author: Mr. JUSTICE HALLETT

text:
    Occidental Fire and Casualty Company of North Carolina, Plaintiff-Appellee, v. Underwriters at Lloyd’s, London, Defendants-Appellants.
    (No. 58367;
    First District (1st Division)
    April 8, 1974.
    Lord, Bissell & Brook, of Chicago (William H. Hiller, of counsel), for appellants.
    Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Chicago (D. Kendall Griffith and William R. Kucera, of counsel), for appellee.
   Mr. JUSTICE HALLETT

delivered the opinion of the court:

The defendant Underwriters, the excess carrier, appeals from a summary judgment that it pay to the plaintiff Virginia Surety, the primary insurer, $35,939.17, as its pro rata share of the costs (legal fees and expenses, etc.) of an earlier unsuccessful appeal by the latter of a personal injury judgment against B. L. Cartage Co., insured by both of them, well in excess of their limits.

In 1954 suit was filed against the Cartage Company and one of its drivers for injuries arising out a collision between one of its trucks and a passenger vehicle. After protracted litigation, judgments were entered in November of 1965 against the Cartage Co, for $100,000 for the driver of the other vehicle and for another $20,000 for the passenger. The assured’s attorneys had been selected and paid by Virginia Surety and, after said judgment, at the sole direction of Virginia Surety, they took an appeal to this court which (110 Ill.App.2d 260), in 1969, affirmed.

Two days later Virginia Surety notified the Cartage Co. and Underwriters that it was tendering the limits of its policy and would take no further appeal or other action. Underwriters then, at its own expense, including interest on tire judgments from and after Virginia Surety’s tender, filed a petition for leave to appeal, which was denied by the supreme court. The judgments were then satisfied in January of 1970, with Virginia Surety paying $20,000, Underwriters paying $50,000 and the Cartage Co. paying the balance of $50,000. Virginia Surety also paid all expenses and costs, including interest, up to the date of its tender; Underwriters paid all expenses and costs of the petition for leave to appeal, including interest on the judgments from the date of the tender to the date the judgments were actually satisfied; and the Cartage Co. itself paid no expenses, costs or interest whatsoever.

In February of 1970, Virginia Surety sued Underwriters, setting out the basic facts above outlined, attaching copies of both policies and contending: (I) that, under Condition 12 of its policy, where the assured had “other insurance” against the same loss, it was not liable for more than its pro rata share of such loss; (2) that, under Condition 1(c) of Underwriters’ policy, where the sum for which such claim may be adjustable exceeds the primary limit and Underwriters consents to the proceedings continuing, it shall contribute pro rata to such costs; and (3) that it was therefore entitled to recover $35,305.69 from Underwriters as the latter’s pro rata share of said costs. In June of 1970, a Count II, seeking another $16,391.52 as Underwriters’ pro rata share of the costs in the trial court, prior to the date of the basic judgments, was filed.

Underwriters answered, including the affirmative defenses: (1) that Virginia Surety lacked standing to sue, in that it had no contractual relationship with Underwriters and was not' a third-party beneficiary of that contract; (2) that, under Underwriters’ policy, it need not pay any portion of such costs (a) because they were not incurred by the assured personally, (b) because all such costs were covered and paid by the primary insurer, and (c) because Underwriters did not in writing authorize the assured to incur them; and (3) that Underwriters’ policy is “excess” insurance, not “other insurance” within the meaning Of the clause relied upon.

Both parties moved for summary judgment. In September of 1972, the trial court entered summary judgment for Underwriters insofar as Virginia Surety sought (in Count II) a pro rata recovery for its costs and expenses in the trial court up to the date of the judgments; and Virginia Surety has not cross appealed. The trial court did, however, enter summary judgment (on Count I) that Underwriters pay Virginia Surety $35,939.17, as its pro rata share of the costs (legal fees and expenses, etc.) of its said earlier unsuccessful appeal of the personal injury judgments.

Virginia Surety’s primary layer policy, after providing the assured with coverages up to $10,000 for personal injuries to any one pesrson and up to $20,000 for total personal injuries in any one action, in pertinent parts further provided as follows:

“Defense, Settlement, Supplementary Payments
As respects the insurance afforded by the other terms of this policy under coverages A and B the company shall:
(a) defend any suit against the insured alleging such injury, sickness, disease or destruction and seeking damages on account thereof, even if such suit is groundless, false or fraudulent; but the company may make such investigation, negotiation and settlement of any claim or suit as it deems expedient;
* * *
(c) pay all expenses incurred by the company, all costs taxed. against the insured in any such suit and all interest accruing after entry of judgment until the company has paid, tendered or deposited in court such part of such judgment as does not exceed the limit of the company’s liability thereon;
* * *
The amounts incurred under this insuring agreement, except settlements of claims and suits, are payable by the company in addition to the applicable Emit of liability of this policy.
* * *
CONDITIONS
12. Other Insurance — Coverages A and B. If the insured has “other insurance against a loss covered by this policy the company shall not be liable under this policy for a greater proportion of such loss than the applicable Emit of liability stated in the declarations bears to the total applicable liability of all valid and collectible insurance against such loss; provided, however, the insurance with respect to temporary substitute automobiles under Insuring Agreement IV or other automobiles under Insuring Agreement V shall be excess insurance over any other valid and collectible insurance available to the insured, either as an insured under a policy applicable with respect to said automobiles or otherwise.”

Underwriters’ policy, in pertinent parts, provided as follows:

“THIS INSURANCE, subject to the terms, conditions, limitations and exclusions hereinafter mentioned, is to indemnify the Assured in respect of accidents * * * for any and all sums which the Assured shall by law become liable to pay and shall pay or by final judgment be adjudged to pay to any person or persons * * * as damages
(a) for bodily injuries, including death at any time resulting therefrom, caused by accident, hereinafter referred to as ‘Bodily Injury’, * * * arising out of the hazards covered by and as defined in the underlying policy/ies specified in the Schedule herein and issued by the VIRGINIA SURETY CO., NO. 30843 hereinafter called the ‘Primary Insurers’,
PROVIDED ALWAYS THAT it is expressly agreed that liability shall attach to the Underwriters only after the Primary Insurers have paid or have been held hable to pay the full amount of their respective ultimate net loss liability as follows:
(a) Bodily Injury
$10,000 ultimate net loss in respect of each person and, subject to that same limit each person,
$20,000 ultimate net loss in respect of each accident; * * * (all hereinafter referred to as the ‘Primary Limit or Limits’); and the Underwriters shall then be hable to pay only such additional amounts as will provide the Assured with a total coverage under the policy/ies of the Primary Insurers and this Insurance combined of
(a) Bodily Injury
$50,000 ultimate net loss in respect of each person and, subject to that same limit each person,
$100,000 ultimate net loss in respect of each accident; and * * *
DEFINITIONS.
* * *
2. Ultimate Net Loss. — The words ultimate net loss’shall be understood to mean the sums paid in settlement of losses for which the Assured is liable after making deductions for all recoveries, salvages and other insurances (other than recoveries under the policy/ies of the Primary Insurers), whether recoverable or not, and shall exclude all expenses and ‘Costs.’
3. Costs. — The word ‘Costs’ shall be understood to mean interest on judgments, investigation, adjustment and legal expenses (excluding, however, all expenses for salaried employees and retained counsel of and all office expenses of the Assured).
* * *
CONDITIONS.
1. Payment of Costs. ‘Costs’ incurred by the Assured personally, with the written consent of the Underwriters, and for which the Assured is not covered by the said Primary Insurers, shall be apportioned as follows:—
(a) In the event of claim or claims arising which appear likely to exceed the Primary Limit or Limits, no ‘Costs’ shall be incurred by the Assured without the written consent of the Underwriters.
(b) Should such claim or claims become adjustable previous to going into court for not more than the Primary Limit or Limits, then no ‘Costs’ shall be payable by the Underwriters.
(c) Should, however, the sum for which the said claim or claims may be so adjustable exceed the Primary Limit or limits, then the Underwriters, if they consent to the proceedings continuing, shall contribute to the ‘Costs’ incurred by the Assured in the ratio that their • proportion of the ultimate net loss is finally adjusted bears to the whole amount of such ultimate net loss.
(d) In the event that the Assured elects not to appeal a judgment in excess of the Primary Limit or Limits the Underwriters may elect to conduct such appeal at their own cost and expenses and shall be liable for the taxable court costs and interest incidental thereto, but in no event shall the total liability of the Underwriters exceed their limit or limits of liability as stated above, plus the expenses of such appeal * * *
3. Attachment of Liability. — Liability under this Insurance shall not attach unless and until the Primary Insurers shall have admitted liability for the Primary Limit or Limits, or unless and until the Assured has by final judgment been adjudged to pay a sum winch exceeds such Primary Limit or Limits.”

.As we see it, the first issue is whether Underwriters’ said “excess layer” policy constituted “other insurance” within the meaning of Condition 12 of Virginia Surety’s above quoted primary policy, so as to bring into effect the “pro rata” provision upon which Virginia Surety relies for its basic contention that it was not itself required to pay all such legal expenses and costs up until it had paid or tendered the limits of its policy.

The “other insurance” provision of Virginia Surety’s policy, above quoted, applies only to “losses,” not to the duty to defend, which Virginia Surety expressly undertook, but Underwriters (under the facts of this case) did not. See Continental Casualty Co. v. Firemans Fund Insurance Co. (10th Cir., 1968), 403 F.2d 291, 322-323; American Fidelity & Casualty Co. v. Pennsylvania Threshermen and Farmers’ Mutual Casualty Insurance Co. (5th Cir., 1960), 280 F.2d 453, 459.

Furthermore, such “other insurance” provision applies only to other insurance at the same level of coverage and not to other insurance which is “excess,” either by contract or as a matter of law, such as is the case here. See Jensen v. New Amsterdam Insurance Company (1965), 65 Ill.App.2d 407, 416, 213 N.E.2d 141; Farmers Automobile Insurance Association v. Iowa Mutual Insurance Co. (1966), 77 Ill.App. 2d 172, 176-177, 221 N.E.2d 795.

As is said in Jensen, at page 412:

“The extent of the limitation of the respective liabilities of General and New Amsterdam, and the conflict, if any, resulting from an attempt to apply the provisions of each policy to a given factual situation, must be determined from the language used in the respective policies. Iowa Nat. Mut. Co. v. Fidelity & Casualty Co. of N.Y., 62 Ill.App.2d 297, 301, 210 NE2d 622, (2nd Dist. 1965); Continental Cas. Co. v. American Fidelity & Casualty Co., 275 F2d 381, 384 (CA 7th, 1960); McFarland v. Chicago Exp., supra, 7; Zurich General Accident & Liability Ins. Co. v. Clamor, supra, 720. The principles involved in the interpretation and construction of insurance contracts are the same as those involved in construing other contracts.' The ‘other insurance’ clauses must be interpreted according to the sense and meaning of the terms which the parties have used. Schweisthal v. Standard Mut. Inc. Co., supra, 230.”

As a result, this “other insurance” clause (Condition 12) does not apply to avoid the general language in Virginia Surety’s policy which expressly required it, in addition to the $10,000 and $20,000 judgment limits, to defend all suits brought against the assured and to:

“pay all expenses incurred by the company, all costs taxed against the insured and all interest accruing after entry of judgment until the company has paid, tendered or deposited in court such part of said judgment as does not exceed the limit of the company’s liability thereon.”

Since all of the legal expenses and costs of its appeal were incurred by Virginia Surety before it tendered the limits of its policy (after the basic judgments had been affirmed), it is obvious that Virginia Surety was itself required to pay all legal expenses and costs of its appeal.

The second issue, as we see it, is whether Underwriters is liable (to whom?) for its pro rata share of such costs under Condition 1(c) of its policy.

The basic 'flaw in Virginia Surety’s contention that Underwriters was required to contribute pro rata to such costs is that said subsection (c) is but one of various possibilities, all preceded by three express conditions precedent or sine qua nons, that such “costs” would only be payable where they were:

“incurred by the assured personally, with the written consent of the Underwriters and for which the assured is not covered by said Primary Insurers.”

As demonstrated above, such costs were covered by Virginia Surety’s policy and definitely were not expenses and costs “for which the assured is not covered by said Primary Insurers.” It therefore follows that this condition does not apply, without regard to whether they were paid by the assured “personally,” or whether the Underwriters ever gave “written consent” to the incurring of any such expenses and costs by the assured.

We therefore conclude that Underwriters was not, under Condition 1(c) of its policy, required to contribute any share whatsoever of the costs on appeal.

A third possible issue is stated by Virginia Surety in its brief as:

“c. The Doctrine of Equitable Subrogation Entitles Virginia Surety to Reimbursement for the Underwriters’ Proportionate Share of the Expenses of the Appeal.”

Under this theory, Virginia Surety here contends that because both insurance companies ultimately had to pay their respective shares of the judgments they should share pro rata in the expenses and costs of the defense of their assured.

The plain and simple answer to this contention is that they did not contract to do so and that they were paid only for that which they did contract to provide. Virginia Surety contracted to pay judgments up to certain limits and also to pay all legal expenses and costs up to such time as had it paid or tendered the limits of its primary policy. On the other hand, Underwriters, insofar as the facts here are concerned, agreed only to pay judgments in excess of Virginia Surety’s limit up to its own limits. It did not, insofar as the facts here are concerned, agree to defend the assured or to share in the costs of defense.

As our supreme court said in Putnam v. New Amsterdam Casualty Co. (1970), 48 Ill.2d 71, 269 N.E.2d 97, at page 86:

“Construing an insurance contract accurately and giving it the effect which its language clearly commands, is not ipso facto a breach of public policy merely because it disappoints [one of the litigants].”

See also Ullman v. Wolverine Insurance Co. (1970), 48 Ill.2d 1, 7-8, 269 N.E.2d 295; Kenilworth Insurance Co. v. Chamberlain (1971), 131 Ill.App.2d 975, 979, 269 N.E.2d 317.

All in all, Virginia Surety was required to and did pay all legal expenses and costs in the trial court and on the appeal up to the time it tendered the limits of its policy, in addition to its share of the basic judgments. And Underwriters paid its share of these judgments, as it had contracted to do, and paid all legal expenses and costs incident to its petition for leave to appeal. Hence each has done precisely what it was paid for and undertook to do and we can perceive no reason to redistribute these expenditures.

We therefore reverse the judgment and remand the case with directions to enter summary judgment in favor of the defendant Underwriters and against the plaintiff Virginia Surety.

Reversed and remanded with directions.

EGAN, P. J., and GOLDBERG, J., concur.


source: Caselaw Access Project

author: Mr. PRESIDING JUSTICE McNAMARA

license: Public Domain

text:
    Glenview Rural Fire Protection District, Plaintiff-Appellee, v. Frank E. Raymond, Defendant-Appellant.
    (No. 59511;
    First District (3rd Division)
    April 18, 1974.

      Harvey J. Barnett, of Rosenthal and Schanfield, of Chicago, for appellant.
    Anthony T. Buckun, of Chicago (David F. Holland, of counsel), for appellee.
   Mr. PRESIDING JUSTICE McNAMARA

delivered the opinion of the court:

The principal issue raised on this appeal is whether a fire protection district has the power to enact an ordinance regulating use of various types of buildings and structures, and requiring, among other things, the installation of automatic sprinkler systems in the common areas of these buildings. Fire protection districts were created by statute in Illinois in 1927. Ill. Rev. Stat. 1971, ch. 127½, par. 21 et seq.

On July 5, 1972, the Glenview Rural Fire Protection District (herein the District) filed a quasi-criminal complaint against the defendant, an architect and developer, charging him with violation of its ordinance. The complaint charged that on or about March 20, 1972, the defendant had failed to install an automatic sprinkler system in the common areas in an apartment building located in the District as required by section 4, par. 14.4(f) of its ordinance. Defendant filed motions alleging that the ordinance was ultra vires, unclear, and without proper standards. After denying these motions, the trial court, sitting without a jury, heard evidence and found defendant guilty as charged and assessed a fine of $100. In addition to his primary contention noted above, defendant also argues that the District’s ordinance is inconsistent and vague; that it is arbitrary and capricious; that the ordinance constitutes an unlawful delegation of authority to the fire chief; and that a portion of the ordinance was never enacted by the District.

The District comprises a large area to the west and north of the Village of Glenview. It includes within its territory, however, a portion of the village of Glenview which was annexed to the village but is still serviced by the District. The District adopted a fire protection code by its ordinance on April 8, 1971. The ordinance, with exceptions and an amendment we shall note, consisted of the adoption of three codes: the Fire Prevention Code of the American Insurance Association, the Cook County Building Code, and the Illinois State Fire Code. None of the foregoing codes required the installation of automatic sprinklers in a multi-family apartment building of ordinary masonry construction. However, the District added sub-paragraph 14.4(f) to section 14.4. This sub-paragraph required the installation of automatic sprinklers in basements, cellars, storerooms, hallways of all apartment buildings more than three stories in height and of apartment buildings more than two stories in height if in excess of 5,000 square feet.

In September 1971, defendant began construction of a 90-unit, 3-story apartment building having an area in excess of 5,000 square feet. The plans did not provide for the installation of an automatic sprinkler system and, in fact, none was ever installed in the building.

Because of our view of the proceedings, it is unnecessary to set forth the facts adduced at trial except to say that only the defendant introduced expert testimony. The expert testimony was to the effect that the installation of sprinklers in the stairways and hallways of the building in question would have no appreciable effect on the life-safety of the building from the standpoint of controlling a fire.

The principal issue as to whether the District had the power to enact such an ordinance is one of first impression in Illinois.

In our judgment, the District ordinance can be upheld only if authority for its enactment has been granted to fire protection districts by the General Assembly in the Act creating fire protection districts (herein the Act) because it is the only enactment authorizing or empowering fire protection districts. Fire protection districts, like all municipal corporations, derive their existence and all their powers from the legislature. They possess no inherent powers and must be able to point out the statute which authorizes their acts. (City of Chicago v. Arbuckle Brothers (1931), 344 Ill. 597, 176 N.E. 761.) In City of Chicago v. Ingersoll Steel & Disc Division (1939), 371 Ill. 183, 20 N.E.2d 287, the court stated at page 186:

“Municipal corporations derive their existence and all their powers from the General Assembly. They possess no inherent powers. If they desire to legislate upon a particular subject or occupation they must be able to point out the statute which authorizes this to be done. Statutes conferring powers upon municipal corporations are strictly construed and any fair or reasonable doubt that an asserted power exists is resolved against the municipality.”

The legislative intent should be sought primarily from the language used in the statute, and where the statutory language is certain and unambiguous, the only legitimate function of the court is to enforce the law as enacted by the legislature. (Certain Taxpayers v. Sheahen (1970), 45 Ill.2d 75, 256 N.E.2d 758.) In the absence of a statutory definition indicating a different legislative intention, courts will assume that statutory words have their ordinary and popularly understood meanings. People v. Blair (1972), 52 Ill.2d 371, 288 N.E.2d 443.

The Act does not expressly authorize districts to prescribe the manner of constructing buildings, or to enact ordinances in regards to buildings so as to make them safe from fire hazards. The District maintains, however, that it derives the power necessary to pass such an ordinance from the phrase “regulate the prevention and control of fire therein,” contained in two sections, 21 and 31, of the Act. In our view, an examination of the meaning and context of the phrase as contained in the Act does ■not support the District’s position.

Section 21 is the purposes clause of the Act and reads in part as follows:

“It is hereby declared as a matter of legislative determination that in order to promote and protect the health, safety, welfare and convenience of the public, it is necessary in the public interest to provide for the creation of municipal corporations known as fire protection districts and to confer upon and vest in the fire protection districts all powers necessary or appropriate in order that they may engage in the acquisition, establishment, maintenance and operations of fire stations, facilities, vehicles, apparatus and equipment for the prevention and control of fire therein and provide as nearly adequate protection from fire for lives and property within the districts as possible and regulate the prevention and control of fire therein; * * *.’

The announced purpose of a fire protection district therefore is to provide physical protection against fires by means of fire departments and apparatus. The words “in order that they may” contained in the first portion of the above section become vital in construing the entire section. The words “in order that they may” reveal the purpose for the creation of fire protection districts, and are implicitly found and inferred in the latter portion of the paragraph as follows:

“and to confer upon and vest in the fire protection districts all powers necessary or appropriate in order that they may engage in the acquisition, establishment, maintenance and operation of fire stations, facilities, vehicles, apparatus and equipment for the prevention and control of fire therein and [in order that they may] provide as nearly adequate protection from fire for lives and property within the districts as possible and [in order that they may] regulate the prevention and control of fire therein; * * *."

Consequently, both grammatically and logically, it is clear that the phrase “regulate the prevention and control of fire therein” does not enlarge the powers given to fire protection districts, but is simply descriptive of the express powers and purposes granted to such districts.

The foregoing analysis is also applicable to the use of the same phrases found in section 31 of the Act. Section 31 reads in part as follows:

“The board of trustees of any fire protection district incorporated under this Act has the power and it is its legal duty and obligation to provide as nearly adequate protection from fire for all persons and property within the said district as possible and to prescribe necessary regulations for tire prevention and control of fire therein. Consistent with this duty, the board of trustees may provide and maintain life saving and rescue equipment services and facilities.”

The phrase indicates that the District may adopt regulations relating to the operation and maintenance of fire stations and apparatus. Again, the phrase is not a broad legislative grant but is merely descriptive of the District’s express powers to provide protection from fires by means of fire departments and equipment. No one challenges the right of the District to regulate its firemen and equipment. However it appears implausible that the inclusion of this phrase in the Act manifests a legislative intent to give fire protection districts a power tantamount to a building code. If the legislature had intended to grant such broad powers to the District, it would have expressly said so.

We also believe that it can be demonstrated, when the purposes of the Act are examined, that the legislature did not intend to give the District the power it claims under the present ordinance. The intention of the legislature in a statute is to be ascertained not only from the language used but also from reasons for enactment and the purposes to be thereby attained. People ex rel. Cason v. Ring (1968), 41 Ill.2d 305, 242 N.E.2d 267; In re Estate of Curtis (1963), 28 Ill.2d 172, 190 N.E.2d 723.

Since 1871, by express language in the Cities and Villages Act (Ill. Rev. Stat. 1961, ch. 24, par. 11 — 8—2), cities and villages have been given the specific powers to regulate and control fire hazards in and about buildings. They also have the specific power to prescribe the strength and manner of construction of buildings. (Ill. Rev. Stat. 1961, ch. 24, par. 11 — 30—4.) Since cities and villages had been expressly granted the authority to control the construction and maintenance of buildings and to regulate buildings to prevent fire hazards, there was no need on the part of the legislature to give such powers to fire protection districts when they were created in 1927. The simple and obvious reason for the Act was to enable, citizens in an area to have a fire fighting service, and to maintain and equip a fire department. We believe it significant that when in 1949 in the Counties Act (Ill. Rev. Stat, ch. 34, par. 422), the General Assembly extended to counties broad regulatory powers over buildings and fire hazards, the legislature acted expressly and with great specificity.

Considering the language and the purposes of the Act, we conclude that there is more than a fair and reasonable doubt that the legislature intended to grant tire power claimed in the present ordinance to fire protection districts. (See City of Chicago v. Ingersoll Steel & Disc Division (1939), 371 Ill. 183, 20 N.E.2d 287.) We hold, therefore, that the requirement in the ordinance for the installation of sprinkler systems in certain types of apartment buildings in the District is void.

Because of our holding, we deem it unnecessary to consider defendant’s additional argument that a grant of such powers to fire protection districts would lead to irreconcilable conflicts with other municipalities. It is also unnecessary to comment on defendant’s other contentions.

For the reasons stated, the judgment of the circuit court of Cook County is reversed.

Judgment reversed.

DEMPSEY and MEJDA, JJ., concur.


author: Mr. JUSTICE McGLOON

text:
    Estelle Gonzalez, Plaintiff-Appellee, v. Robert Batelli et al., Defendants-Appellants.
    (No. 58060;
    First District (3rd Division)
    April 18, 1974.

      Schiller & Schiller, of Chicago, (Levin & Novoselsky, of counsel,) for appellant Batelli.
    Ray Jeffrey Cohen and Alan I. Lapping, of Chicago, for appellant Onesti.
    Lennon, King, Denniston & Carroll (John P. Blake, of counsel), for appellee.
   Mr. JUSTICE McGLOON

delivered the opinion of the court:

This is a wrongful death case in which the plaintiff, the mother of the decedent, alleged that the negligent acts and omissions of the two defendants proximately caused her son’s death when, in a store owned by the defendant Batelli, a handgun allegedly owned by defendant Onesti discharged, fatally wounding her son. After a trial without jury the court awarded judgment to the plaintiff and assessed damages jointly and severally against the defendants in the amount of $20,000.

Both defendants appeal from the judgment entered against them and present the following issues on appeal: (1) whether the evidence proves any breach of duty by the defendant Batelli; (2) whether any negligent act or omission by defendant Batelli was the proximate cause of decedent’s death; (3) whether the evidence proves any breach of duty on the part of the defendant Onesti which proximately caused the' death, and (4) whether the decedent was free from all negligence contributing to his own death.

We reverse.

The pertinent evidence adduced at trial is as follows. At the time of the incident in question the defendant Batelli owned and operated a small neighborhood grocery store on South Western Avenue in Chicago. The store was also a meeting place for Batelli’s friends. The decedent, hereinafter Gonzalez, and defendants Onesti and Batelli were all friends and they, and other friends, would often meét and socialize at Batelli’s store. They would spend time in the store talking to Batelli and one another, read newspapers and make sandwiches. Batelli would not charge his friends for the sandwiches and they were, evidently, not expected to make purchases on these social visits. Batelli testified that the decedent Gonzalez would, on occasion, make small purchases from him, but 90% of the time he came into the store as Batelli’s friend, to visit, and bought nothing. Of all of Batelli’s friends Gonzalez spent the most time in the store with him. The plaintiff, Gonzalez’ mother described her son and Batelli as “inseparable friends”.

On October 25, 1967, the day of the incident in question, both Onesti and Gonzalez had been in and out of the store at various times during the day and early evening. Gonzalez did not purchase anything from Batelli during these visits but had merely engaged in general conversation with Onesti and Batelli. When Gonzalez returned at approximately 9 P.M., Batelli, Onesti and Mario Florio, a 13-year-old neighborhood boy who worked for Batelli, were present in the store.

When Gonzalez entered the store Batelli was behind an “ice cream case” working on business bills and invoices. This ice cream case was one of a series of counters that ran along the north wall from which Batelli served his customers. The ice cream case was approximately 8 feet long and feet high. One end of this case abutted a lower counter used to check out items purchased by customers. Onesti was behind this lower counter, about 5 to 8 feet to the right of Batelli. Florio was further to the right of Onesti restocking some shelves at the far end of the store.

All three witnesses, Onesti, Batelli and Florio, testified that when Gonzalez entered he had a brown paper bag with him. He walked straight over to Onesti and did not speak to Batelli or Florio. Both Batelli and Florio noticed Gonzalez come in but they continued working and paid no attention to the conversation that began between Gonzalez and Onesti.

Onesti testified that Gonzalez removed a handgun from the paper bag and asked him if he wanted to see it. He displayed the gun to Onesti and offered to let him hold it. Onesti further testified that as Gonzalez handed him the gun, handle first, with the barrel pointing at himself, he touched the side, handle or ban-el and, almost simultaneously, the gun discharged wounding Gonzalez in the face. Onesti stated that he did not have his hand on the gun’s handle or trigger at the time and did mot know if Gonzalez’ hand was on the trigger. A prior deposition of Onesti was read into evidence in which the witness stated that as soon as Gonzalez offered the gun to him, Gonzalez pulled it back, saying someone was coming into the store. The entire incident happened quickly and the gun fired 3 or 4 minutes after Gonzalez entered the store. '

Batelli testified that he had no knowledge that a gun was brought on the premises until after the shooting. He did not see the gun in the hands of either Gonzalez or Onesti. He testified that at his position behind the ice cream case his view of the lower counter area where Gonzalez and Onesti were talking was obstructed by a scale and a cash register. This was corroborated by other, witnesses who knew the layout of the store. The first time he saw the gun was a few minutes after the shooting when he saw it on the floor on the customer’s side of the counter.

’. Florio testified he did not see the shooting and never saw a gun in Onesti’s hands. He denied he testified at a coroner’s inquest to the effect that he saw a gun in Onesti’s hands prior to the incident.

After the gun went off .there was, obviously, great confusion in the store. The three made attempts to aid Gonzalez while Batelli called the police and an ambulance.

• Aurelio Gutierrez testified that he entered defendant’s store shortly after the shooting, but before the police arrived. He stated that after seeing .Gonzalez lying on the floor he heard Batelli say to Onesti, “You shouldn’t have been playing around. You shouldn’t have did [sic] it.” Gutierrez also testified that he saw Batelli put a gun into a bag and give , the bag to Florio telling him to dump it in a sewer, whereupon Florio took the bag and left by the back door. He further stated that when he heard the police coming he left the store because he didn’t want to get involved. When later contacted by the police Gutierrez denied any knowledge of the shooting and then told them a story he admitted wás different than his trial testimony. Both defendants denied that Gutierrez was ever inside the store at any time on the. evening óf October 25.

: • One further witness testified that she was familiar with the Batelli store and that it contained a large, wall mounted mirror that could have afforded Batelli a view of the lower counter area on the night of the shooting. She further testified that on her previous visits to the store she had the opportunity to notice that this mirror, a security device to discourage shoplifters, was positioned so that Batelli, seated behind the ice cream case, could see the area where Gonzalez was shot. Batelli testified that he did not, nor could not, see the decedent and Onésti through the mirror.

On this evidence the trial court awarded judgment to the plaintiff and assessed damages against the defendants as aforementioned.

In this appeal defendant Batelli argues that the judgment of the trial court is contrary to the manifest weight of the evidence in that the evidence does not prove that he breached any duty of care that he owed to the decedent Gonzalez. The original complaint alleged that Gonzalez was the customer and invitee of Batelli on October 25, and that therefore Batelli owed him the duty to exercise due care and caution for his safety. The injury to the decedent is not disputed; however, defendant Batelli argues that Gonzalez was not an invitee, but a mere licensee. The issue before this court then, is the status of Gonzalez at the time of the shooting, because if he was a licensee defendant Batelli would only be liable for wilful and wanton negligence, an allegation the plaintiff does not make in her complaint. If Gonzalez was an invitee, as plaintiff alleges, the defendant would be liable for ordinary negligence. (Drews v. Mason (1961), 29 Ill.App.2d 269, 273, 172 N.E.2d 383.) It is obvious that in awarding judgment against Batelli on the instant complaint the trial court concluded Gonzalez was an invitee at the time of the incident.

The materiality of the question of whether the injured party was an invitee or licensee arises from the fact that a heavier duty of care is placed upon an owner of premises toward an invitee than toward a licensee. “Toward an invitee the owner of premises must use reasonable care and caution in keeping the premises reasonably safe for use by such invitee; while toward a licensee no duty is owned by such owner, except not to wantonly and wilfully injure him.” Ellguth v. Blackstone Hotel, Inc. (1951), 408 Ill. 343, 347, 97 N.E.2d 290.

It is frequently a difficult question to decide whether the injured person is a licensee or invitee. A person is said to be an invitee when he goes on the premises of the owner by invitation to transact business in which the parties are mutually interested (Pauckner v. Wakem (1907), 231 Ill. 276, 83 N.E. 202; Ellguth v. Blackstone Hotel, Inc., supra) or, as more recent cases have held, where he goes on the premises in furtherance of the owners business or an activity he conducts or permits on the premises, as where the injured person performs some gratuitous service which benefits only the owner. (Augsburger v. Singer (1968), 103 Ill.App.2d 12, 242 N.E.2d 436; Drews v. Mason, supra; Bogovich v. Schermer (1958), 16 Ill.App.2d 197, 147 N.E.2d 711; Madrazo v. Michaels (1971), 1 Ill.App.3d 583, 274 N.E.2d 635.) However, no one test covers all situations and the facts in each case must necessarily be examined to determine when an invitee ceases to be such and becomes a licensee. Ellguth v. Blackstone Hotel, Inc., supra, at 347.

The undisputed facts in the instant case show that Batelli and Gonzalez were “inseparable friends”. Gonzalez spent a good deal of time in the defendant’s store and 90% of his time on the premises was spent as a friend, not as a customer. On October 25, Gonzalez had been in the store at least once before the shooting. When he returned at approximately 9 P.M. he walked directly up to Onesti and began a conversation. The only evidence adduced at the trial shows that Gonzalez’ actions and conversation on that night were completely unconnected with the business defendant Batelli conducted on the premises. Nor does the evidence indicate he was there to perform an activity that benefited Batelli in any respect. In this regard it has been held that when a person enters a store, not for the purpose of business, but on some personal errand, then the person is merely a licensee, even though he may have previously been an invitee. Wesbrock v. Colby, Inc. (1942), 315 Ill.App. 494, 497, 43 N.E.2d 405.

The facts surrounding Gonzalez’ presence in Batelli’s store on October 25, lead to but one conclusion; he was there as a social guest, to enjoy the company of his friends. In the recent case of Madrazo v. Michaels, supra, the court said:

“[A] social guest’ is a person who goes on the property of another for companionship, diversion, enjoyment of hospitality. He is a licensee who enters the premises of the owner by permission, but for his own purposes. [Citations.] To his social guest the owner is liable only for injuries occasioned by wilful and wanton misconduct.” 1 Ill.App.3d at 586.

However, even if Gonzalez would be entitled to the status of invitee, the instant evidence does not disclose that Batelli breached the duty of reasonable care for the decedent’s safety. There was no evidence that tended to show that Batelli had either actual or constructive knowledge of the handgun prior to the shooting. There was no proof that Batelli, as an ordinary, prudent man, had any knowledge of the probability of danger awaiting his customers. The testimony of one witness that Batelli could have seen the gun being handled by Onesti and Gonzalez, and therefore anticipated the danger, is not sufficient to meet the plaintiffs burden of proof in view of Batelli’s testimony that he neither saw, nor could have seen, the area of the store where the two were standing. The owner of premises is not the insurer of the safety of invitees and is not required to guard against accidents or injuries to them that he could not reasonably foresee. Kincaid v. Lagen (1966), 71 Ill.App.2d 307, 312-13, 218 N.E.2d 856.

For these reasons, and the fact that the plaintiff made no allegation of wilful and wanton misconduct against Batelli, the judgment against him is clearly in error.

The defendant Onesti likewise argues that the judgment against him should be reversed because the finding of the trial court that Gonzalez was free from all contributory negligence in the incident that caused his death was contrary to the manifest weight of the evidence. The defendant contends that the plaintiff failed to meet her burden of proving that Gonzalez was free from any negligence that contributed to cause his death.

The law in Illinois as to the liability of one who by use of a gun inflicts injury on another is not the same as in cases where the injury is the result of some other instrument. “The rule is that if a person is injured by the discharge of a gun in the hands of one who has entire control of it, the burden is upon the latter to prove that the gun was not fired by him, either intentionally or negligently, but that the result was inevitable and without the least fault upon his part.” (Reed v. Kabureck (1923), 229 Ill.App. 36, 43.) However laudatory this rule is in its recognition of the inherent danger that firearms create when handled in proximity to other persons, we cannot apply it to the instant case because the only eyewitness testimony as to the shooting discloses that the gun was not in the exclusive control of the defendant Onesti at the time it discharged. Onesti was the only witness who could testify as to what occurred immediately prior to and as the gun discharged, and he testified that although he may have touched the handle of the weapon, he did not touch the trigger, and the gun discharged while it was being handed to him by Gonzalez. Although Florio and Batelli were in the store they did not see what happened when Gonzalez was wounded. There is also a dispute as to the ownership of the weapon; the plaintiff alleged the gun belonged to Onesti and Onesti testified that it belonged to Gonzalez. There was no other evidence tending to prove ownership of the weapon except the testimony of Batelli and Florio who saw Gonzalez enter with a paper bag.

In any event the only eyewitness to the actual shooting of Gonzalez was Onesti and he testified that although he may have touched the gun he did not cause it to go off. Unable to apply the above-quoted rule to the facts in the instant case, the burden remained on the plaintiff to prove that the decedent was in the exercise of due care at the time he sustained the injury causing his death, (McInturff v. Chicago Title & Trust Co. (1968), 102 Ill.App.2d 39, 46, 243 N.E.2d 657.) We find that this burden was not met by the plaintiff as there was no substantial proof with reference to whether Gonzalez was in the exercise of ordinary care immediately prior to the shooting. Neither the testimony of Onesti nor the testimony of Gutierrez to the effect that shortly after the shooting he heard Batelli teE Onesti that he “shouldn’t have been playing around”, meets this burden. There was no evidence which more strongly supported the plaintiff’s allegation that the decedent was free from contributory neghgence than supported inferences to the contrary. “It is clear that damages cannot be assessed upon a mere surmise and conjecture as to what possibly happened to cause an injury. The law requires affirmative and. positive proof of actionable neghgence as to the proximate cause of injuries suffered to warrant an assessment of liability.” Sansone v. Atchison, Topeka & Sante Fe Ry. Co. (1967), 83 Ill.App.2d 435, 437, 228 N.E.2d 101; Wilkerson v. Cummings (1944), 324 Ill.App. 331, 344, 58 N.E.2d 280.

For these reasons the judgment of the circuit court of Cook County is reversed.

Judgment reversed.

McNAMARA, P. J., and MEJDA, J., concur.


text:
    319 South La Salle Corporation et al., Plaintiffs-Appellees and Cross-Appellants, v. Julius Lopin et al., Defendants-Appellants—(General Parking Corporation et al., Defendants-Cross-Appellees.)
    (No. 58144;
    First District (3rd Division)
    April 18, 1974.

      Hoffman and Davis and Howard C. Goode, both of Chicago (Maurice L. Davis, of counsel), for appellants.
    Ross, Hardies, O’Keefe, Babcock & Parsons, of Chicago (John B. Angelo and William D. Serritella, of counsel), for appellees.
    Rusnak, Deutsch and Gilbert, of Chicago (Richard H. Deutsch and Gerald D. Chiss, of counsel) for cross-appellees.
   Mr. PRESIDING JUSTICE McNAMARA

delivered the opinion of the court:

Plaintiff lessee and its officers and shareholders brought suit in the circuit court of Cook County against defendant lessors for reformation of a lease. On July 31, 1972, the trial court, after a trial without a jury, entered an order against the original lessors directing that the lease be reformed by the deletion of paragraph 21(e). The original lessors appeal from that order. At the same time, the tidal court denied reformation of the lease as to the original lessors’ purchaser, General Parking Corporation, and plaintiff lessees have filed a cross-appeal from that portion of the order.

Plaintiffs John Daros and Hugh Gillespie were the sole shareholders and officers of lessee. Defendants Julius Lopin and Henry Mann were beneficiaries of a certain trust and were authorized to direct the original lessors’ actions. Gordon Prussian was president of General Parking, which purchased the property from the original lessors.

In May 1968 plaintiffs leased all the restaurant and tavern facilities in the Atlantic Hotel located in downtown Chicago. The lease was for 10 years at a total rental of $420,000, payable in equal installments at $3,500 per month. Plaintiffs also agreed to expend a minimum of $100,000 in remodeling and refurbishing the facilities during the first year of the lease.

Plaintiffs’ amended complaint in pertinent part charged as follows: that, during lease negotiations, Daros on behalf of plaintiffs refused to execute a lease because it contained paragraph 21(e) permitting lessors to terminate the lease on 90 days’ notice if lessors decided to sell or demolish the building; that defendants Lopin and Mann agreed to delete paragraph 21(e) from the lease and that plaintiffs relied on these misrepresentations; that by mutual mistake of Daros, Gillespie, Lopin and Mann, or by the mistake of said plaintiffs and by the fraud of said lessors, paragraph 21(e) was not deleted from the lease, and the lease therefore did not embody the parties’ agreement; that in December 1969 lessors sold the property to General Parking; and that on December 42, 1969, General Parking wrongfully terminated the lease. (The amended complaint also sought to reform the lease by deletion of paragraph 6. The trial court in its order did not delete paragraph 6, and plaintiffs apparently have abandoned that request.)

Defendants’ answer denied mutual mistake, denied fraud and concealment, and stated that the lease as executed contained the intent and actual agreement of the parties. The answer also contained certain affirmative defenses: that plaintiffs had affirmed the existing lease through an amendment of September 4, 1968; that in three separate judicial proceedings plaintiffs asserted their rights under the lease as executed; that plaintiffs were barred by laches; and that since plaintiffs were in default in the payment of rent, they were legally barred from seeking relief against defendants.

At trial the following pertinent evidence was adduced. Plaintiffs Daros and Gillespie testified that in May 1968 they had a conference with defendants Lopin and Mann regarding the proposed lease. The plaintiffs were represented by attorney Andrew Cardaras, while defendants were represented by attorney Howard C. Goode. When Cardaras informed plaintiffs that the lease contained a 90-day cancellation clause in the event of sale or demolition, Daros, an experienced restaurant owner, refused to execute the lease. After discussion Lopin and Mann agreed to remove the clause, paragraph 21(e). The two plaintiffs further testified that Goode said he would draft another lease and bring it to Cardaras. On the following Saturday, May 11, 1968, Daros and Gillespie went to Cardaras’ office and signed the lease, Plaintiffs’ Exhibit 2. After the signing, Daros stated that he never saw the lease again until the notice of eviction was served in December 1969. It was then that he first learned that paragraph 21(e), the cancellation clause, had not been deleted from the lease.

Andrew Cardaras, the lawyer representing plaintiffs in May 1968, testified that after Daros refused to sign a lease containing a cancellation clause, defendant Mann said that he would not sign a lease without such-.a clause. Mann then suggested that the clause remain in the lease, but that he would give plaintiffs a letter that in the event the cancellation clause was exercised defendants would reimburse plaintiffs for their expenditures on a sliding scale. Cardaras advised plaintiffs that such a letter would be adequate security. Howard Goode, defendants’ attorney, agreed to redraft the lease to remove certain other objectionable items. Goode returned with the lease and, according to Cardaras, stated that the letter suggested by Mann would be forthcoming after the lease was executed, the lease being conditioned upon the delivery of the letter. Daros and Gillespie executed the lease, Plaintiffs’ Exhibit 2, on May 11, 1968, in Cardaras’ office. Cardaras further testified that he knew at the time paragraph 21(e) was contained in the lease. After the following Monday, May 13, Cardaras no longer represented plaintiffs. On the date plaintiffs signed the lease, Cardaras made a few written notes on the lease.

Defendants Julius Lopin and Henry Mann and their attorney Howard C. Goode testified at trial that there was no conversation with Daros, Gillespie and Cardaras concerning the striking of paragraph 21(e) from the lease. The subject was not discussed at any meeting. The witnesses also testified that neither Mann nor any of them talked of delivering a letter to plaintiffs regarding reimbursement of plaintiffs’ expenditures in the event of lease cancellation. The subject was never discussed.

Gordon Prussian, president of General Parking, testified that his company purchased the property from the original lessors in June 1969 for $1,250,000. Prior to purchasing the property, he exámined the subject lease and observed the cancellation clause. Prussian was not aware of any claim by plaintiffs that paragraph 21(e) was to have been deleted until the filing of the present suit. During the summer of 1969, he observed remodeling in the coffee shop area of the hotel. Prussian was told by Lopin and Mann that the work was being done by the tenants, and that a restaurant would be open in the near future. The restaurant was operating in the fall of 1969, but closed, in mid-November. Rent was not paid in December 1969. General Parking was the largest auto-parking company in Chicago, but at the time of this purchase, it intended to lease the premises back to Lopin and operate a successful hotel with a restaurant. It decided to demolish the building when it received notice of cancellation from Lopin and Mann. After a drug store lease expired in April 1970, the premises were demolished and the property presently was being used for surface auto parking.

At trial Gillespie produced Plaintiffs’ Exhibit 4, purporting to be the lease of the property. He testified that it had been delivered to his office sometime before September 1968, but he did not know or remember who delivered it. Various paragraphs, including 21, are deleted from Plaintiffs’ Exhibit 4. However, the document appears to be incomplete. Portions of page one are missing, so that it does not show either the date of the instrument or the lessors’ names. Certain paragraphs are deleted in mid-sentence. Gillespie testified that he turned over Plaintiffs’ Exhibit 4 to Cardaras’ successors -as plaintiffs’ counsel. Cardaras testified that the copying machine in his office could make copies of the type found in Plaintiffs’ Exhibit 4, while Goode testified that the exhibit was not and could not have been prepared in his office.

Subsequent testimony indicated that exhibit 4 was used by plaintiffs in negotiating a loan from the Small Business Administration. It was also brought out at trial that in March 1969 plaintiffs sought an injunction against defendants and other parties relating to a labor dispute. To the complaint for injunction was attached a lease, a reproduction of Plaintiffs’ Exhibit 4. Defendants filed an answer to that complaint and alleged that the attached lease was incomplete. The answer attached that portion of the lease which was missing. Plaintiffs filed a reply to other portions of the answer, but did not challenge defendants’ assertion with respect to the lease.

At the conclusion of all the evidence, the trial judge reformed the lease in question as to the original lessors by deleting paragraph 21(e). The trial court denied reformation as against lessors’ purchaser, General Parking. In discussing the reasoning of the order, the court commented that it would be incredible that plaintiffs, in view of their restaurant experience, would knowingly execute a lease providing for a minimum expenditure of $100,000 in the first year but also providing that they could be evicted in 90 days. The judge also found unbelievable testimony on behalf of the defendants that no discussion concerning cancellation took place.

Reformation of a contract should be allowed only when clear and convincing evidence compels the conclusion that the instrument as it stands does not properly reflect the true intention of the parties, and that there has been either a mutual mistake or a mistake by one party and fraud by the other. (Booth v. Cole Corp. (1970), 121 Ill.App. 2d 77, 257 N.E.2d 265; Swan v. Allstate Insurance Co. (1967), 89 Ill. App.2d 205, 232 N.E.2d 491.) In an action for reformation a written agreement is presumed to express the intention of the parties. (Jogger Manufacturing Corp. v. Addressograph-Multigraph Corp. (1952), 346 Ill.App. 1, 104 N.E.2d 655.) An action to reform a written agreement rests upon the theory that parties came to an understanding but in reducing it to writing, through mutual mistake or by mistake on one side and fraud on the other, some provisions agreed upon was omitted, and the action is brought to so change the instrument as written as to conform to a contract agreed upon by inserting the omitted provisions or striking out the one inserted by mutual mistake. (Harley v. Magnolia Petroleum Co. (1941), 378 Ill. 19, 37 N.E.2d 760.) In a reformation suit, the plaintiff has a higher burden of proof than in an ordinary civil lawsuit, and must prove a case by very strong, clear and convincing evidence. (State Farm Mutual Auto Insurance Co. v. Hanson (1972), 7 Ill.App.3d 678, 288 N.E.2d 523.) Further, written instruments may not be reformed on grounds of mistake of fact unless the mistake existed at the time of the execution of the instrument. Sedlacek v. Sedlacek (1969), 107 Ill.App.2d 334, 246 N.E.2d 6; Wilcox v. Natural Gas Storage Co. (1962), 24 Ill.2d 509, 182 N.E.2d 158.

Under the foregoing criteria, we believe that the evidence was not sufficiently clear and convincing to entitle plaintiffs to a reformation of the contract, and that the trial court erred in reforming the lease by deleting paragraph 21(e). Even if the testimony presented by the defendants Lopin and Mann and their attorney is completely disregarded, as the trial judge was entitled to do, the testimony presented on behalf of plaintiffs as to their actual agreement with defendants was contradictory and in conflict. While plaintiffs Daros and Gillespie testified that defendants promised to remove paragraph 21(e), plaintiffs’ attorney Andrew Cardaras testified that defendants made no such assurance or agreement. In fact, plaintiffs’ counsel stated that at the time plaintiffs executed the lease he was aware that paragraph 21(e) remained in the lease. Indeed, Cardaras added that defendant Mann was insistent that on behalf of defendants he would never execute a lease which did not contain a cancellation clause as set forth in paragraph 21(e). Under such circumstances, the language of our supreme court in Christ v. Rake (1919), 287 Ill. 619, 622, 122 N.E. 854, is very pertinent:

"* * * A written instrument will not be reformed on the ground of mistake unless the evidence that it does not express the intention of the parties is such as will strike all minds alike as being unquestionable and free from reasonable doubt. The remedy of reformation on account of an alleged mistake is never granted upon a probability nor upon a mere preponderance of the evidence but only upon evidence amounting to a certainty."

Plaintiffs maintain, however, that defendants perpetrated a fraud in concealing the fact that paragraph 21(e) had not been deleted from the final draft of the lease. This charge is belied by the uncontroverted evidence that plaintiffs Daros and Gillespie executed the final draft of the lease while in their attorney’s office, with no representatives of the defendants present. Under those circumstances, it is difficult to perceive what concealment had taken place. Moreover, Cardaras was aware that paragraph 21(e) remained in the lease, and the fact that Daros and Gillespie failed to personally examine the contents of the lease prior to execution does not diminish the legal effect of the knowledge acquired by their attorney and agent. (See County of Cook v. Schroeder (1965), 55 Ill.App.2d 449, 205 N.E.2d 257.) While much attention was devoted at trial to Plaintiffs’ Exhibit 4, a purported lease of the premises with paragraph 21 deleted, it is clear that in executing the actual lease, Plaintiffs’ Exhibit 2, plaintiffs placed no reliance on the existence of Plaintiffs’ Exhibit 4. The existence of the latter document, admittedly vague, in no way supports plaintiffs’ claim that defendants concealed the fact that paragraph 21(e) remained in the lease executed by plaintiffs. Nor does the record support the charge that defendants by misrepresentation led plaintiffs to believe that its Exhibit 4 was the actual lease. Plaintiffs were not entitled to a reformation of the lease.

In view of our holding that plaintiffs did not establish this right to a reformation of the lease against the original lessors, it is unnecessary for us to consider plaintiffs’ cross-appeal that the trial court erred in denying a reformation as to the original lessors’ purchaser, General Parking.

Accordingly, that portion of the order of the circuit court of Cook County denying reformation of the lease as to General Parking is affirmed. That portion of the order granting reformation of the lease in favor of the plaintiffs against the original lessors is reversed.

Order affirmed in part; reversed in part.

DEMPSEY and McGLOON, JJ., concur.


author: Mr. JUSTICE L. L. RECHENMACHER

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Paul Teichler, Defendant-Appellant.
    (No. 72-215;
    Second District
    May 8, 1974.
    Ralph Ruebner, Deputy Defender, of Chicago, for appellant.
    Loren Golden, State’s Attorney, of Mt. Carroll (James W. Jerz, of Model District State’s Attorneys Office, of counsel), for the People.
   Mr. JUSTICE L. L. RECHENMACHER

delivered the opinion of the court:

Defendant waived counsel and indictment and pleaded guilty to a complaint charging forgery. The trial court sentenced him to 2 years’ probation with the first 8 months to be served at the State Farm at Vandalia. The only point urged by defendant on appeal is that the complaint did not sufficiently identify the forged instrument as “an instrument apparently capable of defrauding another,” thus depriving the court of jurisdiction to accept a guilty plea and to enter a judgment of conviction.

The complaint charged that on February 22, 1972, defendant committed the act of forgery “in that Paul Teichler with intent to defraud, knowingly delivered two checks each dated February 22, 1972, payable to the order of cash for $29.00 with the name of Raymond Teichler as maker, knowing that said check [sic] to have been made such that it [sic] purported to have been made by authority of Raymond Teichler who did not give such authority; which is in violation of Chapter 38, Paragraph 17 — 3(2) of the Illinois Revised Statutes.”

No copies of the instrument or instruments were attached. It is obvious that the complaint does not state that the checks were drawn on a bank or set forth the name of such bank. One of the essential elements of the offense of forgery is that the accused made “any document apparently capable of defrauding another in such manner that it purports to have been made by another * * *.” (Ill. Rev. Stat. 1971, ch. 38, par. 17 — 3(a)(1).) Defendant urges that the failure to set forth the name of a drawee bank renders the accusation insufficient because it could not be said that the instrument described in the complaint is “apparently capable of defrauding another”.

The State argues that by labeling the instrument a “check” the complaint adequately alleged “a three party negotiable instrument capable of defrauding another” and that no more was necessary. However, it is apparent that the complaint identified only two parties to the instruments, i.e., the maker (Raymond Teichler) and the payee (cash). No third party (bank) is mentioned. The salient feature of a check would be the drawee bank and its name.

In People v. Nickols (1945), 391 Ill. 565, 569, the court defined a check as follows: “A check is defined as a draft or an order upon a bank purporting to be drawn upon a deposit of funds, for the payment of a certain sum of money to a certain person named therein, or to his order or to bearer.” In People v. Moats (1972), 8 Ill.App.3d 944, the court held that an information charging forgery which described a check identifying the bank and maker, but making no reference to a payee or amount, did not identify an instrument capable of defrauding another and reversed the conviction even though the defendant pleaded guilty. In People v. Dzielski (1970), 130 Ill.App.2d 581, 584, which holds in a forgery case that as long as the indictment “explicitly identifies and describes the instrument” it is not necessary to set it out exactly, we said:

“In order to confer jurisdiction upon the court, an indictment must be sufficient to enable the defendant to prepare his defense, and to sustain a plea of judgment in bar to any further prosecution for the same offense. [Citations.] If the indictment is not sufficient to charge an offense, a judgment of conviction may not be upheld even though on a plea of guilty; and such defect may be raised for the first time on appeal. [Citations.]”

We hold that the complaint did not sufficiently charge the offense of forgery and the judgment of conviction must, therefore, be reversed.

Judgment reversed.

T. MORAN, P. J., and GUILD, J., concur.

         Even though defendant does not raise the point, we note that the complaint, after referring to two checks, does not make clear whether $29 represents the amount of each check or the aggregate sum of both, and that it then twice refers to “check” in the singular number.


author: Mr. JUSTICE SEIDENFELD

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. William Herman Lyons, Defendant-Appellant.
    (No. 71-7;
    Second District
    May 8, 1974.
    Paul S. Chervin, of Waukegan, for appellant.
    Jack Hoogasian, State’s Attorney, of Waukegan (William J. Jones, Assistant State’s Attorney, and James W. Jerz, of Model District State’s Attorneys Office, of counsel), for the People.
   Mr. JUSTICE SEIDENFELD

delivered the opinion of the court:

William Herman Lyons, the defendant, was charged with the offense of driving while license revoked (Ill. Rev. Stat. 1971, ch. 95½, par. 6 — 303). He was convicted on October 8, 1970, after a bench trial and sentenced to 120 days’ imprisonment in Vandalia. He appeals, urging for reversal that he did not understanding^ waive his right to a jury trial and that he was not afforded an independent hearing in aggravation and mitigation. We have also taken with the case a motion by defendant to reverse and remand for the failure of the record to show that defendant was admonished as to his right to have counsel present and knowingly waived that right as declared (subsequent to this trial) in Argersinger v. Hamlin (1972), 407 U.S. 25, 32 L.Ed.2d 530, 92 S.Ct. 2006.

The proceedings below were not reported; and neither the defendant nor the State have furnished a bystander’s report of proceedings or a stipulation of facts. Ill. Rev. Stat. 1971, ch. 110A, par. 323(c),(d).

The common-law record contains a photocopy of a waiver of jury signed by the defendant on August 13, 1970. It also contains the following docket entry on that date:

“Deft, appears in open Court without counsel — Deft, advised of his rights — Waives trial by jury — Pleads not guilty — Deft, found to be 33 years of age — Cause set for hearing 9-10-70, 9:30 A.M.”

The common-law record imports verity and is presumed to be correct unless contradicted by other facts in the record. (People v. Williams (1963), 27 Ill.2d 327, 329; People v. Irvin (1972), 6 Ill.App.3d 550, 552.) A verbatim transcript, or in its absence, a bystander’s report or stipulation pursuant to Supreme Court Rule 323(c), or (d) would have furnished a more complete basis for a review of the issues defendant has raised. But in the absence of a better record, we will review the issues based upon the common-law record alone. People v. Bowers (1972), 4 Ill.App.3d 453, 456.

We conclude that the common-law record in this case is not sufficient to show that the defendant, who was sentenced to imprisonment for the misdemeanor charge, was specifically advised of his right to counsel or that he knowingly and intelligently waived his right to be represented by counsel at his trial. (Argersinger v. Hamlin (1972), 407 U.S. 25, 32 L.Ed.2d 530, 92 S.Ct. 2006.) See also People v. Morrissey (1972), 52 Ill.2d 418, 420-421, and People v. Coleman (1972), 52 Ill.2d 470, 471, holding that Argersinger is to be applied retroactively.

Were we to hold otherwise we would be required to give effect to the single statement in the common-law record: * * * “Deft, advised of his rights * * *", a conclusive effect in every case in which the defendant does not avail himself of other methods provided for supplying a record. We are not prepared to go that far, particularly in this case which was heard at a time when the rule of Argersinger was not known tb be in effect and in all probability was not one of the “rights” of which defendant was advised as stated in the common-law record.

In this view we do not reach the remaining issues raised by the defendant.

The judgment therefore is reversed and. remanded for further proceedings in accordance with this opinion.

Reversed and remanded.

GUILD and RECHENMACHER, JJ., concur.

       We disagree with People v. Hopping (1973), 16 Ill.App.3d 275, 276 ( 3d Dist. No. 72-297), cited by the State, which interprets Bowers as standing for the rule that the sufficiency of admonitions by the court may not be reviewed without either a verbatim report or a bystanders report of proceedings, Cf. People v. Bailey (1973), 12 Ill.App.3d 779.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Emma Lee Clay, Defendant-Appellant.
    (No. 73-39;
    Second District
    May 8, 1974.

      William L. Balsley, of Loves Park, for appellant.
    Philip G. Reinhard, State’s Attorney, of Rockford, for the People.
   Mr. JUSTICE SEIDENFELD

delivered the opinion of the court:

Defendant was convicted of the offense of theft under $150 after a bench trial and sentenced to 1 year in Dwight. She appeals, contending that she was denied her right to a jury trial, that she was not proven guilty beyond a reasonable doubt, that it was error for the trial judge to transfer the case for sentencing, and that the court erred in denying her motion for a free psychiatric examination.

We conclude at the outset that there is merit to defendant’s claim that she was wrongfully denied the right to withdraw a written jury waiver and that the cause must be remanded to give defendant the right to a trial by jury.

The transcript of the arraignment which took place on May 30, 1972, shows that defendant was present without counsel. When asked by the court how she would plead, she first answered, “Guilty, I guess”, and then, “Guilty”. The court refused to accept the plea when it appeared on inquiry that defendant denied that she either stole the dresses which were the subject of the theft, or aided in the theft. It then appears from the transcript:

“The Court: I will enter a plea of not guilty and show a jury waiver and set this matter for pre-trial conference.
(Whereupon, the waiver of the jury was executed by the defendant as indicated by the Court.)”

The transcript of the proceedings is devoid of any inquiry which could reflect on a knowing and understanding waiver of jury. Even the common-law docket entry, while reciting certain other admonishments, makes no reference to the defendant being advised of her right to a jury trial and merely recites “and jury waiver signed”.

The trial court has the duty to ascertain that waiver of jury is expressly and understandingly made. (People v. Wesley (1964), 30 Ill. 2d 131, 133. See also People v. Petersen (1974), 17 Ill.App.3d 927, 308 N.E.2d 828 (abstract opinion).) Waiver of jury trial (Ill. Rev. Stat. 1971, ch. 38, sec. 115 — 1) cannot be presumed from a silent record. (People v. Rosen (1970), 128 Ill.App.2d 82, 85. Cf. People v. Karabatsos (1971), 131 Ill.App.2d 33, 36.) We have held that a signed jury waiver by itself is insufficient to show a relinquishment of defendant’s constitutional right to a jury trial. People v. Gaston (1971), 132 Ill.App.2d 900, 901; People v. Spates (1971), 132 Ill.App.2d 902.

The State argues that there is an affirmative showing in the record that defendant understandingly and voluntarily entered this particular jury waiver. The State’s reliance on a stipulated statement of facts relating to the hearing on the motion to withdraw the signed jury waiver to supply evidence of a waiver at the time of arraignment, is misplaced. The stipulation recites:

“On July 6, 1972, the Defendant appeared in Court with her attorney and made an Oral Motion to set aside the jury waiver. She testified that she did not realize that she was signing a jury waiver at her arraignment. The Motion was denied upon the Court’s finding that the waiver was knowingly and voluntarily made.”

The State argues that the judicial hearing, together with a written form, provides an adequate safeguard that the constitutional right was knowingly waived. We do not have before us, however, any record which we may review to confirm that the defendant was advised and knowingly gave up her right to a jury trial on the bare conclusion of the court at a later hearing that the waiver was knowingly and voluntarily made on a previous occasion.

The case must therefore be reversed and remanded with instructions to allow defendant’s motion to withdraw her jury waiver.

As an aid to the trial court on remand we will rule on one of the issues raised which may arise on re-trial.

We conclude that the trial court properly denied defendant’s motion for a free psychiatric examination on the record before us. The determination of the court after conducting an inquiry into the matter that no bona fide question of defendant’s competency to stand trial was raised was well within the court’s discretion, and is not challenged by the defendant. See People v. Zerba (1960), 20 Ill.2d 269, 271; People v. Patch (1970), 44 Ill.2d 447, 452; Brown v. People (1956), 8 Ill.2d 540, 545-546.

Defendant is apparently contending that because she had a psychiatric history she should have the benefit of an examination and expert testimony to inquire into the possibility of raising a defense of insanity at the time of the charged offense. An indigent defendant may be entitled to funds to hire an expert witness where the expert testimony is deemed crucial to a proper defense. (People v. Watson (1966), 36 Ill.2d 228, 232-234; People v. Winfrey (1973), 11 Ill.App.3d 164, 166), but here no showing was made that the psychiatric examination was crucial to a proper defense. The sanity of the defendant at the time of the crime was not placed in issue by the defendant. The court, therefore, did not abuse its discretion in denying public funds so that defendant could explore the mere possibility of raising insanity as a defense.

We reverse the judgment below and remand with directions to the trial court to allow defendant’s motion to withdraw her written waiver of jury and to permit a re-trial before a jury.

Reversed and remanded, with directions.

GUILD and REGHENMACHER, JJ., concur.