denied January 3,1972.

      STOUDER, J., dissenting.
    Whitney Hardy, of Peoria, for appellant.
    David Mueller, of Peoria, for appellee.
   Mr. JUSTICE SCOTT

delivered the opinion of the court:

The plaintiff, Peoria Housing Authority, brought a forcible entry and detainer action against the defendant, Norma Sanders, for possession of premises occupied by the defendant. The action was based upon failure to pay rent. The defendant filed an answer, affirmative defense, and a counterclaim in which it was alleged that the plaintiff’s rental policy was unconstitutional and that damages based upon a retroactive recovery of rental payments made in compliance with the policy should be awarded. Subsequently the defendant withdrew her answer and affirmative defenses. The trial court granted possession of the rented premises to the plaintiff and ruled that the counterclaim did not state a cause of action and was further not germane to the distinctive purpose of the proceedings. It was from this order of the circuit court of Peoria County that the defendant appeals.

In this appeal the defendant has raised the following constitutional issues: (1) that the plaintiff’s statement of policy on modified fixed rents and income limits deprives the defendant of “life, liberty or property” without due process of law in violation of the fourteenth amendment to the constitution of the United States (U.S. Const., amend. XIV, Sec. 1) and section 2 of article II of the constitution of Illinois 1870 (Ill. Const. (1970), art. II, sec. 2); (2) that said statement of policy results in an invidious classification of the Authority’s tenants as proscribed by the equal protection clause of the fourteenth amendment to the constitution of the United States (U.S. Const., amend. XIV, sec. 1).

The defendant further argues that the plaintiff’s statement of policy on modified fixed rents and income limits contravenes the letter and spirit of the Illinois Housing Authorities Act (Ill. Rev. Stat. 1969, ch. 6772, par. 1 et seq.). The defendant also argues that if it is held that the counterclaim is not germane to the principal action under the Illinois Forcible Entry and Detainer Act (Ill. Rev. Stat. 1969, ch. 57, par. 1, et seq.) then said Forcible Entry and Detainer Act has denied the defendant procedural due process of law.

Refore we consider the constitutional issues raised by the defendant or consider the letter and spirit of the Illinois Housing Authorities Act we must first determine whether these issues are germane to the plaintiff’s principal action for possession.

Under the Illinois Civil Practice Act a defendant is generally empowered and encouraged to join in a principal action any claims or demands which he may have against the plaintiff.

“Subject to rules, any demand by one or more defendants against one or more plaintiffs, or against one or more codefendants, whether in the nature of set-off, recoupment, cross-bill in equity, cross demand or otherwise, and whether in tort or contract, for liquidated or unliquidated damages, or for other relief, may be pleaded as a cross demand in any action, and when so pleaded shall be called a counterclaim.” Ch. 110, Sec. 38 (1), Ill. Rev. Stat.

These apparent liberal provisions regarding joinder of actions are, however, limited with respect to a number of “extraordinary” proceedings which carry with them their own procedural restrictions which govern the filing of counterclaims. One of these extraordinary proceedings so limited is the Forcible Entry and Detainer Act.

“Section 1. Scope of Act.) The provisions of this Act apply to all civil proceedings, both at law and in equity, except in attachment, ejectment, eminent domain, forcible entry and detainer, garnishment, habeas corpus, mandamus, ne exeat, quo warranto, replevin, foreclosure of mortgages or other proceedings in which the procedure is regulated by separate statutes. In all those proceedings the separate statutes control to the extent to which they regulate procedure, but this Act applies as to matters of procedure not so regulated by separate statutes. As to all matters not regulated by statute or rule of court, the practice at common law and in equity prevails.” Ill. Rev. Stat. 1969, ch. 110, par. 1.

As a result of the foregoing language contained in the opening section of our Civil Practice Act we must direct our attention to the provisions contained in the separate statute governing procedure in actions of forcible entry and detainer.

“The defendant may under a general denial of the allegations of the complaint give in evidence any matter in defense of the action. No matters not germane to the distinctive purpose of the proceeding shall be introduced by joinder, counterclaim or otherwise: Provided, however, that a claim for rent may be joined in the complaint, and judgment obtained for the amount of rent found due.” Ill. Rev. Stat., 1969, ch. 57, par. 5.

It should be noted that in the case before us on review the only relief sought by the plaintiff in the forcible entry and detainer action was the recovery of possession of the premises which had been leased to the defendant. The Forcible Entry and Detainer Act has been in existence in our state for many years and the general rule of law is well established that the action involves solely the question of the right to restitution of premises of which one is unjustly deprived. See Woodbury v. Ryel, 128 Ill.App. 459; Truman v. Rodesch, 168 Ill.App. 304; Chicago Ry. Equipment Co. v. Wilson, 250 Ill.App. 231; Van Winkle v. Weston, 276 Ill.App. 66; Sauvage v. Oscar W. Hedstrom Corp., 322 Ill.App. 427, 54 N.E.2d 725; Burton v. Firebaugh, 344 Ill.App. 548, 101 N.E.2d 616.

The defendant contends that nothing could be more “germane” to an action in forcible entry and detainer than a determination as to whether or not the standard used by the plaintiff in determining its rentals was valid. We find the law to be clear in Illinois that the defendant cannot withhold her rental payments as determined under a lease and hope to procedurally use them as an offset in an action for possession. Excess rents, if any, paid by a tenant could not be considered as a defense in a landlords forcible detainer action to recover possession of her apartment after obtaining the requisite certificate from the area rent director. (Burton v. Firebaugh, supra.) Neither does the acceptance of late rental payments by the plaintiff present an issue for review. In the case before us this point was set forth in the defendant’s affirmative defense which was later voluntarily withdrawn; however, even if properly before the court the matter of the acceptance of such late rental payments would not have been properly interposed by way of defense to an action for possession. Geiger v. Brown, 167 Ill.App. 534.

Several cases are cited by the defendant in support of the contention that the counterclaim filed in the case before us was germane to the proceedings. (Those cases are as follows: Melburg v. Dakin, 337 Ill.App. 204, 85 N.E.2d 482; Allensworth v. First Galesburg N. B. & T. Co., 7 Ill.App.2d 1, 128 N.E.2d 600; and Rosewood Corp. v. Fisher, 46 Ill.2d 249, 263 N.E.2d 833.) In the Melburg case the defendant was permitted to assert an equitable defense, but a landlord-tenant relationship being involved the defense went to the heart of the paramount question, namely, the right to possession of the premises involved. The Allensworth case involved the right of the plaintiff to claim the real estate in question and the court held it proper for equitable relief to be permitted by the granting of the prayer of a counterclaim for an injunction. Again the direct question involved was one as to right of possession. In the Rosewood Corp. case the defendants were members of the Negro race who entered into installment contracts for purchase of rental properties. In discussing the Forcible Entry & Detainer Act our Supreme Court stated:

“Limiting ourselves to a consideration of the act only so far as it applies to contract purchasers of land, this case is, so far as we can ascertain, one of first impression in this court. It is our opinion that the defenses going to the validity and enforcibility of the contracts relied upon by the plaintiffs were germane to the distinctive purpose of the forcible entry and detainer actions and were improperly stricken. That purpose, to repeat, is to restore possession to one who is entitled to the right of possession. ‘Germane’ has been judicially defined as meaning ‘closely allied,’ and is further defined in Webster’s New Twentieth Century Dictionary, p. 767, as meaning: ‘closely related; closely connected; relevant; pertinent; appropriate.” Where as here, the right to possession a plaintiff seeks to assert has its source in an installment contract for the purchase of real estate by the defendant, we believe it must necessarily follow that matters which go to the validity and enforcibility of that contract are germane, or relevant, to a determination of the right to possession. This is particularly true for two reasons. First, because a contract buyer becomes the equitable owner of the property upon execution of an installment contract (Shay v. Penrose, 25 Ill.2d 447, 449, 185 N.E.2d 218,) and thus by such an action may be stripped of his equitable ownership as well as possession; second, the contract purchaser is faced not only with the loss of possession, but, unlike a tenant, trespasser or squatter, is likewise faced with the loss of the equity accumulated by payments made on the contract. Here, for example, the Fishers had paid approximately $10,000 toward satisfaction of their total contract obligations. On the other side of the coin, a contract seller claiming and seeking to enforce a claimed right of possession should not be permitted to prevail on the basis of such contract so long as its validity and enforcibility is questionable under the law. Should a contract purchaser not be permitted to defend upon the very contract upon which the seller relies, in our judgment the result could be, as argued, a direct denial of constitutional rights and an indirect denial of civil rights. We believe that contract buyers may plead equitable defenses and be given equitable relief if it is established that the contracts are unconscionable or in violation of civil rights as here contended. Cf. Horner v. Jamieson, 394 Ill. 222, 68 N.E.2d 287; Stein v. Green, 6 Ill.2d 234, 128 N.E.2d 743. * * *
It does not escape us that the construction we have placed upon the act may interfere with the summary aspects of the remedy, when it is invoked against contract purchasers. But the right of such purchasers to be heard on relevant matters, and to be secure in their constitutional rights, as well as the desirable purpose of preventing a multiplicity of suits, is, and must be, superior to the desire to provide a speedy remedy for possession.”

It appears clear that the Rosewood Corp. case has not scuttled the prompt remedy provided in the Forcible Entry and Detainer Act but on the contrary again the counterclaims must show a defense which is germane to the question of the right to possession. It is also apparent that our Supreme Court has differentiated between cases involving lessees, renters, and those involving purchasers.

From an analysis of the cases it is clear that the defendant by counterclaim to an action for possession may assert a paramount right to possession, may deny the breach of any agreement vesting possession in the plaintiff or may even question the basis upon which the plaintiff’s right to possession is founded. In the instant case the defendant’s counterclaim pursues none of these avenues but instead seeks declaratory relief and money damages which have no real relation to the possessory rights of the parties. We therefore find that the issues raised by the defendant’s counterclaim are not germane to the plaintiff’s action in forcible entry and detainer.

The defendant next argues that if the counterclaim is held not to be germane to the plaintiff’s action then Section 5 of Chapter 57 of the Illinois Revised Statutes is unconstitutional in that it denies the procedural due process of law as provided by our State and Federal constitutions.

Due process does not mean a particular procedure but rather requires only that certain safeguards exist in whatever procedural form is afforded. These safeguards are described in detail in People v. Niesman, 356 Ill. 322, 190 N.E. 668, when the court stated:

“Due process of law implies the administration of equal laws according to established rules, not violative of the fundamental principles of private right, by a competent tribunal having jurisdiction of the case and proceeding upon notice and hearing. McGehee on Due Process of Law, p. 1. The guaranty of due process of law requires that every man shall have the protection of his day in court and the benefit of the general law, — a law which hears before it condemns, which proceeds not arbitrarily or capriciously, but upon inquiry, and renders judgment only after trial, so that every citizen shall hold his life, liberty, property, and immunities under the protection of the general rules which govern society.”

The fourteenth amendment prohibits the state from denying any person life, liberty or property without due process of law, but this adds nothing to the rights of one citizen as against another. (United States v. Cruikshank, 92 U.S. 542, 23 L.Ed. 588.) The amendment in no way undertakes to control the power of a state to determine by which process legal rights may be asserted or legal obligation be enforced, provided the method of procedure adopted for these purposes gives reasonable notice and affords fair opportunity to be heard before the issues are decided. Iowa Central Ry. Co. v. State of Iowa, 160 U.S. 389, 16 S.Ct. 344, 40 L.Ed. 469.

The refusal of the State of Illinois to allow the joinder of non germane claims in proceedings for the restoration of possession to real estate merely precludes the defendant from one procedure without closing the door on any other substantive rights she may possess. The defendant has available other procedures which lead to an impartial forum where any substantive rights she may possess can be determined. Due process requires nothing more and we therefore find that the Forcible Entry and Detainer Act of the State of Illinois (111. Rev. Stat., ch. 57, par. 5) is not unconstitutional on the basis that it denied procedural due process of law as required by our State and Federal constitutions.

For the reasons herein set forth the order of the circuit court of Peoria County is hereby affirmed.

Judgment affirmed.

ALLOY, P. J., concurs.

Mr. JUSTICE STOUDER

dissenting:

I do not agree with the majority of the court. In my opinion the issue raised was appropriate in a Forcible Entry and Detainer Action.

First a few words about the controversy disclosed by the counterclaim. Among the programs of the Peoria Housing Authority, a governmental agency, is the ownership and rental of property to persons with low incomes. Defendant’s income was sufficiently low that she qualified under the Housing Authority’s program and an apartment was rented to her. The rent was established by the Authority on the basis of defendant’s income and expenses. According to the regulations of the Housing Authority the amount of the rental was reconsidered annually and adjusted up or down depending on changes in the tenant’s income and expenses. Adjustments in the rent could only be made annually unless the tenant’s income deceased at least twenty-five percent from that at the time of the determination of the rent.

Defendant’s income decreased substantially during the year but the decrease did not amount to twenty-five percent. Although tenant requested a modification of the rent the Authority declined, relying on its rule, and, in due course, when tenant was unable to pay the full amount of the rent this action in Forcible Entry and Detainer was instituted.

According to the defendant as alleged in her counterclaim, the rule of the Authority regarding reconsideration of rent only if income decreases twenty-five percent is contrary to the purpose of the low rent housing program and is arbitrary and unreasonable. The Housing Authority on the other hand contends that readjustment of the rent oftener than once a year is impractical and that the twenty-five percent decrease requirement is reasonable and not arbitrary.

The majority did not reach the merits of the case because of its preliminary determination that defendant’s claim was not properly raised in a Forcible Entry and Detainer Action and I likewise offer no opinion on the merits. The question of whether the issue was properly raised does depend upon its nature and the rule of the Authority regarding reconsideration and adjustment of rentals in accord with decreased income of the tenant is what is referred to by the majority as the rental policy and the basis of the dispute.

Of the cases cited by the majority in support of the limited nature of the Forcible Entry and Detainer Action, four cases, Woodbury v. Ryel, 128 Ill.App. 459; Truman v. Rodesch, 168 Ill.App. 304; Van Winkle v. Weston, 276 Ill.App. 66 and Geiger v. Brown, 167 Ill.App. 534, involve actions for possession based on non-payment of rent. They are generally in accord with the following views as set forth in the Truman case, “The covenant to pay rent was not upon the condition that plaintiff comfortably heat said premises, but was a separate and independent covenant; and when he failed to perform it, the landlord had the right, after notice and demand, to declare the lease forfeited, and to sue for possession. ‘The whole question in actions of this nature is, does the defendant unlawfully withhold possession of the premises sought to be recovered in the action.’ (Woodbury v. Ryel, 128 Ill.App. 459.) If this was an action for recovery of the rent, a different question would be presented. Appellant argues that he should have been permitted to make said defense, on the grounds that it would prevent a multiplicity of suits, which is favored in law, but the legislature of this and many other states has seen fit to provide this summary proceeding solely for obtaining possession of real estate, regardless of the question of the amount of rent due or damages sustained. This act has been in existence too many years, and our courts have dealt with it too long, for us now to declare it ineffectual for the purpose intended.”

In my view, recognizing the present controversy as appropriate in a Forcible Entry and Detainer Action is well within the limited scope of the action according to the rules of the older cases mentioned before, is within the limits of the present statutory proceedings and is within the scope of the Act in accord with recent precedents and trends.

First of all if, as in the Truman case, possession is sought for nonpayment of rent, certainly the question of whether the rent has or has not been paid is an appropriate issue. In order to determine the fact of payment the amount of the rent due or the proper determination thereof would appear to be indispensable issues and indeed this is the issue which the defendant sought to raise in this case. If the lessee’s failure to make required payments is the result of a demand of the lessor for amounts due in excess of those specified it seems to me that an issue is presented which must be and is appropriately resolved before the right of possession can be ascertained.

In the second place, the special limited purpose of the Forcible Entry and Detainer Action was historically a concomitant of the inflexible and highly technical common law pleadings system. The summary nature of the proceeding was dictated and required in large measure because of the absence of other procedures such as the present summary judgment procedure which could grant effective relief promptly. There is little doubt that the Civil Practice Act of 1933 represented a substantial change in the philosophy underlying practice and procedure and in particular it liberalized the joinder of actions and defenses. The present Forcible Entry and Detainer Act (Ill. Rev. Stat. 1969, ch. 57, par. 5), provides, “The defendant may under a general denial of the allegations of the complaint give in evidence any matter in defense of the action. No matters not germane to the distinctive purpose of the proceeding shall be introduced by joinder, counterclaim or otherwise: Provided, however, that a claim for rent may be joined in the complaint, and judgment obtained for the amount of rent found due.” The Civil Practice Act of 1933, excepted its application to some special statutory actions including the Forcible Entry and Detainer Action. In 1935, the Forcible Entry and Detainer Act was amended to provide that except where contrary to the provisions of the Forcible Entry and Detainer Act the Civil Practice Act would apply. At the same time Sec. 5 of the Act was amended by adding the proviso, “* * * No matters not germane to the distinctive purpose of the action shall be introduced by joinder, counterclaim or otherwise.” By enacting this proviso the General Assembly appears to have intended some restriction on the joinder of actions and consequently the issues which could be raised in a Forcible Entry and Detainer Action but the language itself suggests that germaneness to the distinctive purpose of the Act was to be determine with due regard for existing procedures as well as historical precedents.

Of more importance to the present case is the additional proviso enacted by the legislature in 1937 which added in part of present Sec. 5 which provides, “* * * a claim for rent may be joined in the complaint, and judgment obtained for the amount of rent found due.” This added provision may be regarded as a legislative declaration expanding the distinctive purpose of the Act and the issues which may be germane thereto. Permitting a claim for rent to have been joined with the possessory action would have been contrary to the procedures in effect at the time of the Truman v. Rodesch, 168 Ill.App. 304 and Woodbury v. Ryel, 128 Ill.App. 459 decisions, and to that extent the persuasive authorities of the earlier decisions is reduced. It should be remembered that in such earlier cases the court concluded that such excluded defenses would have been properly urged in actions seeking to collect rent.

If claims or actions for rent may now be properly joined to the possessory action as provided in Sec. 5, then defenses thereto may also be joined even if no claim for rent is actually made. To hold otherwise would permit the issue of germaneness to be dependent upon the whim or discretion of the plaintiff. In other words I do not believe that the conduct of the plaintiff in failing to seek a judgment for rent can thereby render the defendant’s defenses non-germane.

Thirdly, in Rosewood Corp. v. Fisher, 46 Ill.2d 249, 263 N.E.2d 833, the court concluded that the “validity and enforcibility” of the sales contract were germane to the distinctive purpose of the Forcible Entry and Detainer Action. The majority distinguishes the Rosewood case on the basis that it involves a possessory action to recover real estate sold on an installment contract. I do not believe that the case is susceptible to such distinction. The validity and enforcibility of a lease or tenant relationship is just as germane to the purpose of the possessory action as in the case of a real estate installment contract.

Melburg v. Dakin, 337 Ill.App. 204, 85 N.E.2d 482 and Allensworth v. First Galesburg N.B. & T. Co., 7 Ill.App.2d 1, 128 N.E.2d 600, cited but distinguished by the majority, are indicative of a trend toward the expansion of the Forcible Entry and Detainer Action. Concededly the facts are sufficiently dissimilar in each of the cases to distinguish them from the case at bar but to the extent that they permit equitable defenses to be raised even without relying on the Civil Practice Act, the conclusion is evident that the purpose of the action is changing in accord with changes in other procedures.

Finally it should be observed that this action was not commenced by an individual or business but by a government agency acting in accord with its rules and regulations. These conditions or circumstances create a new and substantially different situation. The distinctive nature of the Housing Authority’s character and its contractual relationships with its tenants is well illustrated by the recent case of Chicago Housing Authority v. Harris, Gen. No. 41970, 49 Ill.2d 274, in which the court sustained and approved the defendant tenant’s position that the Authority’s failure to hold an administrative hearing prior to termination of the tenancy for cause was an appropriae defense. The defense was made in a Forcible Entry and Detainer Action and the issue of its proper joinder was not even discussed.

In conclusion I believe that both the statute and the precedents including those cited by the majority, provide adequate authority for holding that the defendant’s claim was properly raised in this possessory action. Furthermore, although the majority alludes to possible alternative actions which the defendant might have pursued, no particular actions are specified. In considering the nature of the controversy and the situation of the parties it seems to me that this action is particularly appropriate and I have some difficulty in conceiving what other alternative actions would be adequate and practical.