author: Mr. JUSTICE DIXON

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Johnnie L. Ellis, Defendant-Appellant.
    (No. 73-292;
    Third District
    December 30, 1974.

      Braud, Warner & Neppl, of Rock Island (Marvin W. Gray, of counsel), for appellant.
    David DeDoncker, State’s Attorney, of Rock Island (F. Stewart Merdian, Assistant State’s Attorney, of counsel), for the People.
   Mr. JUSTICE DIXON

delivered the opinion of the court:

After a jury trial the defendant was found guilty of armed robbery and sentenced by the Circuit Court of Rock Island County to a term of not less than 4 nor more than 5 years. He appeals contending (1) that the identification procedures denied him a fair trial and (2) that the State failed to prove him guilty beyond a reasonable doubt.

On February 3, 1973, at about 7 A.M., Randy Camithan, a 17-year-old high-school senior, who was working alone as an attendant on the 12-midnight-untiI-8-in-the-moming shift at the Clark gasoline service station located on 7th Avenue between 26th and 27th Streets, in the city of Rock Island, Rock Island County, Illinois, was robbed of approximately $40 which he had in his front pocket, and, in addition, about seven rolls of pennies and some loose quarters, dimes, and nickels were taken from a desk drawer.

At the time of trial, Randy Camithan testified, describing the robber as being a black person, a little shorter than he, and heavier than he, wearing a light overcoat and a purple-colored shirt and colored designs in his pants; that the pants were different colors. The robbers hair was neat, and he had something in his mouth like cotton or a handkerchief stuck up under his lip. The robber was armed with a black revolver, with a barrel 2 or 3 inches long. The man said, "Get in the back room”, asked for the money, and upon being given $40 asked if there was anything more, and was told there wasn’t. He then told Randy Carnithan to lay down on the floor, which Randy did. The robber then put the money in a brown paper bag, like a lunch bag, which he had in his pocket, closed the door between the front and back room of the service station, and left. When Randy Carnithan heard the front door close, he opened the inner door, ran to the door, looked out and saw the robber running away to the east and behind the gas station. Randy Carnithan then called the police. He saw the robber, whom he identified at trial as the defendant, in the back of the police car about 15 or 30 minutes later and identified the defendant right away as being the robber, without the police asking him anything.

Randy Carnithan testified that the robber did not have a moustache; that at the time the trial was held, the defendant looked the same except for his moustache and clothes.

Randy Carnithan further testified that, when he had called the police station to report the robbery, he said that the robber was black; about 6 feet tall, weighing about 160-165 lbs., had on a long white coat, purple-color shirt and print colored pants. On cross-examination, Randy Carnithan stated that tire robber seemed to weigh 160 to 165, could not have been 260 or 200 or 225 lbs; that he had neat, short hair; that Randy Carnithan had no trouble seeing the moustache of defendant as shown by a picture taken of the defendant on February 6, 1973.

When Randy Carnithan first identified the defendant as the robber, when the defendant sat in the back seat of the police squad car, he was 6 feet away from him and 3 feet away from the automobile. The defendant at that time did not have cotton in his mouth.

The denomination of the money taken, as testified to by Randy Carnithan, was: quite a few ones; two or three fives, one or two tens, and about seven rolls of pennies.

Freeman Hunter, a butcher employed at the A & P, was waiting in his car in the parking lot of A & P to go to work at 7 A.M. on February 3, 1973. His car was parked facing north. .While he,-sat there, a car went past on his left side, through the' parking lot, toward the town of Rock Island, at about 40 to 45 miles per hour. The car had a black top and was goldish, with a dent in the front right fender on the passenger side. It did not stop at the driveway before proceeding out on the street. The car went west from the east. Mr. Hunter did not see the occupants. When he was later shown a car by the police officer, he told him that he was not sure whether or not that was the car. He doesn’t know whether he is color blind or not. He is a little bit nearsighted.

Kathryn Wise, the Rock Island police clerk, testified that she took the original complaint over the phone on an IBM card; that the robber’s plaid pants were shown on the card in parentheses as being yellow, black, tan, but that is a mistake; that those colors refer to the color of the car. She later that same day typed up the information from the original card on a card, People’s exhibit 5, but does not know how long the original cards are kept; that she did not realize that “yellow, black or brown” was the wrong color for the pants, until after it was called to her attention by Detective Coleman before a hearing held in the latter part of May.

Larry Requet, a Rock Island police officer, testified that he was alone in a squad car on February 3, 1973, at approximately 30th Street and 14th Avenue, in Rock Island, when he received a message over the radio that there had been an armed robbery at the Clark service station at 7th Avenue and 27th Street; that he was told to look for a gold-color car with a dent in the fender; that tire description of the robber, which he had, was a male Negro, wearing a brown coat, purple shirt and plaid pants. Officer Requet saw a car of that description driven by a person matching this description at 9th Street and 6th Avenue in the city of Ro.ck Island. Hiere were two Negroes in the car. He followed the car, and pulled alongside it at a stoplight to observe the dent in the right side fender. The car he was following, then went to 910 14th Avenue. The driver got out and went in the house for about 30 seconds, and Officer Requet, who had parked his squad car on 14th Avenue, west of 9th Street, went past the car to 10th Street and 14th Avenue, and stopped and waited until the driver came out of the house and got in the car and drove east on 14th Avenue to 10th Street, made a left on 10th Street in front of the squad car, and the squad car followed it. The car headed west on 13th Avenue toward 9th Street, and made a right-hand turn on 9th Street and 13th Avenue, going through a stop sign. Officer Requet followed the car from there to 9th Street and 3rd Avenue, where the car turned east to go to 11th Street and pulled over. Officer Requet testified that he pulled his squad car in behind the car he had been following, and placed the driver under arrest for running a stop sign. Two other squad cars also pulled up there, one driven by Sergeant Ferguson and the other by Hartman. Sergeant Ferguson then got into the squad car with the defendant, Johnnie L. Ellis, and Officer Requet, and they headed east down 3rd Avenue. Sergeant Ferguson advised the defendant orally of his Miranda rights. They then headed for Clark' service station, and as they pulled up, the attendant ran out to the car and yelled, “They got him.” Officer Requet testified that the attendant, he believes, was yelling to someone else, another attendant. At this point,. Sergeant Ferguson, Officer Requet testified, placed the man under arrest for armed robbery. Then Officer Requet testified that he got out of the car and asked the fellow to be positive. He looked in and said, “Yes, this is the man.” The defendant was then taken to the police station and booked. People’s exhibits 2, 3 and 4 are the clothes taken from the defendant.

On cross-examination, Officer Requet testified that at 7th Avenue and 9th Street he was sure he had the right car, but he was not sure he had the right person until the person got out of the car at 14th Avenue and he saw his clothes. At an earlier hearing, Officer Requet said he didn’t make the arrest at that time because he was alone. When Mr. Ellis pulled up in front of the house on 14th Avenue and got out of his car and went into the house, Officer Requet parked his squad car on the same street to watch him, and another squad car, his backup car, pulled up behind Officer Requet. Before Mr. Ellis came out of the house, there were .two policemen there, two squad cars. Officer Requet testified that in his squad car, he then followed Mr. Ellis from 9th Street and 13th Avenue to 3rd Avenue and 11th Street, where Mr. Ellis stopped and got out of his car, before Officer Requet arrested him for passing a stop sign at 9th Street and 13th Avenue. The defendant was wearing a hat when he was arrested. Officer Requet testified that he did not see defendant carry anything into the house at 910 14th Avenue.

There is no testimony that any search was ever made of the house into which defendant went, for any evidence from the robbery. At the time of defendant’s arrest, he was driving the car and accompanied by another black person. The other person was not placed under arrest. He was left there. Officer Requet testified that Mr. Ellis was taken over to the gas station to see if the victim could identify him. Mr. Ellis was not put in a lineup before he was taken over for Randy Camithan to see him. Officer Requet testified that he does not know if there were any fingerprints taken from the cash drawer or any other part of the gas station. There were no other black persons in the squad car other than Mr. Ellis at the time that Mr. Camithan said “They got him.” He doesn’t know if Mr. Ellis was wearing a hat at the time the police pulled in in the squad car. Sergeant Ferguson was in the back seat with Mr. Ellis. Mr. Boyd, who was with the defendant at the time of defendant’s arrest, did not fit any description that Officer Request had received concerning this armed robbery. Officer Requet testified that the reason he did not make an arrest before he did was that he was waiting instructions from his Sergeant, Ferguson, who was behind him. He was in radio contact with him.

On redirect examination, Officer Requet testified that he was not afraid when he was alone at the time he saw the defendant leave the car and enter the residence, but he didn’t want to get hurt, and he wasn’t sure if he had anybody close enough that could back him up.

James A. Ferguson testified that he is a sergeant on the' Rock Island police force; that on February 3, 1973, at approximately 7:12 A.M. he was in the radio room at the police station when the call came in and he related some of the information to the cars on the street; that he then got in his squad car and proceeded to 17th Street and 6th Avenue, making a general check of the area. He met Officer Requet at 9th Street and 7th Avenue. As Officer Requet went south on 9th Street, he went north on 9th Street. After Officer Requet radioed, he proceeded to 9th Street and 12th Avenue, on a parallel course. He drove to 10th Street and 14th Avenue where Officer Requet was stopped. Sergeant Ferguson testified he saw a black-vinyl-top and gold-bottom Chevrolet parked in front of 910 14th Avenue. He radioed Officer Swank, who was still at A & P, and asked for a complete description of the car, and asked if he could identify the car. Officer Swank started to give it to him. At this time a subject entered the car and started the vehicle up and drove away. Sergeant Ferguson was about one-half a city block away when this happened. Officer Requet was directly in front of him. Sergeant Ferguson cannot describe the individual he saw. The individual drove away, making a left-hand turn on 10th Street, and headed north on 10th Street from 14th to 13th Avenue. Sergeant Ferguson was stopped and wrote down the information that Officer Swank was conveying to him by radio. After Officer Swank related the information, Sergeant Ferguson felt that it was possible it was the suspect in question. When Officer Requet radioed that he was going to make a traffic stop on the car, Sergeant Ferguson was still parked at 10th Street and 14th Avenue. Sergeant Ferguson saw Officer Requet follow the car, but he didn’t follow Officer Requet. Sergeant Ferguson then proceeded to the location where Officer Requet said he was stopped, which was 11th Street and 3rd Avenue. Officer Requet had the car stopped and had two suspects out of the car. Sergeant Ferguson got out of the car and assisted Officer Requet. Sergeant Ferguson asked the passenger of the vehicle for identification. He identified himself as Wayne Boyd. Sergeant Ferguson does not recall having any conversation with the driver of the vehicle. At this time, Sergeant Ferguson believes that Officer Requet issued a traffic ticket to Johnnie Ellis. Then Officer Requet and he discussed the information that they had on the armed robbery, and they felt that it was very possible that Mr. Ellis fit the description of the subject, and he was placed in a squad car and driven to the Clark station. On route to the Clark station, Mr. Ellis wanted to know what was going on, and Sergeant Ferguson told him that they had just had an armed robbery at the Clark station on 27th Street and 7th Avenue, advised him of his rights verbally, and told him that anything he said could be used against him, that he had the right to remain silent, and that, upon being questioned, he had the right to have an attorney. They arrived at the Clark station, and as they pulled into the driveway, Randy Carnithan, the complainant, was standing in the driveway, and he pointed a finger at the squad car and said, “That’s him; that’s him.”

On cross-examination, Sergeant Ferguson testified that he did not instruct Officer Requet to stop Mr. Ellis; that Officer Requet did it entirely on his own; that Officer Requet had stopped Mr. Ellis and Mr. Boyd, and had them out of the car when he got there. Sergeant Ferguson testified: “It is not on my report that the ticket was issued. I do not have a right sheet with me. I did use one when I gave Mr. Ellis his rights. I did not give him all his rights. I advised him of his right to remain silent; that he had the right to have an attorney present during the questioning, and any statements that he made could be used against him. Mr. Ellis had the right to have an attorney present during lineups. He has the right to have an attorney. If he cannot afford one, one will be appointed by the court. I did not advise Mr. Ellis that he was a suspect in an armed robbery, and I was going to place him in a lineup, and he could call his lawyer.” Sergeant Ferguson testified that he knows what a lineup is; that he did not conduct a search of Mr. Ellis prior to the time he placed him in the squad car that took him over to the station; that he does not know if he was searched, but doesn’t believe so; that he rode in the back seat with Mr. Ellis, a man that he thought committed an aimed robbery. However, he believed that Officer Requet searched him. Officer Requet was driving the car, and Sergeant Ferguson was sitting in the back seat alone with Mr. Ellis. Sergeant Ferguson testified that he kept defendant in his custody until he took him to the police station; that he searched, him again and removed all of his personal belongings. Sergeant Ferguson testified that he did not find a gun and did not find a roll of pennies, and did not find any money that matched the denominations of the currency that the person said was missing; that he never made an investigation to find any fingerprints, and knows no one in his department who found any evidence whatsoever that connected Mr. Ellis with this offense other than Mr. Camithan’s statement. Ferguson testified: “I did not and I know of no one else who searched the house that Mr. Ellis went into. I did not talk to the person there. I don’t know whether Mr. Ellis left the gun or the money there. I don’t know anything except that one man said this man committed an armed robbery. He brought him down for identification.”

John Ellis testified that he is 23, and on February 3, 1973, was arrested at 3rd Avenue and 11th Street; that at the time he was arrested he did not have a gun in his possession or any rolls of pennies. That he had his wallet and keys and $48, consisting of four tens and a five and three ones; that he did not have upwards of 12 to 17 or 18 one-dollar bills in his possession. Johnnie Ellis testified that he saw a police officer following him that morning; that he spotted the officer at 4th Avenue and 9th Street in Rock Island, when he was traveling south on 9th Street; that he continued down 9th Street, and that the police car was about one car length away, immediately behind him; that he did not get out of the car at any time prior to his arrest, except at 14th Avenue and 9th Street. Johnnie Ellis testified that the windows of his car were up and he did not throw anything out of the car; that he remained at the house on 14th Avenue less than a minute; that he did not take anything with him and did not bring anything out with him; that he saw the police cars when he came out; that they were on both comers of 14th Avenue. Johnnie Ellis got back in his car and continued down 14th Avenue and made a left at 10th Street and another left at 13th Avenue and stopped at the stop sign and made a right and continued back down 9th Street. Defendant testified that he is sure he stopped at the stop sign at 13th Avenue and 9th Street because he had noticed them following him from 4th Avenue, and he got a little nervous; that he was wondering why they were following him, and he was being very cautious. After he stopped at the stop sign, he made a right down 9th. Street. The police car followed him, and he did not speed or do anything else to give the police an excuse to stop him. His friend, Wayne Boyd, who was in the car with him, lives at the apartment building on 3rd Avenue and 11th Street, where he stopped. Defendant testified that he first saw Wayne Boyd about 5 minutes to 7 that morning at his apartment; that he went to his apartment, went inside and left with him about 20 minutes after 7, and went to 14th Avenue and 9th Street. Defendant testified that to his knowledge Wayne Boyd did not have a gun, coins, or any other items that might be connected to this armed robbery in his possession at any time. Wayne Boyd’s girl friend was at his house. Defendant testified that he has not seen the traffic ticket he was given for running a stop sign at 13th Avenue and 9th Street; that he was never handed one, and has never received it; that he has no felony record.

On cross-examination, defendant testified that he arrived at Wayne Boyd’s apartment 7 o’clock; that Wayne Boyd’s girl friend’s name. is Diane Teague. Defendant testified that he drove, a ’72 Monte Carlo, black-vinyl-top, burnt-orange automobile; that he had on a purple shirt, blue-and-white slacks, a brown single-breasted cashmere coat, buckled dark-brown. Hush Puppies, and a dark-brown suede hat; that he remained at the apartment of Wayne Boyd about 20 to 23 minutes; that he had $48 and some change with' him; and that, at the time, he was unemployed. Defendant also testified that he worked part-time with his father, the last time being the week prior to February 3, 1973. The apartment where he stayed with Johnnie Jenkins from time to time is in her name and she pays the rent. There was a dent on the right fender and on the left rear of his car. Defendant testified: “Dean Johnson lived at the address where I went to. on 14th Avenue and 9th Street. I saw a police officer’s car following me while I was on the way to this house. There was one officer in the car. I was in the residence less than a minute. I was looking for Miss Dean Johnson’s ex-husband. When I came out I saw two police cars there. When I drove away, both cars followed me. I came out and continued down 14th Avenue and made, a left at 10th Street and made another left at 13th Avenue and stopped at the stop sign and made a right and went back down 9th Street. I was arrested for the stop-sign violation at 3rd Avenue and 11th Street. I stopped at 3rd Avenue and 11th at Wayne’s apartment. I got out of the car. I did not get out of the car because the officer told me to. I just got out. I had a conversation with the officer at this time. As me and Wayne was getting ready to go into the apartment building, he called me over to the car. He asked me did I see that stop sign back at 13th Avenue. I said, ‘Yes. I stopped for it.’ He said, ‘No, I didn’t.’ He said I ran it, and I told him he was mistaken. He told me to get into the car. I got in the car, and he said he was going to write me a ticket. I got a little upset about it. I told him I didn’t run a stop sign, nor was I speeding. They didn’t accuse, me of speeding. I did not use profanity. I was put in the car, and another police officer came and sat in the back with me, and I asked him what was wrong, and he asked where I came from, and I told him, ‘Right here, from Wayne’s house.’ He asked me if I had been up to the Clark station by A & P, and I told him, ‘No,’ and that’s it. He didn’t say anything else to me. He advised-me of my rights after we went down to the service station. I was not given my rights on the way to the service station. They .may have said it, but I was toó busy asking what was wrong. But I do remember it was at. the .Clark station they give me my rights. When I arrived at the Clark station, I was seated in the back seat of the car. Sergeant Ferguson was back .there with me.' Officer Requet drove the car. When I arrived at the service' station, Officer Requet drove in and this guy, Mr. Carnithan, said ‘That’s him.’ I got upset, and I said ‘What is he talking about?’ They said something about armed robbery. I said, ‘No, he is mistaken.’ I asked Mr. Carnithan, I said, ‘Take a good look at me; you gotta be wrong.’ He said, ‘No.’ He was telling Officer Requet, he said, ‘That’s him.’ Tasked Sergeant Ferguson if I could get out of the car so he could look at me. He was about 10 feet away when he said, ‘That’s him.’ He bent down and looked through the car. I was sitting between the officer and Mr. Carnithan. He said, ‘That’s him’ as soon as we drove up. I don’t remember the officer asking Mr. Carnithan if he were sure. I am 5 feet 10. I weigh 220. They told me I was under arrest for armed robbery at both the Clark station as we were driving off and the police station. I have not talked with anyone concerning what happened except Mr. Braud. I have not talked with Johnnie Jenkins about it, nor Wayne Boyd. My appearance has not changed since the incident took place until today. I am still in the same physical condition, height, weight, everything.”

On redirect examination, defendant testified that he did not speak with Mr. Boyd about it because Mr. Braud instructed him not to. The money Mr. Ellis had with him was his money.

Diane Richardson testified on direct examination that she lives at 1028 3rd Avenue, knows Wayne Boyd; that he is her boyfriend and lives with her at the address she gave. On February 3, 1973, John Ellis came to her house about 7 o’clock. He was alone. He stayed until about 7:30. Wayne Bold was there. She was interviewed by the police shortly after this happened, when John Ellis was in jail. She told the police then more or less what she testified to at trial, that she had no opportunity to speak to John Ellis, nor to Braud, defendant’s attorney; that she had not spoken to anyone else prior to the time she spoke to the police about this.

On cross-examination, Diane Richardson testified that she has been known as Diane Teague; that defendant and Wayne Boyd left the apartment about 7:30. Defendant got to her apartment when she was asleep. When he knocked at the door, she glanced at the clock, and it looked like it was 7 o’clock. She stayed in bed in the bedroom, and' they talked in the kitchen. The door between the bedroom and kitchen was open, but there are curtains over the door. She remembers looking at the clock when Mr. Ellis left, but she doesn’t know why.

Johnnie B. Jenkins testified that on February 3, 1973, in the early morning hours, she saw Johnnie Ellis at five minutes before 7 a.m.

On cross-examination, Johnnie Jenkins testified that defendant had been at her house all night She particularly remembers his leaving because she really didn’t want him to go. He said he would be right back, and she made a point of looking at the clock. Mr. Ellis said he was going to Wayne Boyd’s house. She supposed he could have gone someplace else. She owns a gold automobile which has a black-vinyl top and gold bottom. At that time it had a dent in the right front fender.

In rebuttal, Katie Wise testified that she participated on February 3, 1973, in a booking procedure of defendant. After refreshing her recollection from People’s exhibit No. 6, she recalled the height given to her by the defendant was 5 feet 11 inches, the weight, 185, and his occupation: unemployed; and the amount of cash he had on his person: $45, and she does not remember what amount of change.

On cross-examination, Katie Wise testified that when she is on duty she books all the people, five days a week. She is confident that she transferred the information correctly from what it was originally written on to the typed card. Nobody weighed Mr. Ellis at that time. There are no scales or height markers at the booking window. She does not remember, and the booking records do not indicate, the denomination of the bills taken from Mr. Ellis. She remembers unusual things, such as someone having a couple hundred dollars. This amount is not unusual. If Mr. Ellis’ $45 was in the form of 17 one-dollar bills or 16 one-dollar bills and rolls of pennies, she would not have remembered the one-dollar bills, but you don’t often have rolls of pennies in people’s pockets. She does not recall anything as to the denomination in any way, shape, or form.

Vince Perez, a deputy sheriff, testified on surrebuttal in behalf of defendant that he had weighed John Ellis over at the county jail approximately 10 minutes before trial, and Mr. Ellis’ weight was 202 pounds, on the scales used for the county’s official weighing records.

On cross-examination, Mr. Perez testified that he had no knowledge at all of what the defendant may have told the Rock Island police when he was booked back in February.

Defendant contends that his being returned to the scene of the robbery resulted in a denial of due process and relies primarily on Stovall v. Denno, 388 U.S. 293, and People v. Blumenshine, 42 Ill.2d 508. Single-suspect identifications are subject to constitutional analysis insofar as they are characterized by impermissible suggestiveness in violation of the due process clause of the Fourteenth Amendment. The test of Stovall is whether the confrontation was “so unnecessarily suggestive and conducive to irreparable mistaken identification that the suspect was denied due process of law.” Cf. People v. Patrick, 53 Ill.2d 201; People v. Reese, 54 Ill.2d 51; People v. Marshall, 9 Ill.App.3d 1035; People v. Mueller, 54 Ill.2d 189.

In Blumenshine, supra, the confrontation was 19 days after the event; the record did not permit an “informed judgment” as to whether the identifications were of an independent source so the case was remanded for that determination.

Even so, the independent-source exception may be used. (People v. Bey, 51 Ill.2d 262; United States v. Wade, 388 U.S. 218.) Was the “on the scene” identification herein so unnecessarily suggestive and conducive to mistaken identification that the defendant was denied due process of law? Prompt “on-the-scene” identification procedures were discussed in People v. Elam, 50 Ill.2d 214, where the court repeated its holding that this type of confrontation has been approved by the court and does not violate the principle announced in United States v. Wade, 388 U.S. 218; Gilbert v. California, 388 U.S. 263; and Stovall v. Denno, 388 U.S. 293. The court quoted with approval the language in Bates v. United States (D.C. Cir. 1968), 405 F.2d 1104, 1106, where the court said: “There is no prohibition against a viewing of a suspect alone in what is called a ‘one-man showup’ when this occurs near the time of the alleged criminal act; such a course does not tend to bring about misidentification but rather tends under some circumstances to insure accuracy. The rationale underlying this is in some respects not unlike that which the law relies on to make an exception to the hearsay rule, allowing spontaneous utterances a standing which they would not be given if uttered at a later point in time.” The court further observed that such procedure fosters the desirable objectives of fresh, accurate identifications which may lead to the immediate release of an innocent suspect and at the same time enable the police to resume the search for the fleeing offender while the trail is fresh.

In People v. Young, 46 Ill.2d 82, the court suggested that police officers may be derelict in their duty should they fail to cause such a confrontation.

In this case we find that the service-station confrontation within 15 to 30 minutes of the robbery was justified because prompt identification was necessary to determine whether defendant was the offender or whether the officers should continue their search.

Further, in the instant case, it was shown by clear and convincing evidence that tire in-court identification had an independent origin arising from other uninfluenced observation of the defendant. People v. Bey, supra. The witness had ample opportunity to view defendant for several minutes and gave a detailed description to the police immediately after the crime, which description matched that of the defendant.

Defendant contends that he was not proven guilty beyond a reasonable doubt because the victim failed to mention that defendant had a moustache. Where identification testimony of a crime victim is positive, precise accuracy in describing facial characteristics is unnecessary, slight discrepancies do not destroy his credibility, and failure to notice the presence or absence of a moustache is a minor discrepancy. People v. Carroll, 12 Ill.App.3d 869, 879.

• He argues that when arrested he did not have the gun or rolls of pennies in his possession. This ignores the fact that he was in a residence in the interim between the robbery and his arrest and had ample opportunity for a “drop off.”

Wdiile the evidence of alibi cannot be disregarded where the sole and only evidence contradicting it rests upon the identity of the defendant as the man who committed the crime, it is equally true that the testimony of a single witness, if it is positive and the witness credible, is sufficient to convict even though it is contradicted by the accused. (People v. Gardner, 35 Ill.2d 564, 571.) It is our duty to' carefully review the evidence, and if it is not sufficient to remove all reasonable doubt of the guilt of the defendant and to create an abiding conviction that he is guilty the conviction will be reversed. People v. Kidd, 410 Ill. 271; People v. Botulinski, 383 Ill. 608.

Here the victim had sufficient opportunity to view the defendant, who was not masked, at close range, under daylight conditions for an ample amount of time to furnish a detailed description to the police. The witness was positive in his identification of the defendant.

An independent witness also gave the police a detailed description of an automobile he had observed leaving the area at a high rate of speed. The conclusion is inescapable that defendant’s conviction was based on a positive and certain identification. The judgment of the Circuit Court of Rock Island is affirmed.

Judgment affirmed.

ALLOY and STOUDER, JJ., concur.


source: Caselaw Access Project

author: Mr. JUSTICE DIXON Mr. JUSTICE STOUDER,

license: Public Domain

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Danny Yocum, Defendant-Appellant.
    (No. 73-321;
    Third District
    December 30, 1974.

      STOUDER, J., dissenting.
    James G. Keis and Richard Steck, both of State Appellate Defender’s Office, of Ottawa, for appellant.
    Henry D. Sintzenich, State’s Attorney, of Macomb (William Henderson, Assistant State’s Attorney, of counsel), for the People.
   Mr. JUSTICE DIXON

delivered the opinion of the court:

Danny Yocum, the defendant, was charged with unlawful possession of less than 10 grams of cannabis. After a bench trial he was found guilty and sentenced by the Circuit Court of McDonough County to 1 year probation. He appeals contending that his arrest and search were unlawful.

One afternoon, Charlie Yocum, the defendant’s 20-year-old uncle, was driving the defendant and his friend, David Price, around in his car. Both the defendant and Price were students at Macomb High School. Charlie, who had just been released from the county jail that morning or the day before, suggested that they all go to the jail to talk to the prisoners and to let them hear music from his tape player.

The three drove to the jail and parked in the adjacent parking lot, approximately 25 feet from the jail building. The defendant turned up the tape player and stood on the sidewalk in front of the car. Both Charlie and Price sat on the hood of the car. Charlie turned the tape player down at the defendant’s request, and the defendant called to Wayne Campaign, an inmate of the jail. It was May and the jail window was open. The defendant and Wayne had a short conversation. At one point, the defendant stepped on the grass next to the sidewalk on which he stood, Charlie told him to get off, and he immediately did. After about 2 or 3 minutes of conversation with Wayne, the defendant saw two' police officers coming out of the building. He stopped talking and joined his friends on the hood of the car. Neither the defendant nor the other two boys ever got any closer to the jail than about 19 feet.

While inside Sheriff Bliven had heard boys talking out behind the jail. Although he could not recall what they were saying, he did hear someone call “Hey Danny,” and did testify that persons were “yelling” at the prisoners. He did not mention hearing any music. Believing that .these boys were talking to the prisoners, Bliven went out there with Deputy McClure. When he got outside he saw the defendant, Charlie and Price sitting on the hood of Charlie’s car. Bliven grabbed Charlie by the arm and McClure grabbed the other two. As they took the boys into the jail, Bliven said tó Charlie, “You was talking to prisoners wasn’t you?” Charlie replied that he wasn’t and McClure said “Yes you was.” Bliven - told. Charlie that the charge was “disorderly conduct right now.”

Bliven thought it was suspicious that Charlie would return to the jail so soon after his release. He did not see the boys do anything but sit on the car, but he wondered why they were there. If he had found hacksaw blades or knife blades on them, he would have charged them accordingly. He specifically stated that he did not have probable cause to believe the boys were planning anything, just suspicions. There were sighs posted on the jail wall which said that talking to the prisoners was not allowed. Bliven promulgated this rule because talking through the jail windows creates problems and people often did it. ‘We just forbid it — it is one of the jail rules we have.” This rule is also suggested in the State jail-standards book.

Officer Bliven and McClure brought the youths inside the jail; they questioned and searched them. Charlie was released with a warning not to talk to the prisoners again. McClure told Price that the charge was trespassing and let him go after fingerprinting and searching him. McClure searched the defendant and found a small amount of cannabis. The defendant was booked and put in a cell.

The charge against the defendant of unlawful possession of cannabis was the only charge against-any of the three stemming from this incident.

Defénse counsel moved to suppress the evidence on tire basis that it Was a direct consequence of an illegal arrest. The trial judge denied defendant’s motion finding that the police' had “reasonable grounds to arrest the defendant for such disobedient conduct.”

The only evidence on which this conviction is based was the small amount of cannabis that McClure found on the defendant when he searched him incident to the arrest based on the events in the jail parking lot.

The basic question here is whether the arrest of the defendant .was lawful, and this is to be determined by whether the sheriff had reasonable grounds to believe the defendant was committing of. had committed an offense viewed in light of the evidence presented at the hearing on defendant’s motion to suppress.' If the. arrest is justified.the accompanying search is also justified. Ill. Rev. Stat., ch. 38, par. 108 — 1; People v. Edge, 406 Ill. 490; 496.

Section 107 — 2(c) of the Code of Criminal.Procedure authorizes a peace officer to arrest a person when “[h]e has reasonable grounds to believe that the person is committing or has committed an offense.” This provision adopts the Federal rule and the former basis that “ ‘an offense has in fact been committed’” is no longer applicable. (See Committee Comments, Ill. Ann. Stat., ch. 38, §107 — 2 (Smith-Hurd 1970); and Aspen, Arrest and Arrest Alternatives: Recent Trends, 1966 U. Ill. L.F. 241, 244-246.)

The belief induced in the mind of an officer must be a reasonable belief and must appear on subsequent inquiry to have been founded on such facts as would, in the mind of a reasonable man, give rise to a suspicion that the prisoner is guilty of or implicated in a crime. A mere suspicion in the mind of an officer not so supported will not justify a search. Illinois Court has construed the reasonable grounds test of the Code quite liberally.

The actions of the sheriff in making the arrest are to be judged by the factual considerations of everyday fife, and any assessment of the reasonableness of the sheriff’s conduct should take into consideration the sheriffs responsibility and duty to maintain order, prevent crime and to apprehend criminals along with, the fact that he had to act on a quick appraisal of the information before him. (Brinegar v. United States, 338 U.S. 160; People v. Watkins, 19 Ill.2d 11; People v. Cain, 35 Ill.2d 184, 196; People v. Pruitt, 79 Ill.App.2d 209.) Reasonable grounds do not require the same quantum of evidence to support a conviction and may be founded on evidence that would not be admissible at the trial. Brinegar, supra.

Defendant in the instant case concedes that the sheriff has the right to make reasonable jail rules but contends that merely talking to a prisoner in violation of a rule is not a crime. When, as here, the officer hears “yelling” so loud that his attention had been attracted to it, he is justified' in investigating the source; in fact, he has a duty to do so. The creation and maintenance of loud and raucous noises of all sorts has traditionally been regarded as disorderly. (See Committee Comments, S.H.A. ch. 38, § 26 — 1 (1970).) Refusal to obey the lawful order of police may form the basis of a disorderly conduct prosecution. (City of Chicago v. Jacobs, 46 Ill.2d 214.) Failure to obey directions of a police officer, not exceeding his authority, may interfere with the public order and lead to a breach of the peace. People v. Galpern (1932), 259 N.Y. 279, 181 N.E. 572, 83 A.L.R. 785.

Wé believe that the circumstances of this case presented the sheriff with reasonable grounds to believe that the defendant had committed an offense. Under the facts of this case, we think the trial judge properly denied defendant’s motion to suppress. The judgment of the Circuit Court of McDonough County is affirmed.

Judgment affirmed.

ALLOY, J., concurs.

Mr. JUSTICE STOUDER,

dissenting:

The issue, as stated by the majority, is whether the arrest of the defendant was lawful and this is dependent upon whether the sheriff had reasonable grounds to believe the defendant was committing or had committed an offense viewed in light of the evidence presented at the hearing on defendant’s motion to suppress. It is my conclusion the police officers here lacked reasonable grounds to believe defendant had committed an offense. The testimony of the officers is crucial and contrary to the result reached by the majority. Sheriff Bliven testified he didn’t see defendant and his two companions do anything except sit on the car, but he wondered why they were there. He specifically stated he didn’t have probable cause to believe the three were planning anything, just suspicions.

The cases cited by the majority support the general principles concerning the legality of arrests but are not supportive of the result here due to the difference in factual situations. In People v. Watkins, 19 Ill.2d 11, 166 N.E.2d 433, the arresting officers were members of the gambHng detafi and knew defendant and defendant knew them. The officers watched defendant park his car and saw him go into the building, and defendant saw the officers. When defendant came out of the building 20 minutes later he ran back into the building as soon as he saw the officers were still there. In People v. Cain, 35 Ill.2d 184, 220 N.E.2d 195, the police officers with a warrant after knocking on the door heard defendant cry out “police” and saw him- put the packet into his mouth. In People v. Pruitt, 79 Ill.App.2d 209, 223 N.E.2d 537, defendants, husband and wife, were arrested in a church at a time when services were not in session, and the budding was locked except for one door which admitted persons into a corridor off which the church office and other rooms were located. Defendant husband was seen kneeling before the safe in the office. As can readily be seen, these cases cited by the majority are distinguishable from the case at bar where the officers, responding to what they thought was yelling outside the jailhouse, went outside and observed only that defendant and two others were sitting on the hood of a car. The deputy asked one of them whether he was talking to the prisoners and was told that he was not.

It is also of some significance that none of the three were charged with disorderly conduct. One was released with a warning not to talk to the prisoners again. Another was told that the charge was trespassing and was released after being fingerprinted and searched. When defendant was searched a small amount of cannabis was found, and he was the only one booked and jailed and not for disorderly conduct.

The majority’s hypothesis seems to be that defendant and the others could have been arrested for disorderly conduct, and yet none of the three were so charged. Although it is not necessary to bring subsequent charges to justify an otherwise valid arrest, in the case at bar there were no reasonable grounds for believing defendant and the others had committed an offense, and, accordingly, I believe the arrest was illegal, the search incident to this arrest improper, the evidence should have been suppressed and therefore the conviction should be reversed.


author: Mr. JUSTICE ALLOY

text:
    Robert Basarich et al., Plaintiffs-Appellants, v. Richard J. Rodeghero et al., Defendants-Appellees.
    (No. 73-253;
    Third District
    December 31, 1974.

      Kleiman, Cornfield & Feldman, of Chicago (Thomas W. Duda, of counsel), for appellants.
    Sidley & Austin, of Chicago (Mark E. MacDonald, of counsel), for appellees.'
   Mr. JUSTICE ALLOY

delivered the opinion of the court:

The appeal before us arises from an order of the Circuit Court of Will County which dismissed the complaint of Robert Basarich, Clyde Odie, William Zimmer, individuals, and Richard Manley, on behalf of the membership of the. Lockport Federation of. Teachers, a voluntary association. The individual plaintiffs are coaches and teachers at Lockport High School, and plaintiff Lockport Federation of Teachers is a voluntary association (hereinafter called the Federation) which apparently represents a majority of the faculty members of Lockport High School.

The complaint charged defendants Richard J. Rodeghero and Karen Galaske with pubhshing newsletters which libeled plaintiffs and invaded their right to privacy, and asserted that the alleged motive was to discourage membership in the Federation which the individual plaintiffs presumably support. Plaintiffs sought damages and injunctive relief prohibiting further libelous publications. The motion to dismiss the complaint filed by defendants asserted that the allegations of the complaint were simply conclusions and not well pleaded; that on their face the alleged libelous statements showed that no cause of action could be stated; and that plaintiffs, as “public officials,” had not alleged actual malice in accordance with the rule in New York Times Co. v. Sullivan, 376 U.S. 254, 11 L.Ed.2d 686, 84 S.Ct. 710 (1964), and the cases which followed the New York Times case.

The trial judge dismissed the complaint and gave plaintiffs leave to amend. After the amended complaint was filed, a new motion to dismiss was also allowed by the court. Plaintiffs requested further leave to amend but did not appear in court for the hearing on that request, and the motion of plaintiffs to amend was stricken. The fundamental issue presented by the parties is whether the New York Times v. Sullivan rule applies to plaintiffs so that they must allege malice in the complaint. The question also arises as to whether the complaint was sufficient under the New York Times v. Sullivan standard.

The rule in New York Times v. Sullivan concerning libel cases (376 U.S. 254, 279-280, 11 L.Ed.2d 686, 706):

“* s * prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with ‘actual malice’ — that is, with knowledge that it was false or with reckless disregard of whether it was false or not.”

This rule, which restricts the scope of liability for defamation, was made by the United States Supreme Court after assertedly careful consideration of the delicate balance between freedom of the press and the individual’s right to be protected from libelous publications. It was emphasized in the Nevo York Times case that the background of a “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasant sharp attacks on government and public officials.” (376 U.S. 254, 270, 11 L.Ed.2d 686, 701.) The rule wás premised on the need to allow citizens to criticize, their public officials without fear of reprisal or large damage suits for inadvertent misstatements, and on this issue the court specified. the rule which requires that defendant’s statement of facts would be required to be shown to be “deliberate or reckless error” before the official could recover damages for libel. In the New York Times case, the court declined to specify the scope of the terms “public officials” and “official conduct.” In Rosenblatt v. Baer, 383 U.S. 75, 15 L.Ed.2d 597, 86 S.Ct. 669 (1966), the Supreme Court found, however, that it was “clear, therefore, that the public official’ designation applies at the least to those among the hierarchy of government employees who have, or appear to the public to have, substantial responsibility for or control over the conduct of governmental affairs.” 383 U.S. 75, 85-86, 15 L.Ed.2d 597, 605.

The United States Supreme Court subsequently extended the “actual malice” requirement to plaintiffs who were “public figures” (Curtis Publishing Co. v. Butts, 388 U.S. 130, 18 L.Ed.2d 1094, 87, S.Ct. 1975 (1967) (college football coach accused of fixing a game)), and those private individuals involved in “matters of public or general concern, without regard to whether persons involved are famous or anonymous” (Rosenbloom v. Metromedia, 403 U.S. 29, 43-44, 29 L.Ed.2d 296, 312, 91 S.Ct. 1811 (1971)). (But compare Gertz v. Welch, Inc., — U.S. —, 41 L.Ed 2d 789, — S.Ct. — (1974), which appears to restrict the Rosenbloom precedent and give more latitude to the states in defining libel standards for certain private plaintiffs.) Gertz (which involved an attorney who was not a public official) is not applicable to the present case.

In the cause before us, the question, initially, is whether the plaintiffs as teachers and athletic coaches in the community high school, are “public officials” or “public figures,” or involved in matters of general interest, so that statements made concerning their conduct in office or otherwise within the public interest fall under the conditional privilege noted in the case of New York Times v. Sullivan. We believe that the rule expressed in the Times case fully applies in the cause before us. Plaintiffs are public employees, hired by the school board and paid with public funds. As coaches and teachers in a local high school they maintain highly responsible positions in the community. As delineated in the 1970 Illinois Constitution, article X, section 1, it is clear that education is a prime governmental responsibility. Public school systems, their athletic programs, and those who run them are consistent subjects of intense public interest and substantial publicity. The Illinois courts have brought within the scope of the Times rule such people as doctors (Farnsworth v. Tribune Co., 43 Ill.2d 286, 253 N.E.2d 456 (1969)), police officers (Coursey v. Greater Niles Township Publishing Corp., 40 Ill.2d 257, 265, 239 N.E.2d 837 (1968)), and those who care for abnormal and mentally retarded children (Doctors Convalescent Center, Inc. v. East Shore Newspapers, Inc., 104 Ill.App.2d 271, 276-77, 244 N.E.2d 373 (1968)). Public school teachers and coaches, and the conduct of such teachers and coaches and their policies, are of as much concern to the community as are other “public officials” and “public figures.”

Recent cases in other jurisdictions have applied the New York Times v. Sullivan rule to similar plaintiffs (Gallman v. Carnes, 254 Ark. 987, 497 S.W.2d 47 (1973) (assistant dean and professor at a law school), Reaves v. Foster, 200 So. 2d 453 (Miss. 1967) (school principal), and Time, Inc. v. Johnston, 448 F.2d 378 (4th Cir. 1971), and Grayson v. Curtis Publishing Co., 72 Wash. 2d 999, 436 P.2d 756 (1967) (college basketball coaches)). As expressed in Rosenblatt v. Baer, 383 U.S. 75, 15 L.Ed.2d 597, 605, 86 S.Ct. 669, although society has a pervasive and strong interest in preventing and redressing attacks upon reputation, there is “first, a strong interest in debate on public issues, and, second, a strong interest in debate about those persons who are in a position significantly to influence the resolution of those issues.” We have concluded, therefore, that it is clear that plaintiffs are within the New York Times v. Sullivan rule and that we need not remand the case, as plaintiffs suggest, for further evidence on that issue.

Thus plaintiffs were required to allege, in their complaint, that defendants made the allegedly libelous statements either knowing them to be false or in reckless disregard of the truth. (Arlington Heights National Bank v. Arlington Federal Savings & Loan Association, 37 Ill.2d 546, 229 N.E.2d 514.) Plaintiffs contend that the complaint is sufficient because it alleges the maliciousness of the alleged libels, their falsity, and the fact that defendants were motivated by a desire to discourage memberships in the Federation. While these allegations might be sufficient to show malice in the common-law sense, i.e., ill will, spite and intent to injure, they fall far short of alleging that defendants actually knew the statements to be false or that they published the statements in “reckless disregard” for the truth. A complaint very similar to the instant complaint was found wanting allegations of actual malice in Suchomel v. Suburban Life Newspapers, Inc., 40 Ill.2d 32 (1968).

Plaintiffs point to Coursey v. Greater Niles Township Publishing Corp., 40 Ill.2d 257, 239 N.E.2d 837 (1968), where inclusion of the phrase “with knowledge that it was false and with reckless disregard to whether it was false or not” was held sufficient to allege actual malice, where the statements involved on their face gave rise to factual inferences of knowledge of falsity or a reckless disregard for the truth. Plaintiffs promise to include these “magic words” in the complaint if given another chance to amend. The mere inclusion, however, of the so-called “magic words” would not alone be sufficient, without other allegations of fact or factual inferences arising from the face of the alleged libelous statements as in Coursey (see Suchomel v. Suburban Life Newspapers, 40 Ill.2d 32).

In the cause before us, plaintiffs failed to correct their complaint after defendants first raised the New York Times v. Sullivan issue in the court below, and after the amended complaint was found to be insufficient by the trial court. Thereafter, plaintiffs failed to appear in the court to be heard on their motion to further amend. Leave to amend is discretionary, and on the basis of the record before us we see no error in the trial court’s decision to strike the motion to further amend when plaintiffs failed to appear or to establish a good reason why they should be given a third chance. It is argued by plaintiff that dismissal of the libel action gives court approval to the alleged efforts of defendants to interfere with plaintiffs’ freedom of association. We do not so characterize the action of the court. Plaintiffs and their federation have no right to be free from comment and criticism regarding their activities in the school system any more than would any other person or organization involved as teachers or coaches or associations thereof in the school system. In effect, the New York Times v. Sullivan case, with a view to freedom to the media to publish without fear of successful actions for libel against them, concluded that unless the complainant would allege and prove actual malice or recklessness on the part of the publishing media, the complaint should be dismissed. Essentially, the Times case inhibits the use of the judicial system for the purpose of suppressing unfavorable statements made by others unless the requisite showing of malice is alleged and proved. By implication the court has indicated that the remedy of persons is to use the channels of public communication as did defendants here, to air their own views and rebut defendants’ statements. This is the “robust public debate” which the Times case and subsequent cases have sought to protect.

As to the issue of the request for injunctive relief, such “prior restraint” of discussion of public issues is looked upon with great disfavor by the courts. (New York Times Co. v. United States, 403 U.S. 761, 29 L.Ed.2d 822, 91 S.Ct. 2140 (1971); Near v. Minnesota, 283 U.S. 697, 75 L.Ed. 1357 (1931).) If plaintiffs had alleged, ánd at the trial could have proven, that there was actual malice on the part of defendants, the damage remedy would normally be sufficient. We find no basis for granting the equitable remedy of injunction.

In summary, plaintiffs were required to plead actual malice, i.e., knowledge of falsity or reckless disregard for the truth in the complaint. Since they failed to do so in two attempts with the original and the amended complaint and since they failed to appear in court to be heard on their motion to further amend, we cannot say, on review, that plaintiffs have not had their day in court. We, therefore, conclude that the orders of the trial court striking plaintiffs’ motion to amend and dismissing the amended complaint should be, and they are, accordingly, affirmed.

Affirmed.

SCOTT and DIXON, JJ., concur.


author: Mr. JUSTICE SEIDENFELD

text:
      In re Estate of Ulis H. Garrett, Deceased.—(Hanzel L. Garrett, Claimant-Appellant.)
    (No. 73-183;
    Second District
    January 8, 1975.

      Richard R. Cross, of Woodstock, for appellant.
    James E. Berner, of Woodstock, for appellee.
   Mr. JUSTICE SEIDENFELD

delivered the opinion of the court:

Hanzel L. Garrett, the claimant, appeals from a dismissal of his claim in the amount of $2,000 filed against the estate of Ulis H. Garrett, deceased, which the trial court held was barred by the defense of the 5-year statute of limitations governing unwritten contracts. Ill. Rev. Stat. 1971, ch. 83, par. 16.

It appears from the stipulated report of proceedings that Hanzel Garrett is the son of Ulis H. Garrett, deceased. On April 11, 1961, Ulis Garrett paid a promissory note which he had given to the First State Bank of Harvard in the amount of $5,000. Upon his death, the.claimant, as executor, found the paid note in his father’s safety deposit box. The following appears on the reverse side of the note in the decedent’s hand? writing:

“Hanzel L. Garrett
and
Howard R. Garrett Loaned me The money To Pay This Note $2,500 Each
I Want This Paid Out [sic]
My Estate
4-11-1961
S/ Ulis H. Garrett”

The envelope containing the note bore the writing also in the decedents i hand:

00
“$5,000 I owe Hank &
Howard Garrett
$2,500.00 each S/ U. H. Garrett
1961”

The claim was filed on February 20, 1970.

The claimant contends that his claim is not barred by the 5-year statute of limitations as an unwritten contract but is instead covered by section 16 of “An Act in regard to limitations” (Ill. Rev. Stat. 1971, ch. 83, par. 17). He argues that both the writing on the reverse of the note paid by the deceased and the writing on the envelope in which the note was found constitute “other evidences of indebtedness in writing.” The special administrator to defend responds that the writings do not constitute “other evidences of indebtedness in writing” because the phrase was not meant to extend to a different class than that included by the

preceding.particular enumeration in the statute. He argues, citing Wood v. Williams (1892), 142 Ill. 269, 275, that the phrase was intended to include only contracts in which the parties intended to put the evidence in writing at the time the agreement was made and does not apply to a verbal contract sought to be proved by subsequent admissions in writing.

The writings on the reverse side of the paid note and on the accompanying envelope do not fall within the particular enumerations in the statute which could be considered pertinent. They fail to fall within the classification of a promissory note because they do not provide for payment absolutely and unconditionally. (Ruettinger v. Schulman (1938), 293 Ill.App. 285, 287; Mullberg v. Johnson (1950), 340 Ill.App. 92, 95. See also Ill. Rev. Stat. 1971, ch. 26, par. 3 — 104.) Furthermore, without regard to interpretation, they fail to qualify as a "written contract” because the documents were not delivered to the claimant and, in fact, he did not know of their existence until after the death of his father. (Cities Service Oil Co. v. Viering (1949), 404 Ill. 538, 545; Memory v. Niepert (1890), 131 Ill. 623, 631-632.) We conclude, however, that being of a contractual nature, the writings do constitute “other evidences of indebtedness in writing.”

Whether an action is based on a written contract or on any other evidence of indebtedness in writing, the action must be upon the writing and it is not enought that the evidence by which the cause of action is supported is in writing. Bates v. Bates Machine Co. (1907), 230 Ill. 619, 621-622; Knight v. St. Louis Iron Mountain & Southern Ry. Co. (1892), 141 Ill. 110, 115; Mullberg v. Johnson, 340 Ill.App. 92, 97.

The writings before us are not, however, mere evidence of a previous oral agreement. They are by themselves complete, thus eliminating the necessity of resort to parol evidence. The parties to the agreement, the nature of the transaction, the amount in question and, at least by reasonable implication, an intention to repay the debt are indicated therein. Accordingly, the writings come within the purview of section 16 of “An Act in regard to limitations” (Ill. Rev. Stat. 1971, ch. 83, par. 17). Ruettinger v. Schulman, 293 Ill.App. 285, 288-289 (compare Mullberg v. Johnson, 340 Ill.App. 92, 97, where the payee’s name was not mentioned in the instrument preventing the writing from being complete within itself as a written evidence of indebtedness); Grossfeld & Roe Co. v. Zuckerman (1915), 192 Ill.App. 90, 96; cf. Coulson v. Hartz (1893), 47 Ill.App. 20, 27. See also Tagus Ranch Co. v. Hughes (1944), 64 Cal.App.2d 128, 148 P.2d 79-80; McDonald v. Hanahan (1952), 328 Mass. 539, 105 N.E.2d 240, 242; O’Neal v. Patterson (Mo.Ct.App. 1918), 206 S.W. 596, 597; Hester & Wise v. Chinn (Tex. Civ. App. 1942), 162 S.W.2d 450, 452; Annot., 111 A.L.R. 984 (1937).

We do not agree that Wood v. Williams (1892), 142 Ill. 269, 275, cited as controlling by respondent, requires a contrary result. The case held that the words “other evidences of indebtedness in writing” by a familiar rule of construction do not extend to a different class from that included by the preceding enumeration and were therefore intended to include only contracts in which the parties intended to put the evidence in writing at the time they were made. However, the writing in Wood, in the form of a letter, did not puiport to be the statement of a contract previously made, nor the contemporaneous expression of a contract, then being made. It was held, rather, to be a mere narrative, incomplete unless accompanied with parol evidence supplementing its omissions. The writing here, to the contrary, although not technically a written contract, is of a contractual nature. Thus, it is of the same class as the forms specifically enumerated in the statute and properly considered, in our view, as within the meaning of the words “other evidences of indebtedness in writing” denoted in section 16 of the statute of limitations.

Under the weight of the modem authorities, moreover, the term “other evidences of indebtedness in writing” seems properly construed as a general expression embracing all kinds of written instruments of the same class or nature as those specifically enumerated in the statute but without regard to their precise form or phraseology. If the language of a writing may fairly be constmed to contain a promise to pay money, or if the instrument states a fact from which the law implies an obligation to pay and there is no need to resort to parol evidence in order to establish any essential elements of the agreement forming the basis of the action, the instrument is within section 16 of the statute of limitations founded upon “evidences of indebtedness in writing.” A cause of action, however, is not founded on a written instrument within that statute merely because it is indirectly connected with the writing or because the writing may be a link in the chain of evidence establishing liability. See, e.g., Mowatt v. City of Chicago (1920), 292 Ill. 578, 582; Knight v. St. Louis Iron Mountain & Southern Ry. Co., 141 Ill. 110, 115; Memory v. Niepert, 131 Ill. 623, 630; Bracklein v. Realty Ins. Co. (1938), 95 Utah 490, 80 P.2d 471, 476; Grant v. Williams (1954), 158 Neb. 107, 62 N.W.2d 532, 536.

We conclude that the liability in the instant case grows out of the written instrument not remotely or ultimately but immediately, and it is therefore within section 16 of the statute of limitations. Since the appellant’s claim was properly filed within 10 years it is not barred. We, therefore, reverse the judgment below with directions to further proceed in accordance with this opinion.

Reversed and remanded with directions.

T. MORAN and RECHENMACHER, JJ., concur.

       The daughter of the deceased, Norma Wittmus, testified that on May 6, 1966, she was directed by her father to write a check to claimant for $500 as a payment on a debt which decedent owed claimant. The check signed by the deceased and endorsed by Hanzel Garrett was offered into evidence. On objection by the special administrator to defend, the check was not admitted on the ground that there was no proof that the check was given in payment of the loan evidenced by the paid note. The claimant, however, makes no issue of this ruling in this appeal.

       “Except as provided in Section 2 — 725 of the ‘Uniform Commercial Code’, * * * actions on bonds, promissory notes, bills of exchange, written leases, written contracts, or other evidences of indebtedness in writing, shall be commenced within 10 years next after the cause of action accmed; * *


author: Mr. JUSTICE CRAVEN

text:
    Johnny Bruce Company, Petitioner-Appellee, v. The City of Champaign et al., Respondents.—(John M. Schorie et al., Respondents-Appellants.)
    (No. 12364;
    Fourth District
    December 30, 1974.

      Franklin, Flynn & Palmer, of Champaign (Leonard T. Flynn, of counsel), for appellants John M. and Judith H. Schorie.
    Dobbins, Fraker & Tennant, of Champaign (French L. Fraker, of counsel), for appellant Champaign Park District.
    Thomas, Mamer & Haughey, of Champaign (Roger E. Haughey, of counsel), for appellee.
   Mr. JUSTICE CRAVEN

delivered the opinion of the court:

Johnny Bruce Company, a corporation, as the owner of a certain 73-acre tract of real estate located in Champaign County and within IVz miles of the city of Champaign, formulated a Planned Unit Development for its real estate. This PUD plan was submitted to the city of Champaign Plan Commission in February 1973 for approval under the terms of its general zoning ordinance as adopted in 1965 and as amended insofar as its related to PUD by ordinance 1086 adopted in November 1971. Objections were presented by persons in opposition to the approval of the PUD and by those objections they sought to invoke the provisions of section 11 — 13—14 of the Municipal Code (Ill. Rev. Stat. 1971, ch. 24, par. 11 — 13—14). This statute requires a vote of two-thirds of the city council for approval of an amendment to a zoning ordinance in the event that objections are filed by 20 percent of the affected adjoining or adjacent property owners. The general ordinance of the city of Champaign obviously patterned after this statutory provision required a favorable vote of two-thirds in the event of objections to a proposed change. In each instance, the two-thirds favorable vote is required in the event of an “amendment” to the zoning ordinance and the regulations imposed and the districts created by the ordinance.

The appellants, John M. Schorie and Judith H. Schorie and Champaign Park District, were objectors and adjacent property owners. On March 28, 1973, the Plan Cbmmission, by a vote of 4-1, recommended approval of the PUD to the city council. On April 3,1973, the city council considered the recommendation and a motion to approve the PUD received four favorable votes and three votes were cast against it.

This complaint for declaratory judgment followed that action. In the complaint plaintiff alleges that the city “believes a favorable vote of two-thirds of councilmen is necessary for approval of the plan.” Plaintiff sought a declaration that its preliminary PUD plan could be approved by a mere majority vote. The circuit court so held. The court concluded that the PUD plan did not constitute an amendment to the zoning ordinance but rather, by analogy to a special-use ordinance, was a legislative procedure authorized under ordinance 1086 of the city and that ordinance was independent of, and in no way dependent upon, the general zoning ordinance.

Section 17 of ordinance 1086 amending the 1985 zoning ordinance, section 17, article VII, provides in part as follows:

“h. Council Action on Preliminary Application Approval of the preliminary plan by the City Council shall constitute approval of the general arrangement of the plan, the provisions submitted by the applicant, and a waiver of only those items of policy or ordinance which have been brought specifically to the attention of the Plan Commission. Such approval shall be valid for six (6) months. In its discretion and for good cause, the City Council may extend for an additioal [sic] (6) months, the approval of the preliminary plan.
“i. Final Application Submission
Within six (6) months following the approval of the preliminary development plan by the City Council, the applicant shall file the plan in accordance with the procedures for filing zoning amendments. Five (5) copies of the final development plan shall be filed containing all information, plans and data as required herein. Such submission shall be accompanied by a second fee equal to that required for petitioning for amendment to this ordinance.”

It is provided specifically that the final plan may be approved by a' majority vote of the city council.

The city of Champaign is a municipality which has a population of more than 25,000 and is, therefore, a home-rule unit under the provisions of article VII, section 6(a), of the 1970 constitution. This court requested supplemental briefs upon the issue of whether the exercise of zoning authority by a home-rule unit is dependent upon State enabling legislation or limited by it. Excellent briefs have been filed by counsel upon this issue.

During the time consumed in the appellate process, the land here involved has been annexed to the city of Champaign and the time for the final approval of a preliminary plan, if the same was approved upon receiving a majority vote, has expired. Thus the passage of time has rendered moot the extraterritorial-zoning-authority issue as well as the final approval of the' preliminary plan. It is necessary, however, that we consider the application of the home-rule power to zoning in our disposition of this case.

Under the language of our 1970 constitution, a home-rule unit as defined in the cited section is authorized to “exercise any power and perform any function pertaining to its government and affairs including, but not limited to, the power to regulate for the protection of the public health, safety, morals and welfare; * * Hie parties in their supplemental briefs are in agreement that this grant of power encompasses zoning. We agree. In La Salle National Bank v. County of Cook, 12 Ill.2d 40, 46, 145 N.E.2d 65, the Illinois Supreme Court observed:

“It is well established that it is primarily the province of the municipal body to determine the use and purpose to which property may be devoted, and it is neither the province nor the duty of the courts to interfere with the discretion with which such bodies are vested unless the legislative action of the municipality is shown to be arbitrary, capricious or unrelated to the public health, safety and morals.”

Again, in Treadway v. City of Rockford, 24 Ill.2d 488, 493-94, 182 N.E.2d 219, the court stated:

“Zoning lies primarily within the province of the municipality, and it is neither the province nor the duty of courts to interfere with the discretion with which the municipal authorities are vested unless the action of the municipal authorities is shown to be unrelated to the public health, safety, and morals.”

Kratovil and Ziegweid, Illinois Municipal Home Rule and Urban Land— A Test Run of the New Constitution, 22 De Paul L. Rev. 359, 380 (1972), discuss the applicability of home-rule provisions to zoning, and the authors quote from Antieau, Municipal Corporation Law § 3.35 (1968), discussing a Pennsylvania Supreme Court case as follows:

“‘Surely, there are few matters which are of less statewide concern and which are more local in scope than zoning inside the City of Philadelphia * * * there can be no reasonable dispute that where, as in the instant case, the Council acts on a matter which is of purely local concern in a manner inconsistent with a State law, the ordinance must prevail.’ ”

In the law-review article it is suggested that Colorado, California, Ohio, Minnesota, Wisconsin and New York have all determined zoning to be a matter of local concern rather than State concern under the variable home-rule provisions found in those states. See also Institution of Government and Public Affairs, Forrest, Improved Land Use Regulation for the Home Rule Municipality.

In Rozner v. Korshak, 55 Ill.2d 430, 435, 303 N.E.2d 389, as well as in many other cases, the Illinois Supreme Court has recognized the broad grant of powers given home-rale units and in the cited case specifically notes that such powers “are in addition to the powers heretofore or hereafter granted by the General Assembly to other municipalities.” In Kanellos v. County of Cook, 53 Ill.2d 161, 166, 290 N.E.2d 240, our supreme court discusses the home-rule provision of the new constitution and states:

“The concept of home rule adopted under the provisions of the 1970 constitution was designed to drastically alter the relationship which previously existed between local and State government. Formerly, the actions of local government units were limited to those powers which were expressly authorized, implied or essential in carrying out the legislatures grant of authority. Under the home-rule provisions of the 1970 constitution, however, the power of the General Assembly to limit the actions of home-rule units has been circumscribed and home-rule units have been constitutionally delegated greater autonomy in the determination of their government and affairs. To accomplish this independence the constitution conferred substantial powers upon home-rule units subject only to those restrictions imposed or authorized therein.”

Legislative provisions heretofore existing limiting the authority of municipalities that are now home-rule units may be superseded by valid legislative action of a home-rale unit. See Clarke v. Village of Arlington Heights, 57 Ill.2d 50, 309 N.E.2d 576.

It is thus apparent that the city of Champaign in the adoption of its general zoning ordinance or an amendment thereto relating to PUD is not limited in the exercise of its power by the then-existing enabling statutes. It has plenary power in this regard. The precise procedure for the exercise of this power and the resolution of zoning problems must be left to the local exercise of this new constitutional grant of power. See People ex rel. City of Salem v. McMackin, 53 Ill.2d 347, 291 N.E.2d 807.

The preliminary plan cannot ripen into an approved final plan under the language of the ordinance because of valid time limitations. It is clear that a PUD of an area this large can and will have substantial impact upon a municipality. The demand for municipal services and the necessity for planning for those services by the city and other affected governmental units, i.e., schools, park districts, etc., clearly makes the time sequence for submission of the preliminary plan and approval of tlie final plan set forth in the ordinance reasonable. It necessarily follows that the declaratory judgment entered below upon the facts now existent would only affect future rights and that the rights adjudicated are now essentially moot as to the then actual controversy. (Berg v. City of Chicago, 97 Ill.App.2d 410, 240 N.E.2d 344.) Although the area involved is now annexed and the time for final approval of the plan has expired, the issue presented by this appeal will obviously recur. Furthermore, the usual time for perfection and disposition of an appeal would effectively deprive plaintiff of an available appellate review. We are not required to dismiss the case even though the issues are technically moot if the issues are likely to recur and involve matters of public concern. See In re Estate of Brooks, 32 Ill.2d 361, 205 N.E.2d 435.

The action of the city council in adopting ordinance 1086 in November 1971 as an amendment to its general zoning ordinance was to effect the repeal of a prior section 17 of article VII of that ordinance and add the new section. The language of ordinance 1086 did not contemplate approval of PUD by an amendment to the general zoning ordinance as was required by the predecessor provision. As we have noted, final approval was expressly conditioned only upon receipt of a majority vote. We thus agree with the determination by the trial court that approval of the preliminary plan would require only a majority vote. As indicated, however, notwithstanding the declaratory judgment, final approval of this specific preliminary plan cannot be obtained under the time sequence set forth in the ordinance.

The judgment of the circuit court of Champaign County declaring that a majority vote of the city council was sufficient to approve the preliminary plan is affirmed.

Judgment affirmed.

SMITH, P. J., and SIMKINS, J., concur.


author: Mr. JUSTICE ALLOY.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Jerry Jarvis, Defendant-Appellant.
    (No. 73-11;
    Third District
    December 30, 1974.

      James Geis and Robert Agostinelli, both of State Appellate Defender’s Office, of Ottawa, for appellant.
    Martin Rudman, State’s Attorney, of Joliet (Joseph C. Polito, Assistant State’s Attorney, of counsel), for the People.
   Opinion by

Mr. JUSTICE ALLOY.


author: Mr. JUSTICE STOUDER

text:
    The People of the State of Illinois, Plaintiff-Appellant, v. Charles Thomas, Defendant-Appellee.
    (No. 74-238;
    .Third District
    January 14, 1975.
    C. Brent Bode, State’s Attorney, of Pekin, for the People.
    Patrick Tuite, Ltd., of Chicago, for appellee.
   Mr. JUSTICE STOUDER

delivered the opinion of the court:

A four-count information was filed charging defendant, Charles Thomas, with obscenity in violation of section 11 — 20(a) (3) of the Criminal Code (Ill. Rev. Stat. 1973, ch. 38, par. 11 — 20(a)(3)). The State appeals pursuant to Supreme Court Rule 604(a) (Ill. Rev. Stat. 1973, ch. 110A, par. 604(a)) from an order of the Circuit' Court of Tazewell County dismissing the cause for want of prosecution.

Both parties joined in a motion for continuance based partially on the unavailability of essential witnesses. The motion was denied and the trial judge, Judge Reardon, called for voir dire examination of prospective jurors. The assistant State’s Attorney declined to proceed with voir dire, and defense counsel renewed his motion for continuance. Judge Reardon then dismissed the case for “want of prosecution” and the People appeal from this ruling. Defendant did not file a brief on appeal.

The sole issue here is whether the court on its own motion before trial could dismiss the charges for want of prosecution. In accord with People v. Guido, 11 Ill.App.3d 1067, 297 N.E.2d 18, People v. Hoover, 12.Ill.App.3d 25, 297 N.E.2d 400, People v. Barksdale, 110 Ill.App.2d 163, 249 N.E.2d 165, and People v. Shick, 101 Ill.App.2d 377, 243 N.E.2d 285, we hold that in the absence of one of the grounds set forth in section 114 — 1 of the Code of Criminal Procedure (Ill. Rev. Stat. 1973, ch. 38, par. 114 — 1), the action of the trial court was improper. Where the motion for a continuance has been properly denied the case should be called for trial, and if no evidence or insufficient evidence is presented by the People, then a judgment of acquittal may be entered by the court.

For the foregoing reasons the judgment of the Circuit Court of Tazewell County is reversed and remanded for further proceedings.

Reversed and remanded for further proceedings.

STENGEL and BARRY, JJ., concur.


text:
      In re Petition for Annexation of Certain Territory to the City of Naperville, Will and Du Page Counties.—(Robert S. Carr et al., Objectors-Appellants, v. William Bonnema et al., Petitioners-Appellees.)
    (No. 73-317;
    Third District
    December 31, 1974.

      Saxon, Niznik & Peterson, of Plainfield (John E. Peterson, of counsel), for appellants.
    Thomas, Wallace, Feehan & Baron, Ltd., of Joliet (James T. Bradley, of counsel), for appellees.
   Mr. JUSTICE STOUDER

delivered the opinion of the court:

This case is an action for annexation of territory to the City of Naperville, Illinois, upon, written petition by owners of record and electors pursuant to section 7 — 1—2 of the Illinois Municipal Code (Ill. Rev. Stat. 1973, ch. 24, par. 7 — 1—2). The appellants filed written objections which were overruled after hearing on the petition. An order was entered directing the question be submitted to the corporate authorities of the City of Naperville. Appeal is taken from the orders denying appellants’ objections and from the order of court submitting the question of annexation to the corporate authorities. Appellants sought to have their property excluded on the ground that it was on the perimeter of the. territory sought to be annexed. ...

The territory sought to be annexed comprises about 360 acres of land, 80 of which are in Du Page County and the remainder in Will County. None of the land in Will County has a contiguous boundary with the corporate limits of the City of Naperville. The extreme western edge of the Du Page County land has a common boundary with Naperville for a distance of about 1320 feet.

The first issue arises from the fact that the petition was filed in the Circuit Court of Will County and the territory in question is located in both Will and Du Page Counties. The Illinois annexation statute provides “[a] written petition * * * shall be filed with the circuit court clerk of the county in which the territory is located * * (Ill. Rev. Stat. 1973, ch. 24, par. 7 — 1—2.) It is appellants’ contention this statute clearly expresses the legislative intent not to authorize combined county annexation by electors or landowners. They argue against appellees’ contention that this was. a legislative oversight by citing other statutes 'where multi-county proceedings are expressly provided for. They also cite out-of-state cases which have questioned the wisdom of cross-county annexation. Their argument is the court lacked jurisdiction to consider the petition due to petitioner’s failure to comply with the statute.

Appellees argue multi-county annexation proceedings are proper in the circuit court of the county where .the greater portion of territory to be annexed is located. Their first argument is the provisions of the Civil Practice Act shall apply to supplement the procedural provisions of the Annexation Act where the latter is silent (In re Annexation to Bradley, 30 Ill.App.2d 391, 174 N.E.2d 710, and the Civil Practice Act Ill. Rev. Stat. 1973, ch. 110, par. 1, “* * * but this Act applies as to matters of procedure not so regulated by separate statutes”). AppeHees’ argument is appellants’ motion was for dismissal on the ground that the action was commenced in the wrong county and that even if it be assumed that the annexation petition was filed in the wrong venue it cannot be dismissed on the grounds of wrong court or venue.

The controversy here can be resolved by liberally construing the annexation statute to mean the petition is to be brought in the circuit court of the county where the greater portion of territory to be annexed is located. Such interpretation is supported by the provisions and purpose of the Civil Practice Act and by the fact that there is no statutory prohibition against multi-county annexation proceedings.

Appellants’ second principal contention is where the objectors’ land is located on the perimeter of the territory sought to be annexed, the objector did not desire annexation, and the exclusion of the objectors' land would not have destroyed the contiguity of the territory sought to be annexed, then, upon proper objection, the trial court should have ordered the objectors’ land be eliminated from the annexation petition as a matter of law. Appellees’ contention is exclusion of appellants’ property would have destroyed the dependent contiguity for the remaining territory to be annexed.

The issue is whether the exclusion of the major portion of objectors’ land would destroy the required contiguity between the annexing corporation and the land sought to be annexed. As was stated previously, total land area in the portion sought to be annexed is 360 acres of which 80 are in Du Page County, the county of the annexing municipality, Naperville. The 80 Du Page County acres lie directly east of Naperville. Objectors’ land lies directly south of the eastern 40 acres of the Du Page County land and is therefore on the eastern extremity of the land sought to be annexed. The portion of their land to which they have no objection to annexation is characterized by objectors as being 75 feet in depth and 1320 feet in length. It should be noted that this 75-foot strip along the western side of their 40-acre tract consisted of at least 33 feet of right-of-way lying in an existing road, and therefore only a 42-foot corridor is left on the east side of the road. This portion of objectors’ land is all that connects the land to the north with the land to the south, because the Will County land directly south of the western half of the Du Page County land is not part of the territory sought here to be annexed. What appellants are asking for on appeal is for this court to upset the trial court’s finding that the removal of the major portion of objectors’ land from this annexation proceeding would destroy the requisite contiguity. Appellants contend the 75 feet by 1320 feet portion of the western section of their land would constitute a touching or adjoining in a reasonably substantial physical sense of the land to the south with the land to the north. AppeUants cite In re Annexation to South Barrington, 7 Ill.App.3d 958, 289 N.E.2d 1, for the proposition that irregularity of the resulting boundaries in itself is not a fatal defect in determining contiguity. In that case, however, the land to be annexed touched the annexing village for over 3700 feet, whereas in the case at bar the section in question is considerably smaller and in fact does not touch the annexing village but merely links two tracts of land one of which adjoins the annexing Naperville. It should also be noted the South Barrington case sets forth other established principles of law such as “* * * the line of demarcation between the reasonableness or unreasonableness of a contiguity must be drawn from the facts of each case. * * * The finding of the trial court as to contiguity or lack of it wiU not be disturbed on appeal unless it is manifestly against the weight of the evidence.” 7 Ill.App.3d 358, 363.

It certainly cannot be stated here as a matter of law that the trial court’s finding that the removal of the greater portion of appellants’ land would destroy the required contiguity was manifestly against the weight of the evidence. It might also be mentioned that it appears what appellants are attempting to do is to substantially avoid having their lands annexed while at the same time retain any benefits of annexation to all their land by allowing a smaU portion of it to be annexed.

For the foregoing reasons, the orders of the Circuit Court of Will County are affirmed.

Orders affirmed.

ALLOY and DIXON, JJ., concur.


author: PER CURIAM.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Ray Lee Stewart, Defendant-Appellant.
    (Nos. 74-176, 7, 8, 9 cons.;
    Second District (2nd Division)
    December 16, 1974.

      Ralph Ruebner, of State Appellate Defender’s Office, of Elgin, for appellant.
    Philip G. Reinhard, State’s Attorney, of Rockford, for the People.
   PER CURIAM.


text:
    Robert Bainter, Plaintiff-Appellant, v. Lamoine LP Gas Co., Defendant-Appellee.
    (No. 74-207;
    Third District
    December 31, 1974.

      Stuart, Neagle & West, of Galesburg (Roger Williamson, of counsel), for appellant.
    Berry, Leighty & Simshauser, of Macomb, (John V. Simshauser, of counsel), for appellee.
   Mr. JUSTICE STOUDER

delivered the opinion of the court:

This is an appeal by plaintiff, Robert Bainter, from the order of the Circuit Court of McDonough County entering a directed verdict in favor of the defendant, Lamoine LP Gas Co., at the close of all the evidence. The action was brought to recover damages caused by an alleged defect in a gas tank used by defendant to supply liquid propane gas to plaintiff.

There is no substantial dispute as to the basic facts in this case. In 1969 defendant installed a liquid-propane gas tank on the farm premises of the plaintiff. Plaintiff used the gas in his tractors. Defendant retained ownership of the tank and would refill it upon plaintiff’s request. The filler hose was furnished by plaintiff but everything else attached to the tank was furnished by Lamoine. The responsibility for repairs was Lamoine’s, but prior to the date of the occurrence, May 24, 1972, the tank had not been repaired, altered or moved. The tank was equipped with an emergency pressure-relief valve in order to automatically shut off the flow of gas in event the flow pressure became too great. In order to fill a tractor tank with liquid-propane gas, it is necessary to bleed off from it the gas vapor which has accumulated. Plaintiff, Robert Bainter, while attempting to fill his tractor with gas from defendant’s tank on May 24, 1972, bled off vapor which while being bled off ignited. The fire burned through the hose connecting the liquid-propane gas tank to the tractor tank. Burning gas spewed over plaintiff’s premises, destroying two tractors and a tool shed and its contents.

Plaintiff’s theory was based on the premise that when the fire burned through the hose connecting the liquid-propane gas tank to the tractor tank, at that point the pressure of escaping liquid gas should have activated the emergency pressure-relief valve, thereby automatically shutting off fuel to the fire. His complaint is based on a product-liability theory in that he alleged that defendant was engaged in the business of selling LP gas and had installed the tank on plaintiff’s premises for the purpose of selling him gas, that the tank was unreasonably dangerous for the reason that the emergency pressure-relief valve failed to operate, and that such failure was the proximate cause of the destruction of plaintiff’s property by fire. Defendant denied that the tank was defective and that any claimed defect was the proximate cause of the damages.

Defendant’s main argument on appeal is that it was not “in the business” of furnishing tanks. This is based on the premise that in order to apply the strict-liability rule to a case such as the one at bar concerning an alleged defect in the tank rather than in the gas itself, it would be necessary to show that the defendant was “in the business of furnishing such storage tanks.” Defendant also questions whether the record is sufficient to show a defect in the pressure-relief valve or the tank and whether such a defect was the proximate cause of the damages claimed.

The general rule of strict liability in tort in this jurisdiction is stated in Suvada v. White Motor Co., 32 Ill.2d 612, 623, 210 N.E.2d 182. The rule is “[t]he plaintiffs must prove that their injury or damage resulted from a condition of the product, that the condition was an unreasonably dangerous one and that the condition existed at the time it left the manufacturer’s control.” The court cited section 402A of the American Law Institute’s revised Restatement (Second) of the Law of Torts, approved in May 1964, which contains the requirement that the seller be engaged in the business of selling such a product. Plaintiff concedes in his brief that the record does not indicate that defendant as a general practice furnished gas tanks to customers who purchased gas from it. For the sake of resolving the basic issue we shall proceed on the assumption that defendant was not in the business of furnishing storage tanks. The issue then is whether the rule of strict liability in tort is applicable to one who is in the business of selling gas and not the storage tank where a defect in such storage tank was an unreasonably dangerous one, existed at the time it left defendant’s control and was the proximate cause of the damages.

As appellant correctly points out the rule of strict liability is not only applied to manufacturers as in Suvada v. White Motor Co., 32 Ill.2d 612, 210 N.E.2d 182, but has also been applied to distributors (Dunham v. Vaughan Bushnell Mfg. Co., 86 Ill.App.2d 315, 229 N.E.2d 684), to retailers (Vandermark v. Ford Motor Co., 61 Cal.2d 256, 391 P.2d 168, 37 Cal. Rptr. 896), and to lessors (Galluccio v. Hertz Corp., 1 Ill.App.3d 272, 274 N.E.2d 178).

In order to resolve the issue we shall begin by examining the reasoning behind the application of strict liability in tort. As stated in Suvada, “* * ” it seems obvious that public interest in human life and health, the invitations and solicitations to purchase the product and the justice of imposing the loss on the one creating the risk and reaping the profit are present and as compelling in cases involving motor vehicles and other products, where the defective condition makes them unreasonably dangerous to the user, as they are in food cases.” (32 Ill.2d 612, 619.) It would be inconsistent with the reasoning for the rule to allow a dealer of gas to escape liability where a defect in a storage tank furnished by the dealer with the gas caused injury or damage. Such a conclusion is not entirely novel, for there is case law involving analogous situations.

In Pettella v. Corp Brothers Inc., 107 R.I. 599, 268 A.2d 699, the Supreme Court of Rhode Isalnd held a dealer in acetylene gas hable for breach of implied warranties where the defect existed in the tank and in spite of the fact that the court conceded that the tank, itself was loaned, not sold, to plaintiff. The defendant’s rejected contention was that the pertinent provisions of the Sales Act covered only those items actually bought and sold since the only sale was of the acetylene gas and not the cylinder in which it was contained, the warranty provisions of the statute were not applicable to a defect in the cylinder. The court, in holding that a sale of the container was not necessary for a warranty to exist, held it was sufficient to give the warranty if the cylinder was "supplied as part of the contract of sale.”

The Pettella comt conceded there was support in some jurisdictions for the proposition that the statutory section applied only to that which is actually sold and not to the container in which the goods are sold, but cited two cases which in its opinion represented the sounder view. Vallis v. Canada Dry Ginger Ale, Inc., 190 Cal.App.2d 35, 11 Cal. Rptr. 823, and Hadley v. Hillcrest Dairy Inc., 341 Mass. 624, 171 N.E.2d 293.

Since it is undisputed that the .tank was supplied by way of a loan to the plaintiff as a necessary incident of periodic sales of gas, we believe it is immaterial whether a formal lease, either oral or in writing, is entered into between the parties. In any event the furnishing of the tank by the defendant and the use thereof by the plaintiff was an incident of the sale of the gas, and the consideration for the salé included the use of,the tank.

The principal reason advanced by the defendant and accepted by die court for the directed verdict was that previously discussed in this opinion. Not only do we hold that the evidence presents a theory of liability, but we also believe the evidence is sufficient to require that disputed facts and disputed inferences be resolved by the jury.

For the foregoing reasons the judgment of the circuit court of Mc-Donough County is reversed and remanded with directions that plaintiff be granted a new trial.

Reversed and remanded with directions.

ALLOY and DIXON, JJ., concur.


author: Mr. JUSTICE RECHENMACHER.

text:
    Federal Insurance Company et al., Plaintiffs-Appellants, v. Country Mutual Insurance Company et al., Defendants-Appellees.
    (No. 73-92;
    Second District (2nd Division)
    January 9, 1975.

      Gates W. Clancy, of Geneva, for appellants.
    Kell & Conerty, of Woodstock, and Page, Clark & Heaslip, of Rockford, for appellees.
   Opinion by

Mr. JUSTICE RECHENMACHER.