author: Mr. JUSTICE DEMPSEY

text:
    Nancy F. Kerz, Plaintiff-Appellant, v. Hattie Arkin, Defendant-Appellee.
    (No. 54946;
    First District
    — November 18, 1971.

      James N. Vail, of Chicago, for appellant.
    Garbutt & Jacobson Associated and Michael F. Maloney, both of Chicago, for appellee.
   Mr. JUSTICE DEMPSEY

delivered the opinion of the court:

The plaintiff, Nancy Kerz, was driving out of a restaurant parking lot about 6:15 on an evening in November 1967, when her Buick automobile collided with the car of the defendant, Hattie Arkin, which was being backed out of a parking place. Miss Kerz sued for personal injuries and property damage. A jury returned a verdict against her and, in a special interrogatory, found her guilty of negligence which proximately contributed to the collision.

Judgment was entered on the verdict and Miss Kerz requests reversal. She asserts that the trial court erred in denying her motion for a directed verdict because Mrs. Arkin was negligent as a matter of law and that the verdict was contrary to the manifest weight of the evidence. She also complains of trial errors and requests, in the alternative, remandment for a new trial.

Miss Kerz testified that she was driving her auto in an exit lane at four to five miles an hour. She was in the center of the lane and cars were parked on both sides of her perpendicular to the lane in which she was traveling. The evening was dark and her lights were on. She said when she saw the red rear lights go on of a car which was parked to her left and two car widths ahead, she honked her horn in warning. She did not stop or slow down but watched the car until shortly before the accident. She stated that when the front of her auto was slightly beyond the middle of the car it suddenly backed out from between two other parked cars and struck the left door of her auto; that her left arm hit the auto’s arm rest and her elbow was permanently injured. She said she became aware of her injury the following morning when she awoke. Later, when she lifted a coffee cup it fell out of her hand. She consulted Dr. Gerald McCabe, who x-rayed her hand and arm and put her hand in a sling. That afternoon she went to the Lincolnwood police station to report the accident.

Mrs. Arkin, who had had dinner with her sister at the same restaurant, testified that she turned on her lights and started to back out slowly from her parked position, releasing her brakes gradually after first looking and seeing nothing to her left or behind her. She was not moving at more than one or two miles an hour when suddenly “out of nowhere there was a car” and her car bumped into Miss Kerz’ auto. She said Miss Kerz was driving without lights and did not honk her hom. She inspected Miss Kerz’ auto and saw that its headlights were not on and that its left door was dented. Miss Kerz said she was not hurt but was concerned about the damage to her auto because she had been in another accident. Mrs. Arkin said she was sorry at what happened and offered to pay for the damage. Miss Kerz accepted the offer and telephoned Northwest Buick to see if its service department was still open. Miss Kerz drove her auto there and Mrs. Arkin rode with her sister whose car was also parked in the lot. At the dealer’s the damage was estimated at $100.00. At Mrs. Arkin’s request her sister wrote a check for this amount to Northwest Buick to pay for the necessary repairs.

At the close of all the evidence the plaintiff made a motion for a directed verdict. The motion was denied and properly so. The conflicting testimony of the two witnesses to the collision brought their credibility into question. Miss Kerz said her headlights were on; Mrs. Arkin said they were not. Miss Kerz said she blew her horn; Mrs. Arkin said she heard no sound. Miss Kerz said Mrs. Arkin bolted out of her parking place; Mrs. Arkin said she moved very slowly. Miss Kerz said she was behind the parked car when it started to move; Mrs. Arkin said Miss Kerz was not in sight. Miss Kerz said she did not telephone Northwest Buick; Mrs. Arkin said she did. Miss Kerz said Northwest Buick had not been paid for the damage to her auto; Mrs. Arkin said it had. Miss Kerz’ testimony that she did not stop or slow down after she saw the back lights of the parked car go on, could be construed as an admission of negligence. Mrs. Arkin’s willingness to pay for the damage to Miss Kerz’ auto, could be construed as an admission of fault. All these differences raised questions of fact which were properly submitted to the jury. The evidence and the inferences from the evidence when viewed most favorably to Mrs. Arkin did not so overwhelmingly favor Miss Kerz that a verdict contrary to her could never stand.

The plaintiff’s argument that Mrs. Arkin was guilty of negligence as a matter of law is premised upon the proposition that a motorist who backs up without ascertaining what is behind him is negligent. The argument assumes Mrs. Arkin’s guilt. The proposition is applicable only if Mrs. Arkin’s testimony is rejected and Miss Kerz’ accepted in its entirety.

Miss Kerz’ credibility was considerably impaired by the end of the trial and the jury had reason for discounting her testimony. The police officer to whom she reported the accident testified that she told him she had not been injured and that she did not see Mrs. Arkin’s car until the two cars collided. Miss Kerz’ denial of any payment being made for the damage to her auto was refuted by the introduction into evidence of the cancelled check for $100.00 endorsed by Northwest Buick. Her testimony about being out of work for six months after the accident was contradicted by evidence that she was employed in January, February, March, April and May 1968. After saying she worked for one company for a month and a half, she acknowledged being employed for three months. After testifying she could do no typing, she admitted having done typing for two employers.

Whether or not a particular set of facts presents reasons for finding negligence as a matter of law is for die determination of the trial court. (Murad v. Witek (1964), 48 Ill.App.2d 137, 199 N.E.2d 809; Grill v. Bradley (1959), 22 Ill.App.2d 535, 161 N.E.2d 347.) If the evidence is not overwhelmingly one-sided, but requires the weighing of conflicting testimony or permits the drawing of different inferences, the issues are for the jury to decide. It is the function of the jury as a fact-finding body to resolve conflicts in evidence and to make the ultimate determination of liability. (Snyder v. Black (1964), 53 Ill.App.2d 327, 203 N.E.2d 1.) The court did not err in denying the plaintiff’s motion for a directed verdict. Furthermore, the jury’s verdict and answer to the special interrogatory were not contrary to the manifest weight of the evidence.

The alleged Mai errors pertain to the testimony of the police officer, the testimony concerning the payment of damages and the testimony of a doctor who testified for the defense.

The officer had no independent recollection of his conversation with Miss Kerz. He knew only what was in his written report of the conversation, which he brought to court. He looked at the report, refreshed his recollection and then testified. The plaintiff insisted that he was testifying from the report and moved to strike his testimony. The motion was denied and the plaintiff asserts this was error. The officer was directed by the Mai judge to examine the report; he was asked if he was testifying from the report and he replied under oath that he was testifying from his recollection as based on his original report. The manner and mode of refreshing a witness’ memory and the reliability of the means of doing so rests largely within the discretion of the trial judge. There was no error in allowing the officer to refresh his recollection by examining his report and none in refusing to strike his testimony.

The plaintiff, in an answer to a motion to admit facts, in open court and in chambers, objected to any reference to the transaction with Northwest Buick. She contended that the purpose of this testimony was to prove the satisfaction of her claim and that this was an affirmative defense not raised in the defendant’s pleadings.

The issue of damage to the plaintiff’s auto was squarely raised by her complaint. She claimed that her auto was damaged and that she had been deprived of its use and had expended a large sum of money to have it repaired. The defendant’s answer denied these allegations. Thus, the pleadings presented the issue and the court was correct in ruling that the testimony and the check were admissible on the question of property damage.

The plaintiff’s physician, Dr. McCabe, stated that he was a graduate of an osteopathic school of medicine and was a general practitioner licensed by the State of Illinois to practice medicine in all its branches. He diagnosed Miss Kerz’ alleged injury as a tardy paralysis of the ulnar nerve; he outlined the examinations he gave her and treatments he prescribed for her. Dr. Leonard Smith, an orthopedic surgeon, testified in behalf of the defense as a non-examining expert. He was of the opinion that if there was an injury it could not have been a tardy nerve paralysis. Although he disagreed with Dr. McCabe’s diagnosis and treatment, he praised him as his friend and said he was an honorable gentleman, a qualified medical practitioner and a very good osteopathic physician. In response to the question, “What is an osteopath?”, Dr. Smith replied:

“It’s a separate branch of medicine from even general medicine. They treat by medical means as well as physical therapeutic means; that is, massage, heat, and things like that, and manipulation. It’s a separate school. It’s not a regular medical school, but they are licensed under a separate act in the state.”

The attorney for the plaintiff objected and a conference was held in chambers. He stated there were different theories of medicine and osteopathy was one of them, but that there was only one medical practice act in Illinois and Dr. McCabe had the same license to practice medicine as Dr. Smith. He protested that Dr. Smith’s answer conveyed the impression that Dr. McCabe graduated from an inferior school and was not licensed as a physician and surgeon. After some discussion, the defendant’s counsel withdrew the previous question and the juiy was so informed.

The plaintiff argues that the implication in Dr. Smith’s answer about Dr. McCabe’s school was prejudicial and his statement about his being licensed under a different act was inaccurate; and that these errors, together with the other trial errors, deprived her of a fair trial. First, there were no other trial errors; second, the purported implication is exaggerated and third, the statement, although inaccurate, was not belittling. Dr. Smith had a high regard for Dr. McCabe which was expressed in the presence of the jury. He in no way intimated that Dr. McCabe was without proper medical qualifications. The plaintiff was not prejudiced by his testimony.

The judgment is affirmed.

Judgment affirmed.

McNAMAEA, P. J., and McGLOON, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Nick Prignano, Defendant-Appellant.
    (No. 55048;
    First District
    — November 18, 1971.

      Rehearing denied December 30,1971.

      Melvin B. Lewis, of Chicago, for appellant.
    Edward V. Hanrahan, State’s Attorney, of Chicago, (Robert L. Best, Assistant State’s Attorney, of counsel,) for the People.
   Mr. JUSTICE DEMPSEY

delivered the opinion of the court:

Following a jury trial the defendant, Nick Prignano, was convicted of burglary and possession of burglary tools; he was sentenced to one to five years in the penitentiary. He contends that the trial court erred in failing to suppress tainted identification testimony which connected him with the crimes.

Shortly after 2:00 A.M. on January 20, 1969, a security guard of the LaSalle Hotel, 10 North LaSalle Street, Chicago, came upon two burglars in the vault room of the hotel. He noticed tools laid out on a table and on the floor but before he had an opportunity to look closely at the men, one attacked him and the other sprayed a chemical into his face which blinded him. It was impossible for him to give an accurate description of his attackers. After a struggle the intruders fled. They ran down a corridor and into the lobby.

The night manager of the hotel, Jon Van Note, was behind the desk at the west end of the well-illuminated lobby and was facing east. He heard the shouts of the security officer and the footsteps of the fleeing men. He looked to his left and saw the men as they came out of the corridor into the lobby. The taller man ran east through the lobby to the LaSalle Street exit. Although unable to view his face, Van Note noticed that he was over six feet tall, and was wearing a hat, grey raincoat and dark trousers. The shorter man turned toward the south before curving back east and followed his accomplice out the LaSalle Street door. As he was making the turn, Van Note viewed his full face. He was about five feet, six inches tali and was wearing a blue raincoat, hornrimmed glasses, a hat and rubbers. As the men pushed through the revolving door, Van Note leaped over the desk and pursued them.

They ran south on LaSalle, crossed Madison Street and entered an automobile parked on LaSalle between Madison and Monroe. The manager, fearful that they might be armed, lagged behind; but two police officers, Daniel Jacobs and Levonn McCurry, saw the men running, sped to the scene in their squad car, pulled abreast of the parked car and asked the men why they were running. The taller man got in the passenger side and said nothing. The shorter man at the driver’s side, smiled, waved and replied that everything was all right. He jumped into the auto and sped away. The squad car followed them. The officers noted the license number of the auto and reported the pursuit to police headquarters. A radio message alerted other cars in the area.

The chase went through the streets and expressways of Chicago’s near south side and reached speeds up to 80 miles an hour. The policemen briefly lost sight of the pursued vehicle (during which time the taller man apparently escaped) but another squad car saw the auto as it went through a stop sign on 31st Street and curbed it at 31st and Parnell. Eight or nine police cars converged on the scene and Jacobs and McCurry immediately recognized the driver (Prignano) as the smaller man they had seen and talked to. McCurry jumped out of his car, pointed at Prignano and said, “That’s him.” He put handcuffs on Prignano and a wagon crew returned him to the LaSalle Hotel. As Prignano entered the lobby, Van Note, who had not been told that anyone had been apprehended, recognized him at once. Several hours later, Van Note was requested to come to the police station, where he and the officers viewed a lineup at which they again identified Prignano.

Prignano and another man were indicted for the . crimes of burglary and possession of burglary tools. Prior to the trial a hearing was held to consider the defendants’ motion to suppress the identification testimony. The motion was allowed as to the co-defendant and the case against him was stricken. The motion was denied as to Prignano both at the hearing and when it was renewed at the trial. Prignano asserts that this was error because his identification by Van Note at the LaSalle Hotel occurred under such suggestive circumstances, and the lineup procedure at the police station was so prejudicial, that testimony as to both should have been excluded. He further asserts that these improper confrontations led to his identification at the trial and the in-court identification likewise should have been excluded.

A confrontation for the purpose of identification may be so suggestive as to violate due process of law; whether or not a due process violation occurs depends upon the totality of the circumstances surrounding the confrontation. (Stovall v. Denno (1967), 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199. Cf. People v. Nelson (1968), 40 Ill.2d 146, 238 N.E.2d 378; People v. White and Smith (1969), 116 Ill.App.2d 180, 253 N.E.2d 654.) One of the factors to be considered in determining whether a defendant was prejudiced is the lapse of time between the criminal act and the contested identification. People v. Knowles (1970), (Ill.App.2d), 264 N.E.2d 716.

Van Note identified Prignano less than 45 minutes after he ran from the hotel. This prompt, on-the-spot confrontation enabled the police to determine whether Prignano was one of the men who burglarized the hotel and it afforded Prignano the opportunity of being freed if he were not. If Van Note had indicated that the suspect was not one of the men who fled from the hotel, the police could have resumed their search for two rather than one man. The immediate confrontation was proper investigative conduct while Van Note’s memory of the appearance of the men was at its best. (People v. Johnson and Steward (1971), (Ill.App.2d), 273 N.E.2d 503; People v. Lynch (1969), 111 Ill.App.2d 52, 249 N.E.2d 649; People v. Moore (1968), 104 Ill.App.2d 343, 244 N.E.2d 337.) Police officers have a duty to determine as quickly as possible whether a victim of a crime can identify a person taken into custody. People v. Newell (1971), 48 Ill.2d 382, 268 N.E.2d 17; People v. Young (1970), 46 Ill.2d 82, 263 N.E.2d 72.

Van Note’s opportunity to observe the smaller man as he fled from the hotel was a matter of seconds. However, he was alerted by the outcry of the security guard and he saw the profile and then the full face of the man who ran towards him before turning in another direction. After he returned to the hotel, following his pursuit of the men, he was questioned by the police and he described the clothing of the larger man and gave a detailed description of the smaller man. He had no knowledge that the police had caught the vehicle which was being pursued, or that a suspect had been captured and was being brought back to the hotel. When Prignano appeared in the lobby of the hotel accompanied by two policemen Van Note, who did not notice that he was handcuffed, spontaneously exclaimed that he was one of the men who had fled from the hotel. The trial court properly denied the defendant’s motion to suppress the evidence of the hotel identification.

Prignano protests his lack of counsel both at the hotel and lineup, and the manner in which the lineup was conducted. The lineup was held a few hours after Prignano’s arrest. Van Note and Officers Jacobs and McCurry were there. Inasmuch as these witnesses already had identified him the lineup was superfluous. Routine police procedure was adhered to, however, and a five-man lineup was held. Van Note was asked if he recognized anyone and, if so, to place his hand on that person. Without police suggestion or intimation, Van Note singled out Prignano as the culprit. The officers also re-identified him. Prignano was the shortest man in the lineup but, since he neither testified at the trial nor presented a defense, the record is void as to his exact height — although it was variously estimated to be from 4'2" to 5'7". There is no requirement that all men placed in a lineup must be physically identical and differences in size among them, if not too great, are of little consequence.

The United States Supreme Court declared in United States v. Wade (1967), 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149, and in Gilbert v. California (1967), 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178, that a confrontation for identification purposes is a critical stage of a prosecution, at which time the accused is entitled to the presence of counsel. However, the Illinois Supreme Court has held that these decisions apply only to confrontations which take place after indictment. (People v. Palmer (1969), 41 Ill.2d 571, 244 N.E.2d 173.) The defendant insists that the Illinois Supreme Court is in serious error and urges this court not to adhere to its interpretation of Wade and Gilbert. At times we disagree with our Supreme Court but we have never attempted to overrule it.

Finally, we must observe that Van Note’s identification testimony was only one factor leading to Prignano’s conviction which, together with the continuity of the chase, established his guilt beyond all doubt.

Judgment affirmed.

McNAMARA, P. J., and McGLOON, J., concur.


author: Mr. JUSTICE McGLOON

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Alvin Johnson, Defendant-Appellant.
    (No. 55300;
    First District
    — November 18, 1971.

      Gerald W. Getty, Public Defender, of Chicago, (Nunzio Dan Tisci, Shelvin Singer and James Doherty, Assistant Public Defenders, of counsel,) for appellant.
    Edward V. Hanrahan, State’s Attorney, of Chicago, (Robert A. Novelle and Thomas R. Mulroy, Jr., Assistant State’s Attorneys, of counsel,) for the People.
   Mr. JUSTICE McGLOON

delivered the opinion of the court:

This is an appeal from a verdict of guilty returned by a jury in a trial for the offense of aggravated battery. Defendant was sentenced by the trial judge to from five to ten years in the Illinois State Penitentiary, this sentence to run consecutively with defendant’s nine to twelve year sentence for the offense of arson entered earlier by a different judge in a separate case. Defendant argues on appeal that he was prejudiced and denied a fair trial when the State elicited detailed testimony concerning the wounds and permanent injury of complainant over the objection of his counsel, and further that the consecutive sentence imposed by the court was excessive.

We affirm.

The facts of this case can be seen through the testimony of key witnesses presented at trial.

Harron Strickland, the complainant, testified as follows: He was the owner of a tavern located at 5701 South State Street in the City of Chi- . cago. In the early morning of May 31, 1968, he was shot by a person standing outside his front window. With him at the time were his wife Mildred, a neighbor, Ceaser Hubbard, and his porter, Homer Barron. He saw the person who shot him; it was the defendant. He saw the defendant walk past the window a few moments before the shot was fired and raise a rifle (which looked like a “stick” at the time). He knew defendant well and was familiar with his features. He was shot in the left shoulder, and consequently was operated on twice, the doctors removing part of the bone during the second operation. Part of the bullet is still in his left lung, and as a result the lung will never be normal again.

Mildred Strickland, complainant’s wife, testified as follows: She was with her husband in his tavern early in the morning (4:00 A.M.) of May 31, 1968. She had known defendant for three or four years, and had seen him earlier that night on three occasions. The fourth time she saw him he was holding what appeared to be a cane which she thought defendant was going to use to break the tavern windows. A shot rang out and her husband was hit. “He was bleeding like a fountain. Blood was shooting out of him * * * from his chest * * *. It looked like it was coming out of his heart * * *. Blood was shooting up about six inches above him.” She ran outside and saw a police patrol wagon with an officer standing beside it with his gun drawn. She told the officer that defendant just killed her husband. When the officer gave chase, she returned to her husband. Later, when police officers brought defendant to St. Bernard Hospital where her husband was being treated for the gunshot wound, she identified defendant as the man who had done the shooting.

Charles Turner, a police officer, testified as follows: He was cruising in a patrol wagon when he heard a shot. He turned in the direction of the noise and saw a man, whom he identified as defendant, standing outside the Strickland tavern window with a shotgun or rifle in his hand. He fired a warning shot and ordered defendant to halt. Both he and his partner gave chase, but the defendant evaded them. He then returned to the tavern and found the complainant lying “* * * on his back and a lot of blood * * * Oh, a lot of blood. He was real bloody * * # most of the blood seemed to be coming out of his back.” He then placed the complainant Strickland on a stretcher and removed him to St. Bernard Hospital for emergency treatment. He accompanied complainant into the emergency room of the hospital where he viewed the location of the exit wound which he indicated to the jury was, “The shoulder blade, which would be about this spot, under the shoulder blade to the left there was a hole of the size of about a fifty cent piece.” When other officers brought the defendant to the hospital he identified defendant as the man he saw standing in front of the Strickland tavern holding a rifle just after the shots were fired.

Officer Wallace testified as follows: He apprehended defendant two blocks from the tavern, but he was not carrying a weapon. He and his partner brought defendant to the hospital where he was identified by Mildred Strickland as the man who had shot her husband. After leaving the hospital, he returned to the vicinity of the shooting and found the weapon in a vacant lot. The weapon was identified as a 30.30 rifle.

Defendant testified in his own behalf as follows: He was arrested by the police while on his way home from the Club 6000 where he had been all night. He was then brought to St. Bernard Hospital where Mildred Strickland asked him why Wallace Flowers shot her husband. She then denied to the police that he (defendant) was the person who shot her husband but claimed that defendant knew who that person was. He did not shoot Strickland.

Mildred Strickland testified on rebuttal that she positively identified defendant at the hospital as the man who shot her husband.

Joseph Bamberger, a homicide detective, called as a rebuttal witness, testified that he was present when defendant was confronted by Mildred Strickland at St. Bernard Hospital. He testified that the name Wally Flowers was never mentioned. However, he also testified at great length as to the nature and extent of the complainant’s injuries.

Defendant’s first argument before this court concerns the detailed testimony regarding Mr. Strickland’s injuries as testified to by Mr. Strickland himself, Mildred Strickland, Officer Turner, and the rebuttal witness, Joseph Bamberger. Defendant urges that this testimony was of little probative value, inflamed the passions of the jury, and thereby prejudiced his trial. Defendant’s argument stems from the statutory definition of aggravated battery which reads, in part:

“(a) A person who, in committing a battery, intentionally or knowingly causes great bodily harm, or permanent disability or disfigurement commits aggravated battery and shall be imprisoned in a penal institution other than the penitentiary not to exceed one year or in the penitentiary from one to 10 years.
(b) A person who, in committing a battery, either:
(1) Uses a deadly weapon; * * *
(7) ° * * commits aggravated battery and shall be imprisoned in a penal institution other than the penitentiary not to exceed one year or in the penitentiary from one to 5 years.”

Ill. Rev. Stat. 1967, ch. 38, par. 12 — 4.

The defendant argues that subsection (b)(1) defines aggravated battery simply as a battery committed by a person using a deadly weapon. He, therefore, would have us adopt the reasoning of People v. Nickolopoulos (1962), 25 Ill.2d 451,185 N.E.2d 209 and apply it to this case. In Nickolopoulos a defendant was charged with attempted murder. The Supreme Court reversed his conviction because of extensive testimony of the victim’s injuries which was introduced at trial. The Court in Nickolopoulos concluded that:

“A gun is a deadly weapon per se and one who deliberately fires a gun at or towards another person, either with malice aforethought or with a total disregard of human life, may be convicted of assault with intent to kill the person so attacked, irrespective of the extent of the injuries inflicted.” (25 Ill.2d at 454.)

It is important to note that the defendant in the case at bar was not charged with attempted murder but rather with aggravated battery. To establish aggravated battery under either of the two definitions we set out, supra, there must be at least a battery. The definition of battery relevant to our discussion reads as follows:

“(a) A person commits battery if he intentionally or knowingly without legal justification and by any means, (1) causes bodily harm to an individual * * Ill. Rev. Stat. 1967, ch. 38, par. 12 — 3; emphasis added.

From this it follows that, at the very least, there has to be some showing of physical harm to the complainant if a battery such as alleged in the case before us is to be proven, whereas this element is unnecessary in proving attempted murder. This would explain why the State would elicit testimony on the issue of complainant’s injuries.

Furthermore, an examination of paragraph 12 — 4(a)(b), which we set out above, discloses that there is a maximum allowable sentence of 10 years in the penitentiary for a person convicted of aggravated battery when that offense is defined as causing great bodily harm or permanent disability or disfigurement, whereas there is a .maximum allowable sentence of five years in the penitentiary for a person convicted of aggravated battery when that offense is defined as committing a battery by use of a deadly weapon.

If we were to accept the defendant’s argument that once a deadly weapon is shown to have been used in battery, the only issue remaining is one of the identification of the batterer, we would then be faced with the illogical situation wherein it would behoove the criminal to use a deadly weapon in committing a battery because, regardless of the extent of injury, his maximum sentence, if caught, would be only five years in the penitentiary. On the other hand, if he used only his hands to do grave bodily harm to another, he could be sentenced to a term of 10 years in the penitentiary.

Such a result was obviously not the intention of the legislature, and we hold that testimony of the complainant’s injury was of probative value insofar as it tended to prove that defendant caused complainant grave bodily harm or permanent disfigurement or disability.

The complainant’s testimony concerning the injury he sustained was sufficient to accomplish this purpose. The testimony of Mildred Strickland, Charles Turner, and Joseph Bamberger added little probative value to that issue as compared to the tendency it had to inflame the jury and cloud the correct resolution of remaining issue of fact, the identification of the party who committed the battery. This redundant testimony of injury and blood should have been stricken, and the court erred in admitting it at trial.

However, the task of this court is to view the entire record so that it can be determined whether competent evidence was sufficient to support a finding of guilt beyond a reasonable doubt, notwithstanding the admission of the inflammatory testimony. People v. Novak (1967), 84 Ill.App.2d 276, 228 N.E.2d 139.

We find the error complained of harmless. The crucial issue of fact confronting the jury was one of the identification of the person who shot complainant. Defendant admits as much in the brief he filed with this court. The testimony of the complainant, his wife, and Officer Turner fix with definiteness the fact that defendant committed the offense charged. Against this unequivocal testimony presented on the issue of identification we view the error of admitting redundant testimony of complainant’s injury as harmless and not so prejudicial as to deprive defendant of a fair trial.

Defendant’s second argument before this court is that the sentence imposed by the trial court, to run consecutive to another sentence imposed by a different trial court in a different case, is excessive.

Consecutive sentences are authorized in Illinois by the following statute:

“Consecutive and Concurrent Sentences.

When a person shall have been convicted of 2 or more offenses which did not result from the same conduct, either before or after sentence has been pronounced upon him for either, the court in its discretion may order that the term of imprisonment upon any one of tire convictions may commence at the expiration of the term of imprisonment upon any other of the offenses.” Ill. Rev. Stat. 1967, eh. 38, par. 1 — 7(m).

It can be noted from the statute that when convictions for two or more offenses are before the trial court, consecutive sentencing is discretionary. The trial court in this case had before it the fact that defendant had been convicted for the offense of arson and sentenced to a term of from nine to 12 years in the penitentiary. The victims of the arson were the Stricklands, for it was their building which was burned by defendant. Also before the trial court was the fact that defendant had been convicted of theft in 1962, aggravated assault in 1964, and battery in 1965.

Defendant was not a first offender even prior to his arson conviction. The arson conviction arose out of an offense committed while defendant was on bond after being arrested for the aggravated battery which defendant here appeals. These facts make the instant case distinguishable from People v. Lillie (1967), 79 Ill.App.2d 174, 223 N.E.2d 716 wherein a defendant was sentenced to from 12 to 18 years after violating probation by committing misdemeanors. So too is People v. Jones (1968), 92 Ill.App.2d 124, 235 N.E.2d 379 distinguishable. In Jones a 20 year old defendant with no prior convictions was sentenced to from six to 10 years for involuntary manslaughter.

We find that the trial court did not abuse its discretion in imposing the consecutive sentence. Therefore, the sentence of defendant must stand.

Judgment affirmed.

McNAMARA, P. J„ and DEMPSEY, J„ concur.


author: Mr. PRESIDING JUSTICE McNAMARA.

text:
    Albert Gaskin, Plaintiff-Appellant, v. Tracy Gray, Defendant-Appellee.
    (No. 55564;
    First District
    — November 18, 1971.
    Shanesy, Hobbs, Koch, Porter & BaH, of Evanston, (Gregory E. NorweH, of counsel,) for appeHant.
   Opinion by

Mr. PRESIDING JUSTICE McNAMARA.


author: Mr. JUSTICE DRUCKER

text:
    Haydee Castle, d/b/a Castle Home Furnishings, Plaintiff-Appellee, v. Sterling Savings and Loan Association et al., Defendants-Appellants.
    (No. 54641;
    First District
    — November 19, 1971.

      Bernard M. Feldman and Alan I. Boyer, both of Chicago, for appeUants.
    Irving Goodman and Paul M. Smith, Jr., both of Chicago, for appeUee.
   Mr. JUSTICE DRUCKER

delivered the opinion of the court:

Plaintiff filed a petition under section 72 of the Civil Practice Act (IU. Rev. Stat. 1969, ch. 110, par. 72) requesting the vacature of a consent order entered on July 26,1968, dismissing the cause with prejudice, which order was based on a settlement agreement between the parties herein. The court vacated the consent order on August 5, 1969, and subsequently denied defendants’ motion to vacate the order of August 5, 1969. Defendants appeal.

The original complaint in this case was filed on August 7, 1967, against Lawn Savings and Loan Association (hereinafter Lawn) and the defendants herein, Fleetwood Management, Inc., (hereinafter Fleetwood) and Sterling Savings and Loan Association (hereinafter Sterling). It aUeged that the three defendants were wrongfully detaining plaintiff’s property which consisted of assorted apartment furnishings and that they refused to return the property upon proper demand. Defendants Fleetwood and Sterling answered, denying plaintiff’s aUegations and stating a willingness to have plaintiff take possession of any of her furnishings that they might possess. Plaintiff filed a reply denying that defendants were willing to return possession of the furnishings.

Lawn Savings failed to answer and a default judgment for $14,700.75 was entered against it on January 4, 1968. This amount represented the cost of the furnishings that plaintiff installed in ten six-flat apartment buildings allegedly owned by Lawn. The action against Fleetwood and Sterling was set for trial.

Plaintiff’s petition under section 72 in addition to stating most of the background material set forth above alleged the following: that during the trial (July 25, 1968) the court suggested that the parties determine the specific number of apartments that were owned by and under control of the defendants Fleetwood and Sterling; that Bill Smith, president of defendant Fleetwood, testified and “denied any ownership of the remaining * * * ten (10) six-flat units, but admitted that they [Fleet-wood] managed property for Lawn Savings * * * as renting agents and nothing else and that the furnishings and carpeting delivered and installed in * * * [them] ° should be paid for by Lawn Savings * * the present owners, * * that plaintiff relied on this representation and with the approval of the court had an order entered on July 26, 1968, upon the payment of $5000 to the plaintiff, dismissing Sterling and Fleetwood with prejudice; that subsequently plaintiff attempted to execute its judgment against Lawn and first learned that Lawn was in receivership; that in a healing on receiver’s petition for an injunction restraining enforcement of the judgment Lawn proved that Lawn did not own the ten six-flats in question but had entered into a “contract for Articles of Warranty Deed” with Fleetwood on May 7, 1967; “that the representation made by [Smith] the president * * * of Fleetwood * * * was a perjury, in that he definitely stated that said corporation was only managing the property for Lawn Savings * * * and nothing else, but in fact they were the contract purchasers who were operating and enjoying the benefits of the goods, * * * of the plaintiff from May 7, 1967, and at no time did * * * [Smith] indicate in his testimony that they were the contract purchasers of the ten (10) 6-flat units from Lawn Savings * * that Joseph Testa, the president of defendant Sterling Savings is the true owner of Fleetwood and that upon his direction “a substantial down payment” was made to Lawn Savings at the time the contract was executed on May 7, 1967; that if plaintiff had known Fleetwood was the contract purchaser of the property, she [w]ould never have agreed to dismiss the complaint with prejudice as to the defendants * * * upon payment of $5000”; and “[t]hat * * * [the defendants herein], perpetrated a fraud upon the court.”

Defendants filed motions to dismiss the petition alleging among other grounds that the dismissal was entered pursuant to an agreement and that therefore there was no fraud on the court; that the petition7 was not substantiated by the transcript of the aborted trial referred to in the petition; and that plaintiff did not exercise due diligence.

On August 5, 1969, the court entered the following order which in relevant part reads:

“This cause coming to be heard on set call on petition of the plaintiff to vacate the order of July 26, 1968 and defendants Sterling Savings & Loan Assn, and Fleetwood Management motions to dismiss,
The Court having heard arguments of counsel and being fully advised in the premises and having jurisdiction of the same:
It is hereby ordered that plaintiff’s petition to vacate the order of July 26, 1968 be and is allowed and said order of July 26, 1968 is vacated and set aside.”

Defendants then moved to set aside the order of August 5,1969, attaching to their motion as Exhibit A a partial transcript of the original trial for the purpose of showing tihat the witness therein did not give perjured testimony. They also alleged that the court failed to conduct a full and impartial heaiing but rather “summarily and pre-emptorily entered an order vacating the order of dismissal of July 30, 1968, [sic] contrary to all established principles of law and equity.” This motion was denied on September 26,1969.

The record and briefs disclose that the court did not rule on defendants’ motion to dismiss the section 72 petition. Instead the dismissal order of July 26,1968, was vacated. In Lake View Trust and Savings Bank v. City of Chicago, 314 Ill.App. 386 (Abst.) a comparable situation arose. Plaintiff filed a Section 72 petition to vacate an order of dismissal which occurred on a trial call after the parries had agreed that no trial be held until the disposition of a pending case in the Supreme Court. The defendant filed a motion to dismiss the petition. The motion was denied and the order of dismissal set aside. The court held: “The filing of the petition was the beginning of a new suit. When the motion to dismiss it was denied defendant had a right to answer.”

In the instant case the court should first have ruled on defendants’ motions to dismiss. If these were denied, then defendants should have been afforded the opportunity of filing an answer.

Therefore, the order of August 5, 1969, is reversed and the cause remanded with directions to rule on defendants’ motion to dismiss the section 72 petition and for further proceedings not inconsistent with this opinion.

We note that Exhibit A (a partial transcript of the original trial) was not properly before the court and could not be used to raise an issue of fact since motions to dismiss admit as true all facts properly pleaded (Nemerovski & Co. v. Barbara, 106 Ill.App.2d 466).

Reversed and remanded with directions.

ENGLISH, P. J., and STAMOS, J., concur.


author: Mr. PRESIDING JUSTICE LEIGHTON

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Harold MacArthur, a/k/a MacArthur Herod, Defendant-Appellant.
    (No. 54579;
    First District
    — November 23, 1971.

      Gerald W. Getty, Public Defender, of Chicago, (James N. Gramenos, Assistant Public Defender, of counsel,) for appeUant.
    Edward V. Hanrahan, State’s Attorney, of Chicago, (Robert A. Novelle and Daniel J. Pierce, Assistant State’s Attorneys, of counsel,) for the People.
   Mr. PRESIDING JUSTICE LEIGHTON

delivered the opinion of the court:

This appeal is from a judgment which revoked a probation order and sentenced defendant to serve two to ten years for aggravated battery. Two issues are presented. 1. Whether the trial court’s refusal to grant defendant continuance deprived him of the right to counsel and denied him rudimentary due process of law. 2. Whether defendant has been convicted of the crime for which he is imprisoned.

In May 1969 defendant was indicted for aggravated battery and attempt to commit rape. He pled guilty to the attempt to commit rape and the charge of aggravated battery was dismissed. He was admitted to probation for five years, a four-month period of imprisonment was considered served. On August 5, 1969, defendant was charged with violating his probation because he was to appear before another judge, charged with attempt to commit rape. Defendant was brought before the judge who had granted the probation. The public defender was appointed to represent him and hearing of the cause was continued to August 15, 1969. On that day, the assistant state’s attorney announced he would call two witnesses. Defendant’s counsel told the trial judge that he was not ready for the hearing because the defendant wanted a continuance. After a colloquy in which defendant participated, the trial judge instructed the clerk to swear the witnesses. When the first witness was called, defendant then spoke and told the judge, “I want to get a lawyer.” After reminding defendant that he had a court-appointed lawyer, the trial judge ruled that the request for a continuance was too late. The two witnesses were heard; and after the State rested its case, the trial judge revoked the probation.

Defendant contends that refusal of his request for a continuance deprived him of the right to counsel of his choice and denied him due process of law. The record discloses that a week before the revocation hearing, defendant was furnished with counsel, the public defender. When the cause came for trial and defendant requested the continuance, the trial judge asked for the reason. Defendant responded, “I just told you, I am not ready.” The trial judge asked, “Any reason why?” Defendant’s counsel answered, saying to the judge: “I don’t know, your Honor, I spoke to Mr. Herod and he stated he was not ready to proceed on the hearing.” The trial judge then asked: “Wiry aren’t you ready?” The defendant replied, “Because I am not ready.”

Aside from the discourtesy which defendant’s responses reflected, they were not informative. It was not until the trial judge announced the hearing was going to proceed that defendant explained he wanted time to get a lawyer. Defendant was an indigent. He said nothing about the ability to employ a lawyer. He said nothing about anyone else getting a lawyer for him.

The right to counsel guaranteed by the sixth and fourteenth amendments to the federal constitution, by section 9 of article II of the Illinois constitution and by section 113 — 3 of the code of criminal procedure include the right to be represented by counsel of one’s choice. (People v. Payne, 46 Ill.2d 585, 587, 264 N.E.2d 167; City of Chicago v. Purvey (Ill.App.2d), 270 N.E.2d 279.) Important as it is, enjoyment of this right is not absolute. (See People v. Gray, 33 Ill.2d 349, 211 N.E.2d 369; People v. White, 84 Ill.App.2d 178, 228 N.E.2d 169.) A defendant with court-appointed counsel who, on the day a case is set for trial, requests a continuance so he can obtain a lawyer of his choice, must do more than say he is not ready. He must, promptly and with some clarity, give a reason why he wants another lawyer. He must make an ascertainable showing that he, or someone for him, will be able to obtain other counsel. (Compare People v. Green, 42 Ill.2d 555, 248 N.E.2d 116 and People v. Payne, supra.) Defendant did not meet these requirements. Therefore, we conclude that refusal to grant defendant’s request for a continuance neither deprived him of the constitutional right to counsel nor due process of law. People v. Tyson (Ill.App.2d), 264 N.E.2d 403; People v. Leman, 95 Ill.App.2d 2l2, 238 N.E.2d 213.

Defendant contends that he is imprisoned for the crime of aggravated battery without his having been convicted of that offense.. Incarceration of a person without his conviction of the crime for which he is imprisoned is a substantial and fatal error. (People v. Kargula, 285 Ill. 478, 482, 121 N.E. 179.) We have examined the record and find that defendant’s conviction was for attempt to commit rape not aggravated battery, a charge that was dismissed on motion of the State. It appears, then, that defendant is now imprisoned for a crime of which he has not been convicted.

Therefore, the judgment is reversed. Because of the fatal error in the record, the revocation of probation is set aside and the cause is remanded with directions that the trial court either reinstate defendant to probation or grant the State leave to file a petition, in compliance with Ill. Rev. Stat. 1969, ch. 38, par. 117 — 3, which alleges facts to justify another revocation hearing. Then, consistent with accepted and recognized procedural standards, and with the views expressed in this opinion, the trial court in its discretion may determine any claim that defendant violated the conditions imposed when he was given the benefits of tire probation system. (People v. Price, 24 Ill.App.2d 364, 376, 164 N.E.2d 528.) If defendant is found in violation and sentence is imposed, it shall be “[f]or a term not to exceed the maximum penalty for the offense of which the probationer has been convicted.” People v. Livingston, 117 Ill.App.2d 189, 254 N.E.2d 64.

Reversed and remanded with directions.

SCHWARTZ and STAMOS, JJ., concur.


author: Mr. JUSTICE GOLDBERG.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Melvin Mitchell, Defendant-Appellant.
    (No. 55282;
    First District
    — November 22, 1971.
    Richard J. Loefiler, of Chicago, for appellant.
    Edward V. Hanrahan, States Attorney of Chicago, (Robert A. Novelle and Terence J. Mahoney, Assistant State’s Attorneys of counsel,) for the People.
   Opinion by

Mr. JUSTICE GOLDBERG.


text:
    The First National Bank of Lake Forest, Plaintiff-Appellee, v. The Village of Northbrook, Defendant-Appellant.
    (No. 54608,
    First District
    — November 23, 1971.

      Rehearing denied January 5, 1972

      Ross, Hardies, O’Keefe, Babcock, McDugald & Parsons, of Chicago, (Frederic O. Floberg, R. Martin Smith and Paul J. Galanti, of counsel,) for appellant.
    John M. Daley and Jack M. Siegel, both of Chicago, for appellee.
   Mr. PRESIDING JUSTICE LEIGHTON

delivered the opinion of the court:

This is a zoning case. Plaintiff, First National Bank of Lake Forest, as Trustee, sued the defendant Village of Northbrook, seeking a declaration that the Northbrook Zoning Ordinance was unconstitutional and void, insofar as it prohibited development of a multiple-family dwelling project on plaintifFs land. In addition, plaintiff asked for mandatory and prohibitory injunctive relief. Defendant appeared and filed an answer which denied the material allegations of plaintiffs complaint. Thereafter, the cause was heard without a jury. Twelve witnesses testified: eight for the plaintiff and four for defendant, all knowledgeable and some expert in municipal planning, engineering, and zoning. Fifty-three exhibits were admitted, 28 for plaintiff (including the plans for a proposed multifamily project) and 25 for defendant.

This evidence discloses that Dundee Road, also known as State Route 68, is a heavily traveled suburban street from Edens Highway west into the Village of Northbrook. Plaintiff’s land consists of approximately five acres, vacant, rectangular in shape, its southern frontage abutting the north side of Dundee Road, west of the Northbrook Water Filtration Plant which in turn is west of the Chicago and North Western Railroad freight tracks. The land is 165 feet wide east to west, and 1,320 feet south to north. West of it, and adjoining, are three single-family residences. North of the residences, and to the west, is the Green Acres Country Club. On the south side of Dundee Road, across from the subject property and proceeding west, is a forest preserve; its eastern boundary is the Chicago and North Western Railroad freight tracks. East of the tracks, south of Dundee Road, is a town house development, the Colonnades, with 64 attached, single-family residences.

On December 19, 1964, the Trustees of the Village of Northbrook adopted “[a]n Ordinance establishing comprehensive zoning controls and regulations for the Village * * Article VIII regulated residence districts, and after defining general and district requirements, it zoned the Village into five single-family residence districts, R-l to R-5 inclusive, classifications in which multiple-family dwellings were prohibited. Defendant’s comprehensive zoning plan restricted multiple-family structures to the central part or core of the Village. Multiple-family dwellings were permissible only in the two remaining zoning classifications in Article VIII, R-6 and R-7. The land held by plaintiff in trust was zoned R-2.

On December 19, 1967, Mrs. Leone M. Schmidt, then owner of the subject real estate, petitioned the Northbrook Plan Commission to rezone the land from R-2 to R-6 so as to permit its development as a multi-family project consisting of 70 condominium units. At the hearings, one of Mrs. Schmidt’s spokesmen was Gregory Preña, who was described as a general contractor and real estate developer. After notice and hearings, the Plan Commission recommended to the Village Board that the Schmidt petition be denied. On February 6,1968, the Board concurred in the recommendation. On June 13, 1968, Leone M. Schmidt, by warranty deed, conveyed the real estate to the plaintiff with Gregory Preña the sole beneficiary of the trust which holds title to the property. It was on behalf of Gregory Preña that plaintiff filed this suit.

In the trial of the cause, plaintiff’s witnesses who knew the land in question, testified that defendant’s R-2 single-family classification was not the highest and best use for the property. Although neither Gregory Preña nor plaintiff ever tried to sell the subject land as single-family lots or sought to develop it for single-family homes, those who knew its location, size and surrounding uses, testified that economically, it was best suited for a multiple-family project. With one exception, all of plaintiff’s witnesses who were asked testified that the highest and best use for the property was its development as a multiple-family housing complex. The exception was an expert in city planning, who described the R-2 to R-5 zoning classifications of defendant’s zoning ordinance. He said that under R-2, plaintiff’s property could produce seven conforming lots. R-3 would produce 10 lots. Under R-4 there could be 15 or 16 family lots; and under R-5, as many as 20 lots. Although he was plaintiff’s witness, he was of the opinion that the best zoning classification for plaintiff’s property was defendant’s R-4. Later, as a witness for the defendant, he reiterated and expanded on this opinion. Another defense witness supported this view. After defendant rested its case, no evidence was offered in rebuttal. Thereafter, the trial court entered a judgment which found that the highest and best use for plaintiff’s property was its development as a multiple-family dwelling complex of the type and character which plaintiff proposed; and that as applied to plaintiff’s land, insofar as it prevented its use for multiple-family units, the Northbrook Zoning Ordinance was unconstitutional and void. The court declared that plaintiff and those claiming by, through or under it, were entitled to use the subject property for a multiple-family dwelling development “[i]n substantial compliance with the plans submitted in evidence in this cause.” Defendant Village of Northbrook, its agents, servants and employees were enjoined from enforcing the provisions of the ordinance and were directed to issue to plaintiff, on proper application, all necessary permits and licenses for the erection of the proposed multiple-family dwelling project. The issue in this appeal is whether the evidence sustains the trial court’s declaratory judgment and its mandatory and prohibitory injunction.

Defendant concedes that as applied, to plaintiff’s property, its R-2 zoning is unconstitutional. Consequently, in this court, the constitutionality of the R-2 zoning classification is not in issue. (See Mangel & Company v. Village of Wilmette, 115 Ill.App.2d 383, 386, 253 N.E.2d 9.) In issue, however, is the scope of the trial court’s judgment, including the injunction. Defendant contends that plaintiff did not prove the Village was arbitrary and unreasonable in refusing to rezone the subject real estate so it could be developed by a multi-family dwelling project; and that plaintiff did not prove its proposed use of land was reasonable. Furthermore, defendant contends it was error for the trial court to prevent application to plaintiff’s property of the R-3, R-4 and R-5 single-family zoning restrictions of the Northbrook Zoning Ordinance. For these reasons, defendant argues, plaintiff was not entitled to the relief granted by the trial court.

To meet these contentions, plaintiff argues that, measured by standards applied in zoning cases, its evidence sustained the full scope of the declaratory judgment and the mandatory and prohibitory injunction that was issued. Plaintiff insists that the surrounding land uses which defendant has permitted near the subject property (the golf course to the west and north; the water filtration plant to the east; the Colonnades with its 64 family units to the southeast) support the trial court’s declaratory judgment. Plaintiff argues that the subject land is unsuitable for single-family purposes; that its vacant condition reveals the unreasonable character of defendant’s single-family zoning; and that the diminution in property value which plaintiff will suffer as a result of defendant’s zoning restrictions (from $105,000 as a multiple-family housing project to no value, if restricted to single-family homes under defendant’s R-2 zoning classification) is too great when compared with its supposed benefit to the community’s health, safety and welfare.

It is obvious that the trial court did more than declare defendant’s R-2 zoning classification unconstitutional. It declared unconstitutional the entire zoning ordinance of the Village of Northbrook, as it applied to plaintiff’s property, “[ijnsofar as it prevents the use of the subject property for a multiple-family dwelling development as proposed by the plaintiff, consisting of two (2) buildings on the site, with a height of thirty-five (35) feet, containing thirty-six (36) two-bedroom units and thirty-four (34) three-bederoom units, totalling approximately One Hundred Five Thousand (105,000) square feet in floor area, to be serviced by private driveways to Dundee Road, # Included in this declaration of unconstitutionality were defendant’s R-3, R-4 and R-5 zoning classifications. Further, the comt enjoined the defendant, Village of Northbrook, its agents, servants and employees “[f]rom enforcing the provisions of the zoning ordinance of the Village of Northbrook, insofar as said ordinance prevents the use of the subject property as aforesaid * * Finally, the court mandated the defendant Village issue to the plaintiff on proper application “[a] 11 necessary permits and licenses for the erection of a multiple-family dwelling development in the manner herein provided, and that [Village, its agents, servants, employees] be further enjoined from interfering with the plaintiff, and all persons claiming by, through and under it, from utilizing the subject property as herein-above decreed to be their right.”

One who asserts that a zoning ordinance is arbitrary and unreasonable as applied to a particular property, must prove by clear and affirmative evidence that the ordinance constitutes an arbitrary, capricious and unreasonable municipal action; that there is no permissible interpretation which justified its adoption; or that it will not promote the safety and general welfare of the public. (First National Bank of Lake Forest v. County of Lake, 7 Ill.2d 213, 225, 130 N.E.2d 267.) Where, as in this case, plaintiff proposes a particular use for land which is the subject of a zoning controversy, it has the burden of proving that the use is reasonable. (See Mangel & Company v. Village of Wilmette, supra.) In a zoning context, use of land is reasonable when it is consistent with public health, safety, morals and welfare. (See Bohan v. Village of Riverside, 9 Ill.2d 561, 138 N.E.2d 487.) Generally, the most a court may do after declaring that a zoning ordinance is void as applied to a particular property is to find that the proposed use is reasonable and may be permitted. (Fiore v. City of Highland Park, 76 Ill.App.2d 62, 76, 221 N.E.2d 323.) In making this determination, a trial court must exercise extreme care to avoid encroaching on legislative functions relating to zoning which, under our form of government, are delegated to municipal authorities. (Harshman v. City of DeKalb, 64 Ill.App.2d 347, 212 N.E.2d 146.) With this kind of care, the court may frame its judgment according to the evidence with reference to the proposed use; and it may find that the contemplated use is reasonable. When this is done, a court’s judgment neither impinges on the legislative function nor leaves the property unzoned. It limits plaintiff’s use of the land to that contemplated and supported by the record. (Sinclair Pipe Line Co. v. Richton Park, 19 Ill.2d 370, 167 N.E.2d 406; Fiore v. City of Highland Park, supra.) With these principles in mind, we turn to the case before us.

Between its B-2 classification, within which was plaintiff’s property, and R-6, which would permit the multiple-family project, the North-brook Zoning Ordinance has three intervening single-family zoning classifications. Although evidence in this record proves that defendant’s R-2 zoning use is unconstitutional, it does not establish by the requisite degree of proof that all of defendant’s intervening single-family classifications, if applied to plaintiff’s property, are, to use the words of the trial court, “[ujnreasonable, arbitrary, confiscatory, unconstitutional and void. * * (See Chicago & N.W. Ry. Co. v. City of Des Plaines, 97 Ill.App.2d 201, 240 N.E.2d 280.) Indeed, a planning and zoning consultant who testified for plaintiff gave his opinion that plaintiff’s property could be used for single-family construction under defendant’s R-3, R-4 or R-5 zoning classification. Therefore, the evidence in this record gives rise to a question whether defendant’s R-3, R-4 or R-5 zoning would be the reasonable zoning classification for plaintiff’s property. This being so, the question should be answered by the Village Roard of Northbrook, not by the trial court. (Liberty National Bank of Chicago v. City of Chicago, 10 Ill.2d 137, 145-46, 139 N.E.2d 235.) Determination of proper zoning classifications is a function of the defendant municipality. It is neither the province nor the duty of the courts to interfere with the discretion with which municipal authorities are vested, unless the evidence shows clearly and convincingly that their action is unrelated to the public health, safety and morals of the community. Treadway v. City of Rockford, 24 Ill.2d 488, 493-94, 182 N.E.2d 219.

Moreover, we are convinced that plaintiff did not prove its proposed use of the subject land was reasonable, as we have defined this zoning concept. (Bohan v. Village of Riverside, supra.) In fact, plaintiff’s evidence shows otherwise. Plaintiff’s planning and zoning consultant candidly admitted that the proposed multiple-family project would have an adverse effect on the adjoining single-family residence. With one exception, no witness for the plaintiff testified concerning the reasonableness of the proposed use. The exception was defendant’s expert in city planning, who was called as a witness by plaintiff and who gave his opinion that the best way to develop plaintiffs property was under defendant’s R-4 zoning classification. When this witness later testified for defendant, he detailed the modes by which plaintiffs property could be developed under the R-3, R-4 and R-5 zoning classifications. He supported his testimony with sketches, exhibits and cost estimates. He agreed, in conformity with plaintiffs theory, that under defendant’s R-2 zoning, plaintiffs property could not be put to its highest and best use. He insisted, however, that the highest and best use for development of plaintiff’s property was defendant’s less restrictive R-4 single-family zoning regulations. This opinion was supported by the testimony of a real estate broker who had dealt in the Northbrook area real estate for six and a half years, primarily in residential properties. The broker was of the opinion that a single-family house on plaintiff’s land, zoned R-4, could sell for $65,000 to $70,000. If plaintiff’s land were zoned R-3, the broker thought a home could be sold for $75,000 to $80,000. It is true that one of plaintiff s witnesses was of a contrary view. This fact, however, does not detract from the corroborative effect the broker’s testimony had on that of the expert in city planning.

In addition to the testimony of these witnesses, the Green Acres Country Club called the owner of a single-family residence west of plaintiff's property. This witness had lived in the area since 1962. He knew the land involved and he described the single-family characteristics of the surrounding uses. He said that plaintiffs proposed use of its land was unreasonable because a multiple-family project would be totally inconsistent with the character of the neighborhood as it had developed under defendant’s comprehensive zoning. Plaintiff did not rebut the testimony of these witnesses. The trial court did not make any finding of fact nor reach any conclusion concerning the reasonableness of plaintiffs proposed use of its land. This should have been done. See La Salle National Bank v. City of Chicago (Ill.App.2d), 264 N.E.2d 799.

Instead, the trial court declared that plaintiff and all persons claiming by, through and under it, had the right, without interference by defendant, Vfilage of Northbrook, its agents, servants and employees, to use its real estate for a multiple-family dwelling development in substantial compliance with the plans in evidence. In effect, the trial court imposed on an area heretofore zoned R-2 single-family, defendant’s R-6 general residence district classification which permits a multiple-family housing complex of the kind plaintiff proposed for its property. This imposition encroached on the legislative functions relating to zoning which are delegated to the defendant, Village of Northbrook. Harshman v. City of DeKalb, supra.

This being the case, the mandatory and prohibitory injunction granted plaintiff by the trial court was not justified. It is generaUy said that a mandatory injunction is an extraordinary remedial process granted only in cases of great necessity. (Lyle v. City of Chicago, 357 Ill. 41, 191 N.E. 255; Malchow v. Tiarks, 122 Ill.App.2d 304, 258 N.E.2d 811.) Plaintiff s evidence did not establish a case that warranted the injunctive relief granted by the trial court.

For these reasons, we affirm only the trial court’s declaration that as applied to plaintiffs property defendant’s R-2 zoning classification is unconstitutional. In all other respects, the judgment and the mandatory and prohibitory injunction are reversed. This cause is remanded with directions that the trial court retain jurisdiction of the subject matter and of the parties to permit defendant, Village of Northbrook, either on plaintiffs application or on its own initiative, to rezone plaintiffs property under any provision of the Northbrook Zoning Ordinance which the municipal authorities in their discretion shall determine. If after the Village of Northbrook has acted and plaintiff, or any party in interest, desires to assert that the Northbrook Zoning Ordinance, as thus applied to the subject property, is arbitrary, unreasonable, or in any manner unconstitutional, the trial court may allow amendment of pleadings as may be necessary to put in issue the constitutional questions, or others which the parties may present to the court. Thereafter, the trial court may enter judgment not inconsistent with the views expressed in this opinion.

Affirmed in part, reversed in part, and remanded with directions.

SCHWARTZ and BURMAN, JJ„ concur.

       Green Acres Country Club, a not-for-profit corporation, owner of land which adjoins part of the subject property, petitioned and was granted leave to intervene as a party defendant. It filed an answer identical with the one filed by the Village of Northbrook. At the trial, it called one witness. After judgment was entered, it filed a notice of appeal to this court identical with the one filed by the Village. After the cause was docketed, it asked leave to adopt the brief and argument of defendant, Village of Northbrook. We allowed the motion. Therefore, in this opinion, when reference is made to defendant, Village of Northbrook, we mean to include the intervener defendant-appellant, Green Acres Country Club.


author: Mr. PRESIDING JUSTICE ENGLISH

text:
    Bernard M. Kaplan, Plaintiff-Appellant, v. The Greater Niles Township Publishing Corporation et al., Defendants-Appellees.
    (No. 53996;
    First District
    — November 24, 1971.
    Ruben, Kaplan & Lasky, of Chicago, (Bernard M. Kaplan, of counsel,) for appellant.
    Sherwin Willens, of Chicago, for appellees.
   Mr. PRESIDING JUSTICE ENGLISH

delivered the opinion of the court:

Plaintiff brought an action to recover damages from defendants for alleged defamatory and libelous statements written by defendant Roland R. Moore, Jr., and published by defendant The Greater Niles Township Publishing Corporation. Defendants’ motion for judgment on the pleadings was granted, and plaintiff has appealed.

All facts before us must be taken from the pleadings. For four years, commencing in April, 1965, plaintiff was a member of the Board of Trustees of the Village of Skokie. Defendant Publishing Corporation is the publisher of “The News,” a suburban weekly newspaper of general circulation in Skokie, Niles, Morton Grove, Lincolnwood and Golf. Defendant Moore is the President of the Publishing Corporation and the Editor-Publisher of “The News.”

When plaintiff took office as a Trustee in 1965, a ViHage of Skokie ordinance, adopted in 1961, fixed the salaries of ViHage Trustees at $25 per meeting attended, not to exceed more than one meeting per week. By reason of Article 9, Section 11 of the IUinois Constitution of 1870, as implemented by Ill. Rev. Stat. 1963, ch. 24, par. 3 — 13—1, the rate of compensation for trustees could not be increased or diminished so as to take effect during the term for which elected. In August of 1965, the statute (Ill. Rev. Stat. 1985, ch. 24, par. 3 — 13—7) was amended to permit a village with a population of 60,000 or more to adopt an appropriate ordinance to fix the compensation of its trustees at not to exceed $35 per trustee for attendance at one meeting a week. In December of 1966, the Skokie Board unanimously fixed the rate of compensation at $35 per meeting, effective April 15, 1969, but this rate was not applicable to plaintiff.

In 1967, Section 3 — 13—7 of the statute was again amended, permitting compensation for one weekly meeting in an amount not to exceed $75 plus $25 per month expenses, though again this change was not applicable to plaintiff. On March 11, 1968, plaintiff proposed and the Board of Trustees adopted a resolution directing Skokie’s Corporation Counsel to draft an ordinance raising the regular meeting stipend of trustees to the maximum figure aHowed by this amended enabling legislation, the ordinance to become effective April 15, 1969. In proposing the ordinance, plaintiff pointed out that it would not apply to the current terms of the then members of the Board. On March 25, 1968, a first reading of the proposed ordinance was had.

On March 28, Moore wrote an editorial which was printed on the first page of The News. Entitled, “Greedy Trustees,” it stated in part:

“Skokie trustees are on the verge of voting themselves a 300 per cent increase in salary, plus a never-before-heard-of expense account.
Next Monday the trustees are expected to approve an ordinance increasing their salaries to $75 per meeting, plus a $25 monthly expensive account.”

On April 1, at the regular weekly meeting of the Board of Trustees, plaintiff responded to a question relating to the editorial and the proposed ordinance by saying (as recorded verbatim in the minutes of the Board):

“I think your point is well taken, and think this editorial is misleading, is unfair, and does not teH the truth. It leaves the impression that this Board in passing this ordinance is increasing its own salary. e # #
Now whether or not elected officials should or should not be paid I suppose is a matter of philosophy. I personally think it demeans a community and it demeans the office to ask dedicated men who are serving, and this doesn’t relate to myself at aU, to ask dedicated men who are wilhng to give the public their time and effort. I have done it on the School Board, I have done it for the ViUage, and the salary I get here is not a factor. It demeans the community to ask them * * * it demeans the office. The editor of this paper who wrote this article doesn’t give free advertising. The average member of this Board spends twenty hours a week, and speaking for myself I can use that twenty hours in my law practice, I can use that twenty hours with my family. I need this responsibility like a hole in the head except for my duty as a citizen, and if the average member of the public has that little credence and that little faith in their public officials, an honest Board. We didn’t come into office, no member of this Board came into office for low pay to take money on the side or hold their hands out. This is true of every public official in our professional philosophy. What this Board does is besides the point. But if you want honest government, if you want dedicated government, doggone it, be prepared to pay for it, and don’t give me this business of a dollar a year. That’s hypocrisy.” (Emphasis supplied.)

Mrs. Jean Doney, a part-time reporter and columnist for defendants, was present at the meeting when the above remarks were made. On April 4, 1968, The News carried another front page editorial by Moore which contained the alleged libelous language and reads in its entirety as foUows:

“Our Thoughts

FOR SALE

Skokie’s Village fathers postponed for a week any action on a pay raise — from $25 to $75 weekly — for the six trustees. The ordinance read a week ago was slightly amended, Corp. Counsel Harvey Schwartz said, forcing the delay.

Last Monday, though, several residents appeared at the board meeting to express their concern and disapproval of the proposal, many leaving early when word was passed no action would be taken.

Two housewives did speak out against the move, and Trustee Kaplan felt called upon to set the record straight.

“This is not a self-serving move, it will not directly affect this board because the higher salaries won’t become effective until after the next elections.” Then he added:
“If you want honest, dedicated public servants, be prepared to pay for it.”

That is an interesting statement coming from the trustee who, a few months ago, publicly attacked the integrity of his fellow board members and who, to the best of our knowledge, has never publicly acknowledged he was wrong.

Mr. Kaplan’s words of this week are a further indictment of his fellow trustees as well as of all men and women who serve their communities in, for the most part, no-pay elective and appointive posts.

Mr. Kaplan has said in effect that unless a trustee’s salary is raised to $75 weekly, he will find it impossible to remain “honest and dedicated” and won’t be a candidate for re-election.

It is well Skokians learn these facts. Honesty and dedication have been generally accepted as “not for sale” attributes. We thank Mr. Kaplan for his clarification. We are shocked to learn the sales price is so low.”

Plaintiff’s position is that the editorial entitled, “For Sale,” goes beyond the purview of permissible fair comment, is not a fair abridgment of his remarks, and falsely and maliciously imputes to him comments he did not make. Particularly, as paraphrased in his amended complaint, plaintiff alleges that the editorial libeled him by falsely attributing to him the following remarks:

“* * * that ‘he’ will find it impossible to remain honest and dedicated unless a trustee’s salary is raised to $75.00 weekly, and that plaintiff’s honesty and dedication is ‘for sale.’ ”

Plaintiff further contends that the editorial is not reasonably capable of innocent construction and is libelous per se, as it was maliciously intended to impugn his reputation and to hold him up to public contempt. Plaintiff requested from each defendant $1 as compensatory damages and $1,000,000 as exemplary or punitive damages.

The first question presented, which we deem determinative, is whether the editorial, “For Sale,” is capable of innocent construction, and is thus rendered nonactionable without further consideration. (Coursey v. Greater Niles Twp. Pub. Corp., 82 Ill.App.2d 76, 82, affirmed 40 Ill.2d 257.) In John v. Tribune Company, 24 Ill.2d 437, 442, the court enunciated the doctrine of innocent construction:

“That rule holds that the article is to be read as a whole and the words given their natural and obvious meaning, and requires that words allegedly libelous that are capable of being read innocently must be so read and declared nonactionable as a matter of law.”

See also Grabavoy v. Wilson, 87 Ill.App.2d 193, 202, and cases there cited.

The interpretation of the editorial urged by plaintiff is that an innocent reading is implausible, and that a proper construction of the language brings it within the scope of libel per se (in this case, words prejudicially imputing inability to perform, or want of integrity in the discharge of, the duties of his office or of his profession). We consider such a construction of the words to be unnecessary, and the point, therefore, untenable.

Furthermore, we think that the editorial language is properly interpreted as fair comment on a reasonable paraphrase of plaintiff’s argument that good government must be paid for, which he carried to an unfortunate extreme by inferentially positing the alternative of trustees’ accepting “money on the side.”

We note, additionally, the general policy consideration applicable to cases of this nature, as set out in New York Times Co. v. Sullivan, 376 U.S. 254, 270:

“Thus we consider this case against 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 unpleasantly sharp attacks on government and public officials.”

Defendant’s motion for judgment on the pleadings was therefore properly granted, and the judgment is affirmed.

Judgment affirmed.

DRUCKER and LORENZ, JJ., concur.

       Subsequently, the ordinance was unanimously adopted and took effect April 15, 1969. Plaintiff did not stand for re-election.


author: Mr. JUSTICE GOLDBERG

text:
    Theresa K. Rapacz, Plaintiff-Appellant, v. Township High School District No. 207 et al., Defendants-Appellees.
    (No. 55128;
    First District
    — November 29, 1971.

      Synek, Bishart & Solomon, of Chicago, (Henry T. Synek, of counsel,) for appellant.
    Baker & McKenzie, of Chicago, (Francis D. Morrissey and Michael K. Murtaugh, of counsel,) for appellees.
   Mr. JUSTICE GOLDBERG

delivered the opinion of the court:

Theresa K. Rapacz (plaintiff) filed her amended complaint against Township High School District No. 207 (District) and Insurance Company of North America (Insurer). She sought damages for personal injuries allegedly suffered by plaintiff as a result of negligence of the District. Both the District and Insurer joined in a motion to dismiss the complaint because of service by plaintiff upon the District of a defective notice of the occurrence. By a so-called answer to the motion to dismiss, plaintiff alleged constitutional infirmities in the applicable statute. Upon hearing, the trial court found the challenged sections to conform to constitutional requirements and dismissed the amended complaint as against the District and the Insurer because of failure of plaintiff to serve a proper statutory notice. The order directed, however, that the action proceed against a third defendant, Tonyan Brothers, Inc., whose rights are not in issue here. Plaintiff appeals.

It appears from the well pleaded allegations of the amended complaint that plaintiff was injured in a school building operated by the District. Plaintiff alleged that she was in the exercise of due care and that the District and its employees were guilty of various specified negligent acts and omissions which were the proximate cause of plaintiff’s injuries. The amended complaint also alleged that the District maintained a policy of liability insurance with the Insurer and that this policy contained a waiver of right to refuse payment or deny liability, within policy limits, by reason of non-liability of the District for negligence “* * * and its immunity from suit by reason of the defenses and immunities provided in the Local Government Tort Immunity Act.” This is the type of waiver authorized and required by the applicable statute. 111. Rev. Stat. 1969, ch. 85, par. 9 — 103.

The amended complaint also aUeged, and it is agreed by the parties, that, although plaintiff was injured on September 25, 1968, the written statutory notice served upon the District on March 19, 1969, described the date of the occurrence as September 25, 1967. The statutory provisions regarding notice are set forth in Ill. Rev. Stat. 1969, ch. 85, pars. 8 — 102 and 8 — 103.

Plaintiff urges reversal of the order of dismissal on the grounds that lack of proper notice to the District is among the defenses which have been waived by the Insurer. Plaintiff contends that, if the contrary be assumed or determined so that lack of proper statutory notice is not construed to be a defense under the statute, then Sections 8 — 102, 8 — 103 and 9 — 103 are aU violative of Section 22 of Article IV and Section 2 of Article II of the Constitution of Illinois and also of the 14th Amendment of the Constitution of the United States. The final argument advanced by plaintiff is that since the error in the notice is merely typographical and since both the District and the Insurer had actual knowledge of the occurrence within tire required six-month period, the notice should be deemed sufficient.

Before considering these contentions, one matter requires disposition. It is the established law of Illinois that the public policy of this State prohibits joining a direct action against an insurer with a suit to enforce tort liability of the insured. This principle, and the rationale upon which it is based, are clearly set forth by the Supreme Court of Illinois in Marchlik v. Coronet Insurance Co., 40 Ill.2d 327. Marchlik has been followed by this court in Sims v. Sneed, 118 Ill.App.2d 294. This question has been raised only obliquely in the briefs before us. However, we are obliged to adhere to the public policy of Illinois as enunciated by the Supreme Court and by this court. It follows that plaintiff in this case may not maintain a direct action against the Insurer in conjunction with its action against the District. Therefore, the judgment of the circuit court dismissing the suit as to the Insurer is necessarily affirmed.

We next consider the basic action of plaintiff against the District. This involves a determination of the sufficiency of the notice under Section 8 — 102 of the pertinent statute and of whether Section 8 — 103, requiring dismissal upon failure to comply with the notice requirement, is applicable. Section 8 — 102 requires that the notice contain ° the date and about the hour of the accident * * *.” It will be remembered that plaintiff was injured on September 25, 1968, and the notice served upon the District set forth the date as September 25, 1967. Plaintiff urges strongly that this was merely a typographical error and that the District had actual knowledge so that dismissal of the case is unnecessarily harsh. The rules of stare decisis require that this argument be rejected. The courts of this jurisdiction have traditionally and consistently held that statutes requiring the giving of notice of injuries or accidents to municipalities of every kind are strictly construed and must be followed with complete adherence to each prescribed detail. Where required by the statute, as in the case at bar, dismissal of the suit must necessarily result from a defect in the notice.

We believe that the earliest case in Illinois establishing this doctrine is Ouimette v. City of Chicago (1909), 242 Ill. 501. In that case, plaintiff was injured on October 10, 1905, and the notice specified November 10, 1905. The suit was dismissed. We will not attempt to cite all of the subsequent cases which have adhered to this rule. We will mention only the following: Williams v. City of Gibson, 129 Ill.App.2d 431 (discrepancy of one day); Fannon v. City of Aurora, 106 Ill.App.2d 408 (requirement of personal service of notice not satisfied by mail service); Sappington v. Sparta Municipal Hospital District, 106 Ill.App.2d 255, 257 (actual notice cannot replace formal statutory notice); Riddle v. City of Marion, 44 Ill.App.2d 11 (one month discrepancy in the date); and Frowner v. Chicago Transit Authority, 25 Ill.App.2d 312 (variation of three days between notice and occurrence). These authorities require that we reject plaintiff’s argument that the notice served here constituted statutory compliance so that the judgment of dismissal as to the District should be affirmed.

However, plaintiff strongly urges that the waiver contained in the policy written by the Insurer, as required in Section 9 — 103 of the pertinent statute, actuaUy constitutes a waiver of the defense created by Sections 8 — 102 and 8 — 103; and, consequently, that plaintiff should be permitted to maintain this action.

Two factors compel our rejection of this argument. A policy of insurance is simply a contract between the insurance company and the policyholder. In the case at bar, the parties to the contract are the District and the Insurer. The contract does not impose a direct or primary liability upon the insurer but creates only a liability which is best described as "strictly derivative”, (Garb v. Harris, 87 Ill.App.2d 437). (See also Pohlman v. Universal Mutual Casualty Co., 12 Ill.App.2d 153.) This liability is enforceable for plaintiff’s benefit only after plaintiff has obtained judgment against the District. It foUows that plaintiff may not take advantage of, or benefit from, any waiver set forth in the policy issued by Insurer to the District. The District has never waived its right to assert the defense of inadequate notice granted to it by the statute and plaintiff presently has no cause of action against the Insurer.

The second reason for rejection of plaintiff’s argument of waiver requires a brief statement of the long and rather complicated history of tort liability of municipalities in Illinois. For many years prior to 1959, the courts of Illinois adhered to "the ancient and established doctrine of governmental immunity from tort liability.” (Molitor v. Kaneland Community Unit District No. 302, 18 Ill.2d 11, 29.) We learn from Molitor that this doctrine was not a statutory creation but was adopted by the courts as part of the common law of this State. However, as an exception to the common law rule, school districts and charitable corporations were deemed subject to tort liability to the extent that they had obtained insurance which would protect the charitable trust funds or the public funds of the school district from depletion. Moore v. Moyle, 405 Ill. 555 cited in Molitor, 18 Ill.2d 11 at 35.

Despite a strong and well-reasoned dissent, the Supreme Court of Illinois, in Molitor, swept away the common law doctrine of governmental immunity and held that a school district was liable in tort for the negligence of its employees. Hardly before the ink had dried upon this decision, and pending consideration of a petition for rehearing, the Legislature enacted statutes attempting to restore the common law principle to some extent with reference to various municipalities. See dissenting opinion in Molitor, 18 Ill.2d 11 at 42. Additional statutes were adopted from time to time. Some of them were invalidated by our Supreme Court for constitutional reasons. See Harvey v. Clyde Park District, 32 Ill.2d 60 and Hutchings v. Kraject, 34 Ill.2d 379.

The present statute is an outgrowth and a refinement of this legislation. This statute was originally adopted in 1965 and is known as “Local Governmental and Governmental Employees Tort Immunity Act.” It appears in the revised statutes as ch. 85, pars. 1 — 101 to 10 — 101. This statute is applicable uniformly to every local governing body except only the State of Illinois. Section 1 — 206. Articles II to VII inclusive provide generally for immunity of affected governmental entities from tort liability. Section 8 — 101 provides a statute of limitations of one year as to actions against a local entity. Sections 8 — 102 and 8 — 103, involved in this appeal, provide for service of notice upon the local entity within six months from the date of injury.

Article IX of the statute is concerned with payment of claims and judgments. Section 9 — 103(b) also involved here provides:

“(b) Every policy for insurance coverage issued to a local public entity shall provide or be endorsed to provide that the company issuing such policy waives any right to refuse payment or to deny liability thereto within the Emits of said poEcy by reason of the non-EabiEty of the insured pubEc entity for the wrongful or negEgent acts of itself or its employees and its immunity from suit by reason of the defenses and immunities provided in this Act.”

This section has apparently caused confusion in certain areas. See “Illinois Tort Claims Act: A New Approach To Municipal Tort Immunity in Illinois” (61 N.W.L.Rev. 265 (1966)). We see no confusion in this enactment. It appears to us that this “Local Governmental and Governmental Employees Tort Immunity Act” reestabEshes the common law doctrine of municipal immunity as to the entities it affects. This is done in Article II to VII inclusive of the Act. Section 9-103, appearing in Article IX, provides that a municipaEty may, at its option, elect to waive this statutory immunity; and, in Eeu thereof, may obtain insurance to protect itself. To make the situation clear, however, such poEcies must contain a waiver of immunities by the insurance carrier. In other words, every municipaEty covered by this Act may, at its option, either depend upon the statutory protection of governmental immunity, or it may waive this immunity and protect itself by an insurance poEcy as set forth in Section 9-103(a). In the latter case, to prevent attempt by any insurer to avoid EabiEty by reason of the statutory immunity, the necessary waiver must be included in the poEcy. The District here has elected to waive the statutory immunity and has obtained a poEcy, including the waiver, from the Insurer.

The next inquiry is construction of Section 9-103(b). The conflict presented in this case arises from use of the language “* * * by reason of the defenses and immunities provided in this Act.” This clause refers to the immediately preceding phrase “# * * its immunity from suit # * In our opinion, this statute should be construed as though the two words “the defenses” were not included. It is incongruous to say that a municipaEty has immunity from suit by reason of defenses. Defenses could give a municipaEty abiEty to prevail in any single specific piece of Etigation to which they would apply. Immunity from suit, on the contrary, implies immunity from all, or at least from certain, specified classes of Etigation. All immunity creates a defense but every defense is not an immunity. The words are not synonymous or interchangeable.

A decision which approves deletion of surplusage from a statute to arrive at its proper meaning is Klein v. Department of Registration and Education, 412 Ill. 75. There, the Supreme Court eliminated a three word phrase from a statute in order to arrive at the true intent of the statute and avoid inconsistency. The court stated the appEcable principle as follows (412 Ill. 75 at 86):

“If the main intent of a statute can be collected from the statute, words may be modified or altered, declared surplusage or even supplied so as to obviate any repugnancy or inconsistency with the legislative intent. (People ex rel. Simpson v. Funlchouser, 385 Ill. 396.) By treating the words scheme or plan as surplusage in this case, the intent of the legislature may validly be given effect.”

It is an established principle of construction that all statutes must be reasonably construed so that they will be applied in a practical and common sense manner and so that absurd consequences will be avoided. (Dugan v. Berning, 11 Ill.2d 353, 357.) (See also Scott v. Freeport Motor Casualty Co., 379 Ill. 155, 162 and People ex rel. Board of Education v. Davis, 13 Ill.App.2d 419, 424.) In the case at bar, the construction advanced by plaintiff would have absurd consequences. It would eliminate the legislative requirement of notice to a municipality as well as the statute of limitations in all actions against municipalities which were insured. It would leave the notice requirement and the statute of limitations applicable to all plaintiffs in cases where municipalities had no insurance and depended upon legislative immunity. On the contrary, the construction adopted by this court makes for a rational and orderly solution of these problems.

The intent of this Section 9 — 103, as above stated, is to prevent any insurer from avoiding liability by reason of immunities granted to uninsured municipalities. The immunities created by Article II to VII inclusive are granted only for the benefit of uninsured municipalities. Defenses, established elsewhere in the Act, apply to all municipalities whether they are uninsured and depend upon statutory immunity or whether they have procured insurance. The Legislature did not intend that the waiver of immunities by the insurance company have any effect upon defenses granted to all municipalities including those without insurance.

We find excellent authority reaching the identical result as regards construction of this statute. In Schear v. City of Highland Park, 104 Ill.App.2d 285, this court held, in effect, that Articles II through VI of the statute confer immunities and that the language “and defenses and immunities” contained in Section 9 — 103 should be construed as being limited to these immunities. The same result is reached in Hoffman v. Evans, 129 Ill.App.2d 439, 442 where the statutory requirement of notice is described as “a condition precedent to the cause of action.” The court in Hoffman agreed specifically with the reasoning and result of Schear and held, “that the language of Section 9 — 103 has no application to the six-month notice requirement.” 129 Ill.App.2d 439 at 443. These two authorities are cited with approval in Brown v. Shook, (Ill.App.2d), 268 N.E.2d 883.

We therefore find that the waiver described in Section 9 — 103(b) is limited to “immunities” created by the Act and it has no application to or effect upon “defenses” based upon requirements of notice and limitations.

Plaintiff’s final contention is that construction of the pertinent statute, as above set forth, would violate the rights guaranteed to plaintiff by Section 22 of Article IV of the Illinois Constitution and by Section 2 of Article II of the Illinois Constitution as well as by the 14th Amendment of the Constitution of the United States. No federal authorities are cited by counsel for plaintiff to show that the statute, as above construed, denies plaintiff equal protection of the laws as guaranteed by the 14th Amendment of the Constitution of the United States.

The Illinois Constitution of 1870, in Section 22 of Article IV, prohibited the General Assembly from passing local or special laws in a number of specified categories and prohibited the granting of any special privilege or immunity to any corporation. Section 2 of Article II guaranteed due process of law to all persons. Plaintiff asserts that the above construction of the statute would grant insurance carriers in municipal tort liability cases a six-month notice requirement but insurance carriers in other cases would be penalized by the absence of any notice requirement. Plaintiff, not being an insurance carrier, and having no direct action against the Insurer here, is not affected by this particular factor in any manner. Not being an affected or aggrieved party, plaintiff may not raise or attempt to take advantage of a strictly theoretical constitutional argument. Rosewood Corporation v. Fisher, 46 Ill.2d 249, 259.

Moreover, the only authority cited by plaintiff on this question is Lorton v. Brown County Community School District, 35 Ill.2d 362, appearing in plaintiff’s reply brief. There, the Supreme Court invalidated the notice provisions in an immunity statute which applied only to school districts and non-profit private schools. (Ill. Rev. Stat. 1965, ch. 122, pars. 821-831.) The Supreme Court found this to be an arbitrary classification. On the contrary, the statute involved here is uniformly applicable to every “Local public entity” excluding only the State of Illinois and its agencies. (Ill. Rev. Stat. 1969, ch. 85, par. 1 — 206.) Therefore Lorton is not applicable here.

In addition, we note that those portions of the statute here involved which provide for the requirement of notice to municipalities have been held constitutional by the Supreme Court of Illinois against a contention that separate classification of public entities for purposes of notice in tort claims is arbitrary and is a special law granting special privileges or immunities. The court found that these very notice provisions did not contravene Article IV, Section 22, or Article II, Section 14 of the Illinois Constitution. King v. Johnson, 47 Ill.2d 247.

Upon any analysis of plaintiffs claims, we are impeUed to conclude that the action of the trial court in dismissing plaintiffs amended complaint was proper. The judgment of dismissal is therefore affirmed.

Judgement affirmed.

BURKE, P. J., and LYONS, J„ concur.


text:
    The City of Chicago, Plaintiff-Appellee, v. John A. Hutter, Jr. et al., Defendants-Appellants.
    (No. 55302;
    First District
    — November 29, 1971.

      Rehearing denied January 4,1972.

    John A. Hutter, Jr., of Chicago, for appellants.
    Richard L. Curry, Corporation Counsel of Chicago, (Edmund Hatfield and Howard C. Goldman, of counsel,) for appellee.
   Opinion by

Mr. JUSTICE GOLDBERG.


author: Mr. JUSTICE CREBS

text:
    Lena Hinnen, Plaintiff-Appellee, v. Judy Whitaker, Defendant-Appellant.
    (No. 73-397;
    Fifth District
    May 28, 1974.
    Callis & Filcoff, of Granite City, for appellant.
    Rarick & Cadagin, of Collinsville (Robert W. Cadagin, of counsel), for appellee.
   Mr. JUSTICE CREBS

delivered the opinion of the court:

This is an appeal from a judgment for the plaintiff in a small claims case after a bench trial in the Circuit Court of Madison County.

The suit was for money claimed due for making draperies. Only the plaintiff and the defendant testified. There was a direct conflict in the testimony on several points.

Having reviewed the record we find that no error of law appears, that an opinion would have no precedential value and that the judgment is not against the manifest weight of the evidence.

We therefore affirm in accordance with Supreme Court Rule 23. Ill. Rev. Stat. 1973, ch. 110A, sec. 23.

EBERSPACHER and CARTER, JJ., concur.