text:
    Melvin Champion, a Minor, by His Mother and Next Friend, Willie Mae Champion, Plaintiff-Appellee, v. Edmund Knasiak et al., Defendants.—(Illinois Bell Telephone Company et al, Defendants-Appellants.)
    (No. 60354;
    First District (5th Division)
    December 13, 1974.

      L. Bow Pritchett and Edward Butts, both of Chicago, for appellants.
    Michael H. Postilion and Frank P. Kronenberg, both of Chicago, for appellee.
   Mr. PRESIDING JUSTICE SULLIVAN

delivered the opinion of the court:

This is a negligence action brought on behalf of a minor plaintiff to recover damages for personal injuries sustained when he was allegedly struck by two automobiles, the first owned by defendant Edmund Knasiak and driven by defendant Joellyn Knasiak, the second owned by defendant Illinois Bell Telephone Company (hereafter Bell) and operated by defendant Richard Coleman, its employee. The trial court directed a verdict in favor of Edmund Knasiak on the ground that Joellyn Knasiak was not operating his automobile as his agent. The jury then returned a verdict for the plaintiff in the amount of $28,000 against the remaining three defendants. Judgment was entered on the verdict from which only defendants Bell and Coleman have appealed.

The issues presented for review are (1) whether plaintiff failed to prove that Coleman and Bell proximately caused any injury to him; (2) whether plaintiff’s counsel prejudiced defendants’ rights to a fair trial in (a) placing in evidence events after the accident, (b) asking Coleman to comment on a written statement made by other witnesses, (c) inferring that defendants had concealed evidence, and (d) appealing to prejudice; (3) whether the court erred in permitting a youth who witnessed the accident to state his opinion on Coleman’s ability to avoid the accident and further in permitting counsel for plaintiff to comment on the opinion; and (4) whether the trial court’s refusal to hold a hearing at the trial to determine the competency of the plaintiff’s minor witnesses deprived Coleman and Bell of a fair trial.

The accident in question occurred on 103rd Street, a short distance west of Wallace Avenue in Chicago. Plaintiff, age 6%, was running across 103rd Street in a northerly direction when he was struck by an eastbound vehicle driven by Joellyn Knasiak, the impact catapulting him into the westbound lane. An approaching westbound Bell automobile driven by Coleman stopped near where tire boy had fallen. The evidence conflicted as to whether the Bell vehicle struck plaintiff.

James Champion, plaintiff’s brother, 9 years of age at the time of trial, testified that he, plaintiff, and Billy Jordan were playing on the south side of 103rd Street in Billy Jordan’s front yard when plaintiff left to get a shovel at his house on the north side of 103rd Street. From Billy’s front yard, he saw plaintiff get hit by two cars going in opposite directions. First, a white car hit him. Then, as plaintiff was in the street trying to get up, the front part of a green car struck him. James also said that he first heard a car skid, and when he looked out he saw plaintiff falling. He saw the front left wheel of the white car strike plaintiff; plaintiff was struck on the way back from his house after getting a shovel; but James did not tell his mother he had witnessed the accident because he was scared. In fact, he denied having seen the accident when asked by his mother on numerous occasions for more than four months after the accident.

Another of plaintiff’s brothers, Jerry Champion, 11 years of age at the time of trial, testified that he was on the front porch of the Champion house on the north side of 103rd Street when he heard a car putting on its brakes. He looked up and saw a white car going east toward Wallace that had already hit plaintiff and was stopping. Plaintiff was flying through the air and landed in the westbound lane slightly west of Wallace. Jerry ran down the porch steps, around to the front of the house and toward plaintiff. When he was a few feet from plaintiff, he saw for the first time an approaching green car down by a pet shop east of the Wallace intersection with 103rd Street. Plaintiff was lying on his back with his head touching the center line of 103rd Street and his legs to the north in the westbound lane. Although he stated that the green car came by and hit plaintiff, he did not know what part of plaintiff’s body was struck nor what part of the green car made contact. The green car did not stop immediately but traveled two or three car lengths beyond plaintiff, who was still thrashing around after the green car hit him. Jerry saw only one person in the green car. After the occurrence, Jerry went back to the house and got his mother.

Michael McAlister, age 15, worked part-time at the Fernwood Newspaper Agency on the northeast corner of the intersection of 103rd and Wallace. He testified that he was walking west across Wallace close to the north edge of 103rd Street. When he was about halfway across Wallace, he observed plaintiff leave the. sidewalk on the southwest corner of the intersection and run directly north across 103rd Street. McAlister saw an approaching eastbound light-blue Pontiac and “hollered” at plaintiff to stop. At that instant, the left front side of the Pontiac struck plaintiff in the left thigh area. McAlister heard the Pontiac’s brakes screeching, and although he had no driving experience at that time, he estimated its speed at 30 to 35 miles per hour. The Pontiac traveled about 15 feet after impact and left skid marks on the street. The lady who had been driving the Pontiac left it in the position where it stopped and got out.

McAlister further testified that plaintiff was thrown up into the air and landed on his back in the westbound lane. His head was on the center line and his feet were to the north. He laid still after landing. McAlister immediately started to run towards plaintiff at an angle to the southwest but looked over his left shoulder to the east before crossing into the street and saw the westbound Bell car crossing Wallace. He estimated its speed at 30 miles per hour. The Bell car passed him on his left and struck plaintiff without slowing down or changing direction. McAlister could see its taillights, and they did not go on before it hit plaintiff, although it stopped at impact.

McAlister stated that he was near the northwest comer when the Bell car passed him, but he was able to run behind it and to the south in time to see the left front tire run over plaintiff’s leg. At that time, plaintiff was lying only a few feet west of Wallace. He did not know which leg was run over by the Bell car.

McAlister stated that when the Bell car stopped, plaintiff’s legs and thighs were beneath the car forward of the left rear wheel. Plaintiff was lying with his head to the south and his legs to the north. McAlister heard the Bell driver say, “I thought it was a dog.” The Bell driver held plaintiff in his arms until an ambulance arrived but left the scene before the police arrived. The Pontiac driver also left but later returned after the police had arrived. McAlister gave the police the license number of tire Bell car.

Joellyn Knasiak testified that she was driving eastbound on 103rd Street approaching Wallace, traveling at 24 to 30 miles per horn:, when plaintiff suddenly appeared in her lane of travel a short distance ahead of her. She applied her brakes and swerved to the right but struck the boy. She did not see the Bell car strike plaintiff, but after she stopped her car she saw the Bell car stopped in the westbound lane. At that time plaintiff was beneath the car forward of the left rear wheel. He was trying to get up, but the Bell driver was holding him down.

Richard Coleman, age 45, an assignment foreman for Bell, stated that he was working with William Bailey picking up disconnected telephones on Saturday, April 4, 1970. He was driving westbound on 103rd Street and, as he reached the east edge of Wallace traveling at about 25 miles per hour, he observed plaintiff on the southwest corner about 30 feet west of Wallace. Plaintiff was alone on the sidewalk about a foot or two from the curb and was running east along the right side of a car illegally parked in the bus stop. When he reached the front of the parked car, he turned sharply and ran into the street. Coleman was about in the middle of Wallace when plaintiff left the curb, and he immediately applied the brakes. Plaintiff ran into the eastbound lane a foot or two in front of Mrs. Knasiak’s car, which was traveling about the same speed as Coleman’s. The middle of the front''bumper struck the boy’s left leg. It appeared to him that plaintiff turned to look at Mrs. Knasiak’s car just as the impact knocked him physically out of his shoes into the air, and his head then struck the hood of the Knasiak vehicle. When plaintiff was struck, Coleman was braking his car at the west edge of Wallace and turning slightly to the right. Plaintiff was thrown in a northeasterly direction. Coleman lost sight of him as he landed near the side of the left front fender of the Bell vehicle which traveled not more than two to four feet further, coming to a stop facing northwest. Coleman did not see, hear or feel anything to indicate contact with plaintiff’s body. He stated that his car did not strike the boy.

Coleman was the first person to reach plaintiff, and he observed that his legs were pointing north but were not beneath the car. He attempted to hold plaintiff by the shoulders to keep him from moving. In his attempt to rise before Coleman reached him, plaintiff was thrashing around and had moved in a generally easterly direction toward the rear of tire car. Coleman told Bailey to call an ambulance and asked someone in the crowd that gathered to get plaintiff’s mother. Mrs. Knasiak came over to the site but then returned to her car. Coleman stayed with the boy until the ambulance arrived, and no one at the scene accused him of having struck plaintiff.

When plaintiff and his mother left in the ambulance, Coleman looked around for Mrs. Knasiak but did not see her. Both lanes of travel were blocked and eastbound traffic was backed up. No police were present and, assuming that they were not involved and since they could easily be located because of their plainly marked car, Coleman and Bailey went back to work.

William Bailey, age 23, not employed by Bell at the time of the trial, was a front seat passenger in Colemans car. He was checking the routing slips for their afternoon stops. As they approached Wallace, he observed three or four children playing on the southwest corner of the intersection in front of a building, and he observed that eastbound traffic was approaching. He did not see the Knasiak car strike plaintiff, since he was looking down at his routing slips, but he heard tires screeching and when he looked up he saw plaintiff flying through the air across the street. The Bell car was just entering the Wallace intersection and was traveling at about 5 or 10 miles per hour. Coleman quickly applied his brakes and their car stopped just west of the west curb of the intersection. Bailey lost sight of the boy as he landed near the front left side of the Bell car at a point between the door and the front fender. He did not see, hear, or feel anything to indicate that plaintiff came into contact with the Bell car.

After he got out of the car and went around to the driver’s side, Bailey observed plaintiff lying beside the car ahead of the left rear wheel. No part of his body was beneath the car. Coleman was already administering first aid and was moving the conscious boy to the back of the car to get him out of traffic. At Coleman’s request, Bailey called an ambulance. After the ambulance left with plaintiff and his mother, the crowd dispersed and, since there were no police at the scene, he and. Coleman went back to work. No one at the scene had accused them of hitting plaintiff or asked for their names and addresses. Bailey did not check the Bell car for damage, because it had not struck the boy.

Plaintiff injured his forehead and left leg. The forehead injury was a laceration which was sutured at the hospital. The left leg injuries were a fractured left femur and a tom femoral artery. His right leg was not injured.

After leaving the scene, Coleman and Bailey completed their day’s work. They then returned to the company garage where Coleman parked the car and mentioned to the wire chief on duty that he had witnessed an accident but filled out no report. He was unaware of any company policy which required employees to fill out any report forms when they witnessed accidents.

That evening, Coleman received a call from the duty foreman, who told him that the police had called seeking the identity of the Bell employee who had been at the accident scene. Coleman was given the number of a police sergeant to call. He called the police sergeant, went to the company garage, and then drove the car to the downtown Bell building where he picked up Jerome Engram of the Bell Security Department. They went to the police station where two policemen examined the car with a spotlight in the presence of Coleman and Engram. There were no dents or scratches or marks of any kind on the car and, to Coleman s knowledge, the officers found no red mark on the tread of the left front tire. However, Engram later testified that the police found a red mark on the tread of the left front tire. This mark, however, was never identified as blood, and the car was not impounded.

Opinion

I.

Defendants first contend that plaintiff failed to prove that any injury to him was proximately caused by Bell or Coleman.

Every tort action grounded in negligence requires the showing of (1) a duty owed by defendant to plaintiff; (2) a breach of that duty, i.e., a negligent act or omission; and (3) a resulting compensable injury which proximately results from the breach. Lasko v. Meier, 394 Ill. 71, 67 N.E.2d 162; Fugate v. Sears, Roebuck & Co., 12 Ill.App.3d 656, 299 N.E.2d 108.

Here, defendants Bell and Coleman challenge the sufficiency of the proof of proximate causation. They refer us to the comment on subsection 1 of section 433B of Restatement (Second) Law of Torts (1965), at page 442, stating as follows:

“Subsection (1) states the general rule as to the burden of proof on the issue of causation. As on other issues in civil cases, the plaintiff is required to produce evidence that the conduct of the defendant has been a substantial factor in bringing about the harm he has suffered, and to sustain his burden of proof by a preponderance of the evidence. This means that he must make it appear that it is more likely than not that the conduct of the defendant was a substantial factor in bringing about the harm. A mere possibility of such causation is not enough; and when the matter remains one of pure speculation and conjecture, or the probabilities are at best evenly balanced, it becomes the duty of the court to direct a verdict for the defendant.”

Under this reasoning, they argue, the evidence here was insufficient to create a prima facie case of any negligence on their part which proximately contributed to cause plaintiffs injuries.

The trial court here relied on Osinski v. Benson, 323 Ill.App. 562, 56 N.E.2d 665, in denying the motion for a directed verdict. In Osinski, plaintiff, a bicycle rider, recovered damages from the drivers of two cars who combined to cause his injury. The evidence indicated that the right front side of the first car hit plaintiff from the rear, spinning him around and knocking him down into the path of a second car. Although the evidence indicated that the more grievous injury was caused by the second vehicle (and the jury’s award reflected this in apportioning damages), yet both drivers were held on appeal to be jointly and severally liable for the total damages. This was predicated on a rule cited in Osinski, at page 570, that “* * * where the negligence of two or more persons, even though acting independently of each other, united in causing an injury, they are joint tortfeasors, and are jointly and severally hable for the resulting damages.”

In its reliance on Osinski, the trial court apparently was of the opinion that the evidence as to contact between the Bell vehicle and plaintiff was sufficient to create a jury question on the issue of negligence. Concerning the question of contact, we note that James Champion stated that he saw the front part of the Bell car hit plaintiff. Jerry Champion stated that he saw the Bell vehicle hit plaintiff, although he did not know what part of fire car hit him nor what part of his body was struck. Finally, Michael McAlister stated that he saw the left front tire run over plaintiff’s leg. This evidence, when considered with the testimony of plaintiff’s brothers and McAlister indicating the existence of an adequate interval of time between the contacts so that the second might have been avoided, was sufficient to allow the case to go to the jury.

II.

Defendants Bell and Coleman also cite numerous alleged errors which they contend prejudiced their right to a fair trial. While the object of review is not to determine whether the record is completely free of error; nevertheless, a case will be reviewed to ascertain whether upon the trial there has been such error or accumulation of errors as might prejudice the rights of a party. Adamaitis v. Hesser, 56 Ill.App.2d 349, 206 N.E.2d 311; Bulleri v. Chicago Transit Authority, 41 Ill.App.2d 95, 190 N.E.2d 476.

From our review of the entire record, we are of the opinion that errors were committed in the course of the trial which in their totality denied defendants Bell and Coleman their right to a fair trial.

Initially, we believe it was error to allow the extended inquiry by plaintiff into the post-accident events relative to the police contacting Coleman concerning the accident. In a pretrial motion in limine it was ordered that:

“[A] 11 parties and their counsel are instructed not to mention, refer to, interrogate concerning, or attempt to convey to the jury in any manner, either directly or indirectly, that the defendant Richard Coleman received a traffic ticket or was charged with leaving the scene of an accident, without first obtaining the permission of this court outside the presence and hearing of the jury.”

Yet, during trial, plaintiff’s counsel asked Coleman:

“Q. Did the police finally get in touch with you?
A. Yes — well not exactly. I got in touch with them.
Q. You contacted the police?
A. Yes. ,
Q. Isn’t it true that the police came to your foreman and said that they had a report that a Bell Telephone vehicle was involved in a hit and run and it had hit a child and ran from the scene, isn’t that true?”

Although this last question could be excused in light of the prior line of questioning and the attendant responses, we feel the whole inquiry was erroneous — first, because it appears to have violated the in limine order in.spirit, if not in fact, and second, because the evidence of the police contact with Coleman was irrelevant to the issues in this case.

Coleman and Bell also argue that it was improper to admit testimony concerning the post-accident investigation in which a “red mark” was discovered on the left front tire of the Bell vehicle. Plaintiff introduced this testimony to prove that the Bell car actually ran over his leg.

“A fact cannot be established by circumstantial evidence unless the circumstances are of a nature and so related to each other that it is the only conclusion that can be drawn therefrom, and mere conjecture, guess or suspicion is insufficient.” (Coulson v. Discerns, 329 Ill.App. 28, 32, 66 N.E.2d 728, 730.) This “red mark” was never identified as blood nor was it connected with the accident. Using this “red mark” to show contact between the Bell car and plaintiffs leg would therefore be based solely on conjecture and guess. Furthermore, testimony based on an inspection after the event is not competent unless evidence is also introduced to show that the conditions inspected (i.e., the tire and the “red mark”) existed and remained unchanged between the event and the inspection. (La Salle National Bank v. Feldman, 78 Ill.App.2d 363, 372, 223 N.E.2d 180, 185.) No such showing of unchanged conditions was made. Therefore, admission of the testimony concerning the “red mark,” as adduced, was improper.

Secondly, we believe it was improper to compel Coleman to comment on the statements of other witnesses. While it is true that statements of others may be shown a witness to refresh that witness’s recollection, they may not be used to impeach that witness. The rule as stated in People v. Kramer, 315 Ill. 485, 508, 146 N.E. 593, 602, and cited with approval in Adamaitis v. Hesser, supra, is that:

“[A] witness can testify only to such facts as are within his knowledge and recollection, but he is permitted to refresh and assist his memory by the use of a written instrument, memorandum or entry in a book, and it is not necessary that the writing should have been made by the witness himself or that it should have been an original writing, provided that after inspecting the record he can speak to the facts from his own recollection.”

Here, over objection, counsel for plaintiff was permitted to cross-examine Richard Coleman about a statement made by William Bailey. Coleman was placed in a bad light by being required to comment on the alleged inconsistencies between his testimony and Bailey’s statement. He seemingly was being contradicted by his own fellow employee and appeared hard-pressed to produce spontaneous explanations. Such a tactic places the witness in the position of being the judge of the veracity of another witness — a matter exclusively within the province of the jury. (Ryan v. Monson, 33 Ill.App.2d 406, 179 N.E.2d 449; Teece v. Bieber, 323 Ill.App. 647, 56 N.E.2d 665.) Here, the use of the statements was not to refresh Coleman’s recollection but to impeach him. As such, it was error.

• 7 Thirdly, we think it was error to permit McAlister to state his conclusion on Coleman’s ability to avoid the accident and to permit counsel for plaintiff to comment on that conclusion. During cross-examination of McAlister, an attempt was made to impeach him by pointing out the difficulty he would have in viewing the left front tire of the Bell vehicle make contact with plaintiff, because McAlister testified that he was near the northwest comer at the time the westbound car passed him. The car, according to McAlister, was traveling at 30 m.p.h. and struck plaintiff some two to three car lengths west of the intersection. McAlister stated he ran out into the intersection after the Bell vehicle passed and was thus able to view the left side of the Bell vehicle. Thus, on cross-examination, the following colloquy occurred.

“Q. What did she [Mrs. Knasiak] do?
A. I couldn’t tell you what she did because as soon as she hit the car [sic], then the Bell Telephone car went off.
Q. Right close together?
A. Yes, right, very little time elapsed.
Q. In fact you didn’t have time to do anything?
A. Yes, it could have been avoided. The second accident could have been avoided.
Mr. Butts: I move that the witness’ comments be stricken as not responsive.
Mr. Postilion: I resist the motion.
Mr. Butts: They are not responsive to my question.
Mr. Postilion: I will resist the motion. They are totally responsive.
The Court: I will let it stand.”

On redirect examination of McAlister, the following exchange occurred:

“Q. Mr. McAlister, the lawyer just asked you something, and your answer was that the Illinois Bell car could have avoided this accident?
A. Yes.
Q. How?
Mr. Butts: Objection, your Honor, That calls for a conclusion. That is for the Jury’s decision.
Mr. Postilion: The door was opened.
The Court: Overruled.
Mr. Postilion: Q. How could the Illinois Bell have avoided this accident?
A. By the time the Pontiac — I felt as a driver he should have noticed that, you know, if something is going on and before. I think he could have avoided it if he could have just turned, you know.”

Finally, during rebuttal final argument, counsel stated:

“Counsel told us that Michael McAlister is inconsistent on the issue of Coleman. Counsel for Illinois Bell brought out from Michael McAlister the testimony that the accident could have been avoided by the Illinois Bell car.
Mr. Butts: Objection.
The Court: Overruled.”

The witness’s answer that the alleged second accident could have been avoided by proper lookout or turning the car did not respond to the question asked, and the court erred in refusing to strike the answer. Tyler v. Tyler, 401 Ill. 435, 82 N.E.2d 346; Math v. Chicago City Ry. Co., 243 Ill. 114, 90 N.E. 235.

In addition to being unresponsive, McAlister’s comment was incompetent since it improperly stated his conclusion on a crucial ultimate fact. Loftus v. Chicago Rys. Co., 293 Ill. 475, 127, N.E. 654; Brink’s Chicago City Express Co. v. Kinnare, 168 Ill. 643, 48 N.E. 446; Ballard v. Jones, 21 Ill.App.3d 496, 316 N.E.2d 281.

Finally, it appears to us that error occurred in plaintiff’s rebuttal final argument. There, it was stated:

“You can break the femur by slipping and falling. You can break the bone after you hit the ground. You can be hit by some object like a car from the side. It would be rather unusual if you were to break a bone from behind, front to back. It is rather unusual. That is why we were surprised they used a plate and screw. We find now what is unusual, That the artery that rides behind tire bone is severed at that site and that the leg has taken a front to back trauma, a front to back blow.”

At trial, the only evidence in this regard was the testimony of Dr. Gleason that the femoral artery “runs on the inner aspect of this hip, and then gradually passes, medially and posteriorly, to the femur.” The doctor was never asked if the severing of the artery could only be caused by a front-to-back blow. Although in closing argument counsel may properly draw inferences from the evidence, he may not create his own evidence. Vujovich v. Chicago Transit Authority, 6 Ill.App.2d 115, 126 N.E.2d 731; Wellner v. New York Life Ins. Co., 331 Ill.App. 360, 73 N.E.2d 156.

Here, the suggestion that the break could only be caused in a front-to-back blow was highly prejudicial. It had the effect of scientifically rebutting defendants’ theory that the injury was caused by the impact of the first car striking plaintiff and supported plaintiff’s theory that the injury occurred as the Bell car passed over plaintiff’s leg while he lay in the street on his back, i.e., an impact to the front of the leg. Such a statement of fact by counsel, unsupported by the record, is improper. (Jackson v. National Dairy Products Corp., 32 Ill.App.2d 37, 176 N.E.2d 551; Vujovich v. Chicago Transit Authority, supra.) Here, we believe it was prejudicial, since it supplied the medical corroboration'of plaintiff’s theory. Without that statement, it would have been difficult for the jury to comprehend how the left femur could be injured by the Bell car without any injury to the right leg. The evidence indicated plaintiff was lying with his legs to the north and his head to the south. The westbound Bell vehicle would have had to pass over the right leg to strike the left femur midway between the knee and hip. It is true that the evidence is somewhat conflicting as to whether the boy was lying still or “thrashing about” after the first impact. Perhaps this “thrashing about” placed him in such a position that it was possible for the Bell vehicle to strike Melvin that high on the left leg without making any contact with the right leg. However, such a theory is controverted to the extent that the only direct evidence as to the position of plaintiff after the first impact was that his legs were to the north and his head to the south. In this context, the medical corroboration supplied by counsel was unsupported by the record.

Although we have found here that there was a question of fact for the jury’s consideration as to whether the conduct of Bell and Coleman was a proximate cause of plaintiff’s injuries, we are also of the belief it was a close question the jury might have determined either way and, as a consequence, it was important that the jury not be influenced by any conduct so prejudicial as to deprive either party of a fair trial. As stated in Jacobson v. National Dairy Products Corp., 32 Ill.App.2d 37, 43, 176 N.E.2d 551, 554:

“Where the liability is sufficiently close so that the jury might reasonably have returned a verdict for either party, the trial must be conducted in an orderly manner so that the jury will not be improperly influenced.”

See also Bulleri v. Chicago Transit Authority, supra.

From our review of the entire record, we are of the opinion that the accumulation of errors, as set forth herein, prejudiced the rights of defendants Coleman and Bell so that they are entitled to a new trial. Jacobson v. National Dairy Products Coup., supra-, Bulleri v. Chicago Transit Authority, supra.

III.

Since this matter must be remanded for a new trial, it is necessary that we consider the contention of defendants with regard to the failure of the trial court to conduct hearings as to the competency of the minor witnesses.

The record discloses that 6 months prior to trial, a hearing was held by a motion judge in the trial court to determine the competency of James and Jerry Champion, ages 13 and 15 respectively, to give discovery depositions. They were both held to be competent, and they were the same ages at the time of trial when the court denied requests for hearings as to their competency.

In this State, every person who is 14 years old or older is presumed competent to testify. (People v. Karpovich, 288 Ill. 268, 123 N.E. 324.) Competency is determined as of the time the witness is offered at the triaL (Knob v. Aldens Irving Park, Inc., 49 Ill.App.2d 371, 199 N.E.2d 815.) When a child under the age of 14 is called as a witness, the court should first determine the child’s competency as a witness. (People v. Crews, 38 Ill.2d 331, 231 N.E.2d 451; People v. Johnson, 298 Ill. 52, 131 N.E. 149.) To do this, the judge should hold a preliminary inquiry into competency by examining the child’s intelligence, understanding and moral sense. (People v. Davis, 10 Ill.2d 430, 140 N.E.2d 675; People v. Crowe, 390 Ill. 294, 61 N.E.2d 348.) If the child is mature enough to have correct impressions from his senses and to recall and narrate them in a reasonably intelligent manner and appears to appreciate the moral duty to tell the truth, the child is competent to testify. People v. Ballinger, 36 Ill.2d 620, 225 N.E.2d 10.

Here, the minor witnesses were 13 and 15 years of age at the time of trial in November, 1973, from which it appears that both will be 14 years or older before this case is retried, so that they will be presumed competent. However, if it should develop that one may be under the age of 14 years, the better practice would be for the court to make a preliminary interrogation to determine competency to testify. People v. Dilworth, 67 Ill.App.2d 384, 214 N.E.2d 9.

The judgment is reversed and remanded for a new trial.

Reversed and remanded.

DRUCKER and LORENZ, JJ., concur.


source: Caselaw Access Project

author: Mr. PRESIDING JUSTICE SULLIVAN

license: Public Domain

text:
    William R. Tobey, Jr., Plaintiff-Appellee, Cross-Appellant, v. Walter R. Sundling et al., Defendants-Appellants, Cross-Appellees.
    (No. 59987;
    First District (5th Division)
    December 13, 1974.

      William T. Hart and Allan Horwich, both of Schiff, Hardin & Waite, of Chicago, for appellants.
    A. Denison Weaver, of Chicago, for appellee.
   Mr. PRESIDING JUSTICE SULLIVAN

delivered the opinion of the court;

Plaintiff brought a suit in equity to rescind stock sales and to recover the original purchase price plus interest and attorney’s fees pursuant to the Illinois Securities Lav/ of 1953 (the Act) (Ill. Rev. Stat. 1973, ch. 121½, par. 137.1 et seq.), which makes certain sales of securities voidable at the option of the purchaser and creates a right of rescission. (Ill. Rev. Stat. 1973, ch. 121½, par. 137.13). An order was entered substituting Sundling, Pelikan and Carr, not individually but as co-trustees of NX Corporation (formerly Nuveen Corporation) as party defendants in lieu of NX Corporation. (Hereafter, the co-trustees will be called defendants, and NX Corporation and Nuveen Corporation will be treated as one and termed Nuveen.) Judgment was entered in favor of plaintiff for the original purchase price in the amount of $34,303.80, but recovery of interest and reasonable attorney’s fees was denied. Defendants appeal from that portion of the decree refunding to plaintiff his purchase price, and plaintiff cross-appeals from that portion of the decree denying him recovery of interest and attorney’s fees.

Numerous issues are presented for review. However, we need decide only the first, i.e., whether plaintiff is precluded from obtaining relief under the Act because before attempting to rescind, he sold the securities on which the rescission action was based and thus could not tender the securities to Nuveen. The facts are essentially as follows:

Plaintiff was hired by the Equities Department of Nuveen, an investment banking firm, on August 4, 1968. He was a college graduate and, although he had extensive experience in the securities business relative to sales, he had no experience with the “paperwork” connected with completing a transaction nor had he ever been employed in the “bank office” or the “Compliance Department,” which handled the necessary filings with the State regulatory bodies. Nonetheless, as a condition of his employment, plaintiff became qualified as a registered salesman under the Act and executed an affidavit which stated that “he has read the Illinois Securities Law of 1953 [and] that he is familiar with the requirements thereof * *

Shortly after commencing his employment, plaintiff purchased 500 shares of nonvoting common stock of Nuveen, which at that time was a member corporation of the New York Stock Exchange. The rules of the Exchange required member corporations to restrict their stock ownership to certain permitted holders; namely, those persons legally qualified to engage in securities transactions on behalf of the member corporation. Authorization for plaintiff’s purchase had been given by Nuveen’s board of directors prior to the date of his actual employment, to become effective on his employment, and he paid $21,117 for 500 shares of the Nuveen nonvoting common stock for approximately $42 per share. Subsequently, on January 31, 1969, plaintiff purchased an additional 300 shares of Nuveen nonvoting common stock for $13,186.80 or approximately $44 per share. The purchase prices were based upon book values, and no commissions were paid in connection with the sales.

These two sales to plaintiff were not registered under the Act nor were they accompanied or preceded by a prospectus, both of which are required in connection with the sale by an issuer of registered securities under section 12(B) and (D) of the Act. No report of sale was filed with respect to the first transaction as is required in order to perfect an exemption to the application of the provisions of the Act under section 4(G) as a sale to 15 or fewer persons within a 12-month period. However, it was alleged in Nuveen’s answer and testified to by Walter Sundling, an officer of Nuveen, that the failure to file the 4(G) report of sale was due to inadvertence. This was not denied in plaintiff’s reply or contested at the trial.

During the summer of 1969, Nuveen experienced financial reversals which, required it to withdraw from the securities business and to enter into a plan of liquidation for the benefit of its creditors and security holders. The name of the corporation was changed to NX Corporation. Its equity department was closed down, and plaintiff’s services were terminated on August 15, 1969. On that date plaintiff tendered his stock certificates pursuant to a provision in Nuveen’s articles of incorporation which reserved to it a right of first refusal to purchase the stock of any security holder upon termination of his employment. From the dates of his purchases, plaintiff’s stock certificates remained in the possession of Nuveen. On September 17, 1969, plaintiff and other stockholders were informed by letter of plans for liquidation and the sale of assets. In this letter, plaintiff learned for the first time that the Nuveen bylaws had been amended on July 12, 1969, to allow terminated employees to remain as permitted holders of the stock of the corporation, and that redemption of such employee’s stock would not be made ‘otherwise than in connection with the dissolution of the corporation.” It was also stated in this letter that “[t]his procedure was considered necessaiy out of fairness to all stockholders * * * to treat all stockholders as equally as possible.”

On October 31, 1969, plaintiff requested the return of his 800 shares, the certificates for which were returned to him on November 5, 1969. Thereafter, in December of 1969, plaintiff contacted Robert Kelling, a lawyer who was employed at John Nuveen & Co., formerly a subsidiary of Nuveen, and on December 31, 1969, he sold his 800 shares of Nuveen nonvoting common stock to Kelling for $1 per share. Testimony indicated that plaintiff sold his stock to Kelling to take a tax loss. In fact, on his tax return plaintiff, on the advice of his accountant, declared the loss as a business rather than as a capital loss, thus deducting the loss against ordinary income. Plaintiff justified this on the ground that he was initially informed he was required to buy stock before he could become a voting officer of Nuveen, and it was for that reason he purchased the stock in question. It should be noted, however, that the shares purchased were nonvoting common stock. At any rate, plaintiff delivered to Kelling the stock certificates representing his 800 shares, with an executed stock power.

Plaintiff testified that he first learned that 4(G) reports of sales of stock to him had not been filed by Nuveen when he was so informed by a former employee of Nuveen in June of 1970, some six months after the sale of his stock to Kelling. Thereupon, he attempted to repurchase the stock from Kelling. However, by that time Kelling had registered the stock in his own name and, in exchange, had received a certificate of participation in the liquidation of Nuveen and had already received liquidating dividends of $4.70 per share ($3,760).

Specifically, plaintiff testified that on June 9, 1970, on the advice of his attorney, he telephoned Kelling, who was still employed as a vice president of John Nuveen & Co., and offered to repurchase the shares. During that telephone conversation, after some discussion as to price, plaintiff stated that a figure of $2 per share was agreed upon. In a subsequent conversation on the same day, plaintiff said Kelling agreed to resell the shares to him and also told him to call Walter Sundling, the Nuveen officer who had physical possession of the certificates.

Plaintiff testified that on that same day he called Sundling in order to make the arrangements to obtain possession of the certificates and that Sundling inquired as to the reason plaintiff wanted to reacquire the shares. Plaintiff was then informed by Sundling that he would have to contact Nuveen s counsel in New York and, after doing so, he would “get back” to plaintiff.

On the afternoon of June 9, 1970, plaintiff again called Kelling from the office of his attorney, and the latter explained to Kelling the exact purposes for which plaintiff wanted to reacquire the stock — that he was contemplating bringing an action against defendant. There was also testimony from Don Reid, a former co-employee of the plaintiff, that Kelling had informed Reid in a telephone conversation on the evening of June 9, 1970, that he had reached a decision to sell the stock to plaintiff. Nonetheless, the following morning, according to plaintiff, Kelling called and advised plaintiff that he had changed his mind as he thought it was unfair for plaintiff to bring an action against defendant.

On the afternoon of June 10, 1970, Kelling allegedly again called plaintiff and apologized for his tone of voice in the conversation that morning and further informed plaintiff that it would be to Kelling’s disadvantage with respect to his present employment position to proceed with the sale. Plaintiff also testified that Kelling said he had independently reached a decision not to go ahead with the sale.

It was the testimony of Kelling that he never agreed to sell the stock back to the plaintiff.

Opinion

Before a vendee may rescind his purchase of stock sold in violation of the Blue Sky Law and recover his purchase price, he must tender the stock back to the vendor. As stated in Glen v. Dodson, 347 Ill. 473, 479, 180 N.E. 393, 395:

“It is well settled by the decisions of this court that before a party to a voidable sale will be permitted to rescind the contract and recover from the other party the money or property which he has parted with under the contract the consideration received must be returned or tendered to the other party in toto.”

See also Morrison v. Farmers Elevator Co., 319 Ill. 372, 150 N.E. 330, and Hammer v. Sanders, 8 Ill.2d 414, 134 N.E.2d 509.

Plaintiff here concedes that tender is generally a prerequisite to any action for rescission but counters that (1) tender was made; or (2) Nuveen is estopped to raise failure of tender as a defense. We feel that neither response under the facts of this case is viable and that the decision must be reversed for failure of proper tender.

I.

The fundamental purpose of a tender requirement in rescission actions generally, and under the Act particularly, is to establish that plaintiff, as the owner of shares, can comply with an essential condition in any decree of rescission; namely, that he return the shares in exchange for his original consideration. Since damages are not available as a remedy under the Act, plaintiff must stand ready at all times to return the securities. Thus, in Glen v. Dodson, supra, at page 479, the court held that:

“The inability of the party to restore the consideration will not relieve him from' the necessity of doing so, and it is not sufficient to offer to set off that amount against what is claimed from the other party.”

Likewise, in Weisbrod v. Lowitz, 282 Ill.App. 252, the plaintiff had pledged his securities and thus was unable to tender them into court. The court said, at page 258:

“A number of cases are cited excusing a tender on the ground that it is shown that the tender would not be accepted * * *. We are of the opinion that a different rule obtains where the penal provisions of a statute are sought to be enforced. It should be noted that tender may be made in open court, which would be pointless if a tender could be excused by a previous refusal. If the defendants were liable they were entitled to receive back the stock sold, and the tender is not a matter of performance by them but of restitution to them.”

The rule applied in the foregoing cases has been referred to as the duty of a rescinding purchaser to keep his tender open or good. In 5 Corbin Contracts § 1116 (1964), the author states at page 627:

“[I]t would seem that the tender must be “kept good’ down to the time of judgment, for otherwise the plaintiff might keep the property. The reconveyance would still be required as a condition of restitution of the full price paid.” (Footnote omitted.)

To the same effect, see 32 I.L.P. Sales § 67 (1957), where the following appears at page 389:

"To be entitled to rescind the contract of sale the buyer must first comply with conditions precedent, such as by returning or offering to return the goods to the seller * * *. Where the buyer puts it out of his power to return the goods he thereby also puts it out of his power to rescind the contract.” (Footnotes omitted.)

Here, plaintiff made a tender of his stock to Nuveen by a letter dated August 15, 1969. However, this tender was in connection with the termination of his employment and the practice of the corporation, prior to its change of bylaws on July 12, 1969, to purchase the stock of all persons leaving its employ. Plaintiff’s letter of tender at that time referred explicitly to the articles-of-incorporation provision relating to the corporation’s right of first refusal to purchase. It did not refer to a purported claim of rescission under the Act. In fact, plaintiff was not aware of a possible right to rescind until he first learned, in June, 1970, of Nuveen’s failure to file 4(G) reports. Moreover, on October 31, 1969, plaintiff requested that Nuveen return his stock to him, which it promptly did, and plaintiff then sold the shares to Felling on December 31, 1969. The explicit notice to Nuveen of election to rescind the sales of stock was first given on June 10, 1970.

In view of the foregoing, we feel that the original tender of August 16,1969, was not a proper tender under the Act but was merely the tender required by the corporate articles. Furthermore, the sale of the stock to Felling on December 31,1969, precluded plaintiff from keeping his tender open or good. Plaintiff’s recovery was thus barred absent some conduct on the part of the corporation which would excuse the necessity of tender.

II.

This conclusion brings us to the alternative contention of plaintiff, that if the tender made pursuant to the articles of incorporation permitting a right of first refusal in the corporation was not a sufficient tender to rescind under the Act, then tender was excused by Nuveen s conduct.

The doctrine of Equitable Estoppel is defined in Dill v. Widman, 413 Ill. 448, 455-56, 109 N.E.2d 765, 769, as follows':

“The general rule is that where a party by his statements or conduct leads another to do something he would not have done but for the statements or conduct of the other, the one guilty of the expressions or conduct will not be allowed to deny his utterances or acts to the loss or damage of the other party. The party claiming the estoppel must have relied upon the acts or representations of the other and have had no knowledge or convenient means of knowing the true facts. Fraud is a necessary element but it is not essential that there be a fraudulent intent. It is sufficient if a fraudulent effect would follow upon allowing a party to set up a claim inconsistent with his former declarations.”

Further, it is stated in 18 I.L.P. Estoppel § 23 (1956), at pages 85-86:

“It is an essential element of estoppel that the party against whom the estoppel is asserted must have by his acts or representations induced the party claiming the estoppel to rely on his acts or representations.' Conversely, it may be said that one who is not misled by another’s conduct cannot claim estoppel.” (Footnote omitted.)

Thus, it is necessary to determine whether any statement or conduct by Nuveen upon which plaintiff relied either (1) induced the sale of Kelling; or (2) precluded the repurchase from Kelling.

As to the first point, plaintiff contends, in effect, that estoppel arises from the failure of Nuveen to inform plaintiff of its noncompliance with the filing provisions of the Act, i.e., that defendant had knowledge or was charged with knowledge of its failure to file the 4(G) report of the first sale and thus was charged with notice of the voidability of the sale but failed to disclose this fact to plaintiff.

The rule regarding requisite knowledge before one may be deemed estopped appears in 18 I.L.P. Estoppel § 23 (1956), at page 84:

“Knowledge of the facts is essential to an estoppel in pais, and a person, to be estopped, must have had full knowledge of the real facts at the time of his representation, concealment, or other conduct relating thereto and alleged to constitute the basis of the estoppel.
Although under this rule equitable estoppel cannot be successfully asserted against a person who is ignorant of the facts and the true state of affairs, one whose ignorance or mistake was the result of gross or culpable negligence in failing to learn the facts will be estopped as if he had full knowledge of the facts.” (Footnotes omitted.)

Here, it was asserted by Nuveen and admitted by plaintiff that the original failure to file the 4(G) report required by the Act was “inadvertent.” There is no evidence of Nuveens actual knowledge of its failure to file the report at the time of plaintiffs sale to Kelling. We do not feel such inadvertent failure constitutes such “gross or culpable negligence” as to require that defendant be charged with knowledge of its failure to file the 4(G) statement.

Furthermore, we feel that estoppel envisions some representation or active conduct by the party to be estopped, which induces reliance on that representation or active conduct to the other party’s detriment. Here, where there is mere inaction and plaintiff had equal opportunity to check with the Secretary of State to determine whether the 4(G) report had been filed, we fail to see how such inadvertence can give rise to an estoppel.

As to the second point, plaintiff argues that estoppel results from Nuveens conduct which allegedly interfered with and prevented the repurchase of the stock from Kelling. Initially, it is necessary to determine whether plaintiff could regain all his prior rights had he been able to repurchase the stock from Kelling and thus tender the shares back to the Corporation.

Section 137.13 of the Act (Ill. Rev. Stat. 1969, ch. 121½, par. 137.13) permits rescission upon “tender to the seller or into court of the securities sold * * *.” This provision has been construed to require that “before a party to a voidable sale will be permitted to rescind 8 8 8 the consideration received must be returned or tendered to the other party in tofo.” (Glen v. Dodson, 347 Ill. 473, 479, 180 N.E. 393, 395.) It has been stated that a sale of the subject securities which renders impossible compliance with the statutory prerequisite of tender precludes relief. (Rotstein v. Reynolds & Co. (N.D. Ill. 1973), 359 F.Supp. 109.) In a comment on Glen v. Dodson, supra, it has been stated that “the victim of a securities fraud who resells, however innocently and harmlessly, a single security that he purchased, thereby forfeits his right to obtain justice.” (Elden, Litigation Under Illinois’ Securities Lato, 60 Ill. B.J. 28, 36 (1971) ) As appears above in this opinion, in the reference to 5 Corbin Contracts § 1116, at 627 (1964), the rule has been characterized as the duty of a rescinding purchaser to “keep his tender open or good.”

We believe that the problem involved here, however, is unique in that plaintiff’s action is based on a statute, and he sought to buy back for purposes of tender the same stock sold to him. Thus, we feel the cases relied on by Nuveen (Glen v. Dodson, supra, which involves a partial tender, and Rotstein v. Reynolds and Co., supra, involving the absence of tender) are not in point.

Defendant also cites Weisbrod v. Lowitz, 282 Ill.App. 252, where, at page 259, the court said as follows:

“[Ajfter plaintiff had elected to rescind the purchase and after defendants had denied any liability * * * he continued to exercise, for his own profit, all the incidents of ownership by selling it and keeping the proceeds. He thus waived any attempted rescission.”

In the instant case, however, there was no knowledge by plaintiff of Nuveen’s failure to file the 4(G) statement at the time of the sale to Kelling, and thus there was no waiver. Furthermore, in Weisbrod, plaintiff sold his original shares on the New York Stock Exchange and then, for purposes of a tender, bought back an equivalent number of shares. There was no indication that these repurchased shares were the same shares originally sold. As stated in Weisbrod, at page 259:

“Plaintiff’s right to recover is purely statutory, hence all the conditions upon which that right is based must be complied with before a recovery can be had. The statute contemplates that tender must be made of the stock sold unless this is excused by the action of the other party which led to an exchange.” (Emphasis added.)

We are of the opinion, therefore, that plaintiff could have regained all his prior rights had he been able to repurchase the stock from Kelling and thus make tender “of the securities sold” him by Nuveen. The issue then concerns whether Nuveen’s conduct influenced Kelling’s refusal to resell to plaintiff. In this regard, it appears that at the time of the attempted repurchase, Nuveen knew that it had failed to file the 4(G) statements relative to its original sale to plaintiff and was aware of plaintiff’s desire to rescind that sale. However, Kelling testified that no one connected with Nuveen Corporation or John Nuveen & Company directed or influenced his refusal to resell to plaintiff. He testified that the decision not to resell was entirely his own, and that he was not going to make it easy for plaintiff to sue because there were similarly situated persons with Nuveen, i.e., other shareholders who were his friends who not only had taken a loss on the collapse of Nuveen but would take a further loss if plaintiff recovered his original purchase price. Kelling also' denied ever agreeing to sell to plaintiff, and he appears to be corroborated by the $2 per share priee plaintiff says was agreed upon, inasmuch at it was known at that the liquidation redemption would render substantially morg than that amount, and did in fact return $4.07 per share. Also, Walter Sundling, the officer of Nuveen who was the keeper of records, testified he had no recollection of any conversation with plaintiff.

Furthermore, the fact that Reid, an unsuccessful plaintiff against the trustees, was permitted to testify that Kelling told him he would resell to plaintiff does not carry a reasonable inference of improper influence on the part of the corporation. The record does not disclose any evidence of any conduct on the part of any official of the corporation which could be construed as pressure on or interference with Kelling’s decision not to resell to plaintiff. In fact, plaintiff on cross-examination stated that Kelling told him that “he had independently reached a decision not to tell the stock.”

Finally, a telephone conversation from Frank Wendt, chief executive officer of John Nuveen & Co., to a partner of the firm employing plaintiff after he left Nuveen, advising the latter of plaintiff’s intent to use Nuveen, is not proof of any influence by it over Kelling. No request was made of the employer to do anything, and there is nothing to indicate any action was taken by the employer as a result of this conversation. Neither is it contended that it adversely affected plaintiff’s employment or prevented the filing of this suit. In any event, that conversation is not evidence of any pressure on the relevant Kelling-plaintiff resale discussions.

Thus, we conclude that Kelling’s decision not to resell appears independently and personally motivated and that there is no evidence of an estoppel relative to the stock repurchase negotiations. Therefore, Nuveen could properly interpose the defense of plaintiff’s failure to tender the stock sold and, the failure not being excused, the relief requested by plaintiff should have been denied.

For the above reasons, the judgment of the trial court is reversed and the cause remanded with directions to enter judgment for defendants.

Reversed and remanded with directions.

DRUCKER and LORENZ, JJ., concur.

       Formerly the Illinois Securities Act of 1919, now the Illinois Securities Law of 1953 — the Act involved here.


author: Mr. PRESIDING JUSTICE EGAN

text:
    Louis Leader, Plaintiff, v. Patrick J. Cullerton, Assessor, Cook County, et al., Defendants.—Chicago Title & Trust Company et al., Plaintiffs, v. Patrick J. Cullerton, Assessor, Cook County, et al., Defendants.—(Lowell J. Myers et al., Petitioners-Appellees and Cross-Appellants; Continental Illinois National Bank and Trust Company of Chicago et al., Objectors-Appellants and Cross-Appellees.)
    (No. 59309;
    First District (1st Division)
    December 16, 1974.

      Sherwood K. Platt, George V. Bobrinskoy, Jr., and Fern C. Bomchill, all of Chicago (Mayer, Brown & Platt, of counsel), for appellants, cross-appellees Continental Illinois National Bank & Trust Co. of Chicago, United Air Lines, Inc., Kelly Springfield Co., and Holiday Inns, Inc.
    Francis J. Mahon, of Chicago (McConnell, Mahon & Borst, of counsel), for appellant, cross-appellee Addressograph-Multigraph.
    D’Ancona, Pflaum, Wyatt & Riskind and Arvey, Hodes & Mantynband, both of Chicago (Abner J. Mikva, Merrill A. Freed, Morton Denlow, Sidney R. Zatz, and Herman Smith, of counsel), for appellees, cross-appellants D’Ancona, Pflaum, Wyatt & Riskind and Arvey, Hodes & Mantynband.
    Lowell Myers, pro se.

   Mr. PRESIDING JUSTICE EGAN

delivered the opinion of the court:

In 1969, the Illinois Legislature amended section 26 of the Revenue Act of 1939. (Ill. Rev. Stat. 1969, ch. 120, par. 507.) The amendment provided for a use tax upon the lessee of previously exempt property. Assessment notices totalling almost $17 million were issued by the assessor of Cook County. Thereafter, two separate class-action suits were filed in the circuit court attacking the amendment’s constitutionality. The first was Leader v. Cullerton, which was filed by attorney Lowell J. Myers on March 18, 1970. The second suit was Chicago Title & Trust Company v. Cullerton, which was filed by the firm of D’Ancona, Pfiaum, Wyatt & Riskind (hereafter the D’Ancona firm) and thereafter consolidated with the Leader case. Additional parties intervened, represented by the firm of Arvey, Hodes & Mantynband (hereafter the Arvey firm).

On June 28, 1971, Judge Daniel A. Covelli declared the amended taxing statute unconstitutional but allowed tire county taxing authorities to collect the taxes pursuant to the Act during the pending appeal of his order, provided that such taxes were segregated and retained in a special fund. He also held that the case was a proper class action and retained jurisdiction for the purpose of determining the distribution of tire special fund and reasonable attorneys’ fees. The county filed a notice of appeal to the supreme court on July 15, 1971.

On July 19, 1971, Lowell Myers mailed a copy of the decree to each taxpayer listed in the county tax book. He included a letter that, in part, suggested that each taxpayer should immediately contact its attorney. Subsequently, 70 separate taxpayers made payments totalling $4,785,-883.25 into tire special fund. Several of the companies endorsed their checks to tire county specifying that the payments were made subject to Judge Covelli’s decree. Among those paying were the objectors: Continental Illinois National Bank & Trust Company of Chicago, United Airlines, Inc., Kelly Springfield Company, and Holiday Inns, Inc., represented by one law firm (hereafter this group of objectors will be referred to as “Continental Bank”); Quinlan and Tyson, as agents, and Chandler’s, Inc., represented by another law firm; and Addressograph-Multigraph Corporation (hereafter Addressograph), represented by a third law firm. On August 27, 1971, the supreme court denied the county’s motion to modify the decree by eliminating the provisions which created the trust fund. The attorneys for the objectors did not actively participate in the appeal in any way, but a member of the firm representing Continental Bank was present at the hearing on the county’s motion to modify the decree.

On December 11, 1972, the supreme court rendered an opinion in these consolidated cases and another original action which had been filed in the supreme court, holding that the statute was unconstitutional and'that the case was a proper class action. (Dee-El Garage, Inc. v. Korzen, 53 Ill.2d 1, 289 N.E.2d 431.) On December 21, the attorneys representing the plaintiffs (hereafter the “petitioners”) filed a petition for fees seeking 25% of the amount of tire segregated funds. Objections and answers were filed and after a hearing the court fixed reasonable attorney’s fees at 15% of the special fund to be divided equally between the lawyers. The objectors have appealed from tibe award of 15% and the petitioners have cross-appealed from the order denying their claim for 25%. The other 63 taxpayers have not appealed and the order is final as to them.

The objectors contend that the petitioners are not entitled to any fees from their clients or, alternatively, that the award of 15% is grossly excessive. The objectors rely on three cases in support of their argument that the petitioners are not entitled to any fee: Hoffman v. Lehnhausen, 48 Ill.2d 323, 269 N.E.2d 465; Rosemont Building Supply, Inc. v. Illinois Highway Trust Authority, 51 Ill.2d 126, 281 N.E.2d 338; and Doran v. Cullerton, 51 Ill.2d 553, 283 N.E.2d 865. In Hoffman, the court declared a homestead exemption unconstitutional. In Rosemont, the Highway Trust Authority Act was declared unconstitutional because it created a State debt in excess of $250,000 without a referendum. The trial court sought to require the individual defendants in their capacity as elected State officials to pay the plaintiffs’ attorneys’ fees. In Doran, the court found that the homestead exemption did not violate the 1970 constitution. All three oases denied attorney’s fees on the ground that no tax money had been collected and, therefore, that there was no fund created by the plaintiffs.

The objectors argue that these cases are applicable because, they say, there is no fund here “brought into court by the efforts of petitioning attorneys nor a fund created for the benefit of the entire class.” The answer to the objectors’ argument is that the fund was in fact brought into court by the efforts of the petitioners, and the class did benefit from its creation. It was Myers who filed the original complaint, later joined by the other petitioners, long before the original action of Dee-El Garage v. Korzen was filed in the supreme court. If the trial court had upheld the constitutionality of the Act, it would have had little reason to create a fund.

The objectors, along with 63 other taxpayers, paid into the fund; 110 others did not pay. Those that did not, assuming they received notice, gambled on the outcome of the case in the supreme court. If the case had been reversed, those who had not paid would have been subject to penalties and interest and perhaps loss of their leases. It is also fairly arguable that, even if they paid the county or township under protest and the decree was affirmed, they would have lost the entire payment. (Cf. Weil-McLain Co. v. Collins, 395 Ill. 503, 71 N.E.2d 91; People ex rel. Herlihy Mid-Continent Co. v. Nudelman, 370 Ill. 237, 18 N.E.2d 225; People ex rel. City of Highland Park v. McKibbin, 380 Ill. 447, 44 N.E.2d 449; 321.L.P. Revenue § 237 (1957).) The objectors knew that the trust fund was made subject to attorneys’ fees by the terms of the decree before they made any payments into it. They did not seek to intervene nor to withdraw from the class. The petitioners prepared the decree which preserved and protected the fund.

In Flynn v. Kucharski, 59 Ill.2d 61, a taxpayer filed a class action which successfully challenged the constitutionality of the method of tax collection in effect in Cook County. The result was that tax money previously paid to township collectors was required to be paid to the county collector. The fund which was created during the litigation was tax money and, regardless of the outcome of the suit, would remain tax money to be disbursed for public purposes by either the township or the county. The plaintiffs petitioned for fees and the objectors cited two of the cases cited by the objectors here, Hoffman v. Lehnhausen and Rosemont Building Supply, Inc. v. Illinois Highway Trust Authority. The supreme court, in distinguishing those cases and upholding the allowance of fees, perforce impliedly held that the fund had been created through the efforts of the plaintiffs. We see no difference between the efforts of the plaintiffs in the Flynn case from those in this case with respect to the creation of the fund.

All of the objectors now before us minimize the benefits accruing to their clients by the creation of the fund. In the trial court, however, the written objections before Judge Covelli by Continental Bank stated:

“The intervening taxpayers made their payments under this protective order in order to avoid the imposition of interest or penalties in the event the leasehold use tax should be upheld.”

At the hearing, Continental Bank’s attorney said:

“That lease [Continental Bank] is a valuable lease. * s * I think our lease is a 198-year lease. Anyhow, we did not want to take any risk of losing it; neither did United or Flying Tiger want to lose their hangar’s lease from the City of Chicago. They thought discretion the better part of valor to pay the taxes, and to avoid any possibility of a default under their leases. The same goes for my other client, Kelly Springfield, which had a new lease on a warehouse out here in Des Plaines, and for those reasons we paid the taxes.”

The attorney for Chandler’s said: “If they [Chandler’s] didn’t pay the tax, they might lose their property.”

Although all the objectors, save Addressograph, conceded in the trial court that the only issue was the reasonableness of the fees, the petitioners have not raised any question of waiver in this court, nor shall we do so. But it was apparent to those objectors cited, and it is to us, that the fund did provide a benefit to all members of the class. We are not persuaded to hold otherwise by the argument of Addres s o graph, which admittedly paid voluntarily, that the amount of penalty for failure to pay would have been less than the fees and that “the possibility of losing the lease might well have been resolved by a deposit in escrow if the lessor insisted.” (Emphasis added.) The lessor might, on the other hand, have declared a forfeiture, insofar as we can determine from this record.

The objectors also maintain that they never expected to be charged for the services of the petitioners. The objectors knew that this was a dfess action and that their clients would be bound by any decree. They knew from the complaint that reasonable attorney’s fees were sought, as they are in virtually all class actions. They knew that the decree specifically provided that the court retained jurisdiction for the purpose of determining attorney’s fees. Yet they did nothing to assist in the appeal for the apparent reason that they did not believe the decree would be upheld in a court of review and that any effort and expense on their parts would be wasted. Of the amount paid into the fund, totalling almost $5 million, Continental Bank alone contributed almost 30%. It is unreasonable to conclude that they did not expect that the petitioners representing all the members of the class, if successful, would not look to their clients for fees. We conclude, therefore, that the fund came into being through the efforts of the petitioners, that it was beneficial to the objectors, and that it was not a fund created, as the objectors suggest “solely for the payment of attorney’s fees.” Consequently, we judge that the argument that the petitioners are entitled to no fee is untenable, and it would be manifestly inequitable to hold otherwise.

The petitioners presented three expert witnesses, the qualifications of whom are not questioned. Philip Corboy, Manuel Cowen, and Lowell Sachnoff each testified that he had personal experience with class-suit litigation. Corboy and Cowen testified that in their opinion 25% of the funds would be a reasonable fee; Sachnoff fixed the percentage at 25% to 33%. The objectors presented no expert witnesses. Their sole witness was Gerald L. Johnson, the president of Chandler’s, Inc., who testified that he understood that Myers was representing him and that he expected to be assessed a fee out of the money he had paid.

In Flynn v. Rucharski, 59 Ill.2d 61, the court quoted with tacit approval the factors the trial court considered in determining reasonable attorneys’ fees in a class-action tax case: The novelty, complexity and difficulty of the case; the contingent nature of tire fee; the benefit to the class and to the public; the skills and qualification of counsel; the time and labor expended and the responsibility undertaken.

The difficulty facing the petitioners when they first brought their actions is illustrated by the observation of the attorney for Continental Bank to Judge Covelli: “[W]e frankly thought the Supreme Court would disagree with Your Honor * * His statement was commendably candid and understandable. A similar statute had been upheld by the Supreme Court of Michigan (United States v. City of Detroit (1956), 345 Mich. 601, 77 N.W.2d 79) and the Supreme Court of the United States (United States v. City of Detroit, 355 U.S. 466, 2 L.Ed.2d 424, 78 S.Ct. 474). There was no clear Illinois precedent, and the complexity of the case is evident from a reading of the Dee-El Garage opinion, which, it should be noted, had two Justices dissenting. No case has been called to our attention involving an attack on the constitutionality of a revenue statute that was not relatively novel, difficult and complex.

Myers’ fee arrangement with Leader was contingent on the amount recovered: If Leader received nothing, Myers received nothing. To date Myers has received no money. The other two petitioners have agreed to bill their clients for the percentage fixed by Judge Covelli. The D’Ancona firm has thus far received an advance of $13,000, and the Arvey firm has received $11,300 from each of its two clients. The petitioners have expended in the aggregate approximately 1650 hours. The normal billing rate for Myers was $100 per hour for “a wealthy client” in a tax matter, the billing rate for the D’Ancona firm ranged from $30 to $75 per hour, and that of the Arvey firm was between $60 and $75 per hour. The two firms and Myers had agreed to divide any fee three ways.

No question has been raised as to the experience and competency of the petitioners. We have examined the trial record and the briefs submitted in this court and have heard oral arguments. All counsel on both sides have represented their clients with vigor and legal ability to a high degree, but we reject out of hand any assertion that the notices sent by Myers to the individual taxpayers “approached overt deception,” that it was “aimed at misleading” the class he represented, that it was “a deceiving warning,” or that the resistance to the State’s Attorney’s motion in the supreme court to change the order creating the fund was a “subterfuge.” If the county’s motion had been allowed, there would have been no fund, and the absence of a fund has often been assigned as a ground for dismissal of a class action. (See Perlman v. First National Bank, 15 Ill.App.3d 784, 305 N.E.2d 236; Hagerty v. General Motors Corp., 14 Ill.App,3d 33, 302 N.E.2d 678; Reardon v. Ford Motor Co., 7 Ill.App.3d 338, 287 N.E.2d 519.) Significantly, the objectors had notice of the motion and Continental Bank’s attorneys had an observer present at the hearing, but none of the objectors joined in the motion. Further, we see nothing opprobrious about a lawyer seeking to be paid for his work, and it may not be said here that the petitioners are “greedily seeking vast additional sums.”

The benefit to the class is self-evident: It is not required to pay the tax. Addressograph argues that the class may be back-taxed. But the new tax, which the petitioners successfully challenged, is three to four times greater than the previous one.

The general rule provides that the awarding of attorney’s fees is a matter within the discretion of the trial court and a reviewing court will not interfere unless that discretion has been clearly abused. (Hofing v. Willis, 83 Ill.App.2d 384, 389, 227 N.E.2d 797.) In the exercise of its discretion the trial court should not disregard any of the factors we have previously noted. The objectors point to a remark made by the trial court as an indication that it abused its discretion by ignoring the element of time and labor. During the cross-examination of a member of the D’Ancona firm who testified, in part, to the amount of time expended by various members of the firm, the court said: “This is not a quantum meruit procedure. They are asking 25%. If they put in 25 minutes, they still want 25%. This being a contingent basis, if they put in 25 minutes they still want 25%. So I think we’re wasting time when we are talking about hours.”

On this point, the objectors cite Flynn v. Kucharski, 59 Ill.2d 61, wherein the court held that “the time expended in such a case [class action] is not to be relegated to a secondary or minor position; it is a highly significant factor in determining the fee.” The Supreme Court reduced an award of 15% of $5 million (not $20 million, as the objectors maintain) to 11.2%. But the reduction was based on the failure of the attorneys to keep records on the amount of time they spent on the case, although they testified that they had each expended over 3700 hours over a 4y2-year period. The case is of no assistance to the objectors’ position here because there is no suggestion that adequate records were not kept by the petitioners.

Whether the remarks of the trial court, in the context they were made, may be construed as the objectors maintain is problematical. The fact is that the court heard evidence of time expended on behalf of the petitioners, each of whom acknowledged that time expended was a factor for consideration. But we fail to see how the trial court’s refusal to consider time, if indeed he did, can redound to the objector’s benefit. In other words, the petitioners, in effect, got nothing for their time; and if that increment were added to the other factors, the judge, to be consistent, should have given them more than the 15% awarded.

Assuming, however, for the sake of argument, that the trial court erroneously ignored the time expended, we would, as the objectors point out is our right, exercise our independent judgment. In our view, taking all the factors into consideration, 15% of the amount of the segregated fund represents an equitable fee. The judgment of the circuit court is affirmed.

Judgment affirmed.

BURKE and HALLETT, JJ., concur.


author: Mr. JUSTICE DRUCKER

text:
    The People ex rel. Junus Maciuba et al., Plaintiffs-Appellants, v. Warren Cheston et al., Defendants-Appellees.
    (No. 60045;
    First District (5th Division)
    December 13, 1974.

      Rehearing denied January 31, 1975.

    Thomas J. Grippando, of Chicago, for appellants.
    Baker & McKenzie, of Chicago (Francis D. Morrissey and John T. Coleman, of counsel), for appellees.
   Mr. JUSTICE DRUCKER

delivered the opinion of the court:

Plaintiffs filed an amended complaint, Count III of which alleged the commission of an assault and battery by three employees of the State of Illinois. Defendants moved to dismiss Count III, arguing that exclusive jurisdiction to hear claims of this nature is vested in the court of claims, and their motion was granted. On appeal plaintiffs contend that amended Count III was brought against defendants as individuals rather than in their capacity as State employees and therefore the circuit court had jurisdiction over their tort claim.

Plaintiffs alleged that they were reporters for the Chicago Illini, a student newspaper at the Chicago Circle Campus of the University of Illinois. On April 5, 1973, they were present at a “duly constituted” meeting of the faculty senate which was held on the campus. The faculty senate "is a duly constituted advisory body which is part of the University of Illinois and is supported in whole or in part by tax revenue and said body expends tax revenue.” During the course of the April 5 meeting the faculty senate voted to expel all nonmembers. Pursuant to this action defendants Hartnett and Johnson, who are State employees and faculty senate members, under the instructions of defendant Cheston who is the Chancellor of the Chicago Circle Campus and the chairman of the faculty senate, expelled plaintiffs.

Count III alleges that in expelling plaintiffs defendants committed an assault and battery. It further alleges that the decision of the faculty senate to bar nonmembers from its April 5 deliberations was in violation of statutory provisions requiring public bodies to conduct “open” meetings. See Ill. Rev. Stat. 1971, ch. 102, par. 41.

The court of claims has exclusive jurisdiction to hear and determine “[a]ll claims against the State for damages in cases sounding in tort, if a like cause of action would lie against a private person or corporation in a civil suit * * *.” (Ill. Rev. Stat. 1973, ch. 37, par. 439.8(d); see Powers v. Telander, 129 Ill.App.2d 10, 262 N.E.2d 342.) At oral argument plaintiffs conceded that their mere allegation of the commission of an assault and battery, a tort, by agents of the State allegedly acting within the scope of tlieir authority, would not be sufficient to place their claim within the jurisdiction of the circuit court. They assert, however, that since they averred that in closing its meeting the faculty senate had acted in violation of a statutory provision, defendants therefore exceeded their authority in expelling them, were not acting in their official capacity and consequently the court below was the proper forum for the resolution of their claim. There is no claim that plaintiffs were beaten up or manhandled, only that they were escorted from the room.

Whether a suit against a State employee is, in fact, a suit against the State and hence one that must be heard in the court of claims depends upon the nature of the employee’s alleged conduct and the relief sought. (Powers.) If the relief sought “could operate to control tire action of the State or subject it to liability,” the suit is deemed to be against the State. (Struve v. Department of Conservation, 14 Ill.App.3d 1092, 1094, 303 N.E.2d 32; Schwing v. Miles, 367 Ill. 436, 11 N.E.2d 944.) In the instant case plaintiffs alleged that Cheston, Hartnett and Johnson were State employees, that in expelling non-members of the faculty senate from the meeting they were acting pursuant to a directive of that body, and that the faculty senate is supported by and expends tax revenues. Plaintiffs assert that their right to a judgment is contingent upon a finding that the faculty senate could not close its meetings to the public. Thus it is clear that the relief sought will affect the manner in which the faculty senate, a State agency, can conduct its affairs. On the basis of the amended complaint before us there can be no doubt that defendants were acting in their official capacity, pursuant to the authorization of the faculty senate, an agency of the University of Illinois and the State. We believe, therefore, that the State is the real party against which relief should be sought. The court below properly dismissed Count III for want of jurisdiction, and we affirm the judgment.

Affirmed.

SULLIVAN, P. J., and BARRETT, J., concur.

       Counts I and II of plaintiffs’ amended complaint asked for mandamus, declaratory and injunctive relief to permit the public to attend all meetings of the faculty senate. At oral argument it was represented that these counts were subsequently dismissed and are the subject of a separate appeal.

       Although Ill. Rev. Stat. 1971, ch. 102, par. 42, generally requires the meetings of administrative and advisory bodies to be open to the public, we note that it does not prevent “an advisory committee appointed to provide a public body with professional consultation on matters germane to its field of competence from holding a closed session to consider matters of professional ethics or performance.”


author: Mr. JUSTICE GOLDBERG

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Michael O'Neil et al., Defendants-Appellants.
    (Nos. 59453,59619 cons.;
    First District (1st Division)
    December 16, 1974.

      Howard T. Savage, of Chicago (Howard O. Edmonds, of counsel), for appellants'.
    Bernard Carey, States Attorney, of Chicago (Patrick T. Driscoll, Jr., and John F. Brennan, Assistant State’s Attorneys, of counsel), for the People.
   Mr. JUSTICE GOLDBERG

delivered the opinion of the court:

Seven defendants were separately charged with sale of allegedly obscene magazines. (Ill. Rev. Stat. 1969, ch. 38, par. 11 — 20.) After hearing of evidence by the court without a jury, all were convioted. Fines and costs were assessed against them severally in amounts ranging from $300 to $1000. All defendants have appealed and the causes have been consolidated.

In this court, the defendants contend that the pertinent Illinois obscenity statute is constitutionally invalid because it did not comply with the requirements of Miller v. California decided by the United States Supreme Court on June 21, 1973; the applicable statute deprives defendants of their rights to due process of law under the fourteenth amendment of the United States constitution because it did not give them fair notice of what was obscene; it was void for vagueness and lacked a provision for a prior civil adversary hearing for determination of the issue of obscenity.

Any discussion of the inextricable mass of entanglements constituting the law of obscenity is perhaps best commenced with the statement that the United States Supreme Court has categorically settled the proposition “that obscene material is unprotected by the First Amendment.” (Miller v. California, 413 U.S. 15, 23, 37 L.Ed.2d 419, 93 S.Ct 2607.) The difficulty appears with every attempt to set standards for the use of triers of fact in determining whether or not any given piece of material is “obscene.” A majority of the members of the United States Supreme Court have been unable to agree upon a standard of this type. (See 413 U.S. 15, 22.) Therefore, it was inevitable that the matter of formulation of this elusive standard should be left by the Court to be fixed by the individual states. In Miller, the Court stated that the entire country was too large and diverse to admit the creation of a single all-inclusive definition of obscenity. (413 U.S. 15, 30.) This, then, was the holding of Miller upon which defendants now seek to rely.

The essence of the first point raised by astute counsel for defendants starts from the premise that Miller requires use of the words “patently offensive” in all cases without exception in order to accomplish State regulation within Federal constitutional requirements. We cannot agree that this is the teaching of Miller. On the contrary, we gather from study of this opinion, that the Supreme Court expressly refrained from creating regulatory schemes and concrete rules which the several States were obliged to follow. Although the court used the phrase “patently offensive” in giving “a few plain examples” of what the State could use in creating a regulatory scheme, it did not mandate the use of these words, or any other specific language, in the statutes. (See 413 U.S. 15, 25.) In an illuminating footnote, tíre Court expressly stated that it was not requiring the enactment of new obscenity statutes by every state but that existing State statutes “as construed heretofore or hereafter, may well be adequate.” (See note 6, 413 U.S. 15, 24.) Further, the very abandonment of the quest for national standards of obscenity by Miller shows in itself that it does not require use of the specific phrase “patently offensive” or any other particularized language as a Federal requirement of the constitutional validity of State statutes.

Added light is thrown upon this situation by the post-Miller decision in Hamling v. United States, 418 U.S. 87, 41 L.Ed.2d 590, 94 S.Ct. 2887. The Court clarified this issue by use of the following language:

“We made clear in Miller, 413 U.S., at 24, n. 6, that our decision was not intended to hold all state statutes inadequate, and we clearly recognized that existing statutes ‘as construed heretofore or hereafter, may well be adequate.’ That recognition is emphasized in our opinion in United States v. 12 200-ft. Reels of Film, 413 U.S. 123 (1973).” 418 U.S. 87, 41 L.Ed.2d 590, 618, 94 S.Ct. 2887, 2905.

We construe this language, and the Hamling decision, as leading directly to the conclusion that where existing state statutes or city ordinances are construed authoritatively by the proper court in the area or community to proscribe only materials which may be classified as obscene under clear and proper community standards, such statutes or ordinances are constitutionally valid.

Examination of the pertinent Illinois statute (Ill. Rev. Stat. 1969, ch. 38, par. 11 — 20) with these principles in mind leads us to reject the first argument raised by defendants. We find no magic in the phrase “patently offensive” so that the absence of these particular words from the legislative enactment raises no legal problem. The remaining issue requires an examination of the authoritative decisions of reviewing courts of Illinois to determine whether the statute is subject to the alleged constitutional infirmities raised by defendants.

The second and third points raised by defendants may be considered together. They involve fourteenth-amendment rights as to whether the statute on its face gives fair notice of what was obscene and whether it is too vague in its definition of obscenity. These issues have been determined adversely to defendants. The statute was given consideration by the court in People v. Burkhardt, 11 Ill.App.3d 760, 297 N.E.2d 694. This court there held that the definition of obscenity in die Illinois statute was not too vague and indefinite but that it met the due process requirements of the Federal constitution. The court cited a number of cases in support of this holding, including People v. Sikora, 32 Ill.2d 260, 204 N.E.2d 768. Since the statute was thus held sufficiently clear and definite to comply with constitutional requirements, it follows necessarily that it gave these defendants fair notice of what was obscene. The statute is, therefore, not subject to the claimed constitutional infirmities.

In addition to these authorities, the above contentions raised by defendants have been considered and rejected by the Supreme Court of Illinois in its recent decision of People v. Ridens, 59 Ill.2d 362. There, die supreme court considered the obscenity statute of the State of Illinois above cited and also the obscenity ordinance of the city of Moline. These cases were previously decided in the earlier opinion of People v. Ridens, 51 Ill.2d 410, 282 N.E.2d 691. This earlier opinion was vacated by the Supreme Court of the United States for further consideration in the light of the Miller decision. After an exhaustive review of the applicable authorities, and an analysis of the pertinent statute and ordinance, the Supreme Court of Illinois held that neither enactment lacked clarity or precision and that both withstood attack on the grounds of vagueness and overbreadth. The court, therefore, held that both statute and ordinance were constitutional.

The final point raised by defendants is the need for a prior civil adversary hearing and determination of the question of obscenity. The authorities cited do not assist defendants. Their brief depends upon a portion of the dissenting opinion by Mr. Justice Douglas in Miller and the decision in Paris Adult Theatre I v. Slaton, 413 U.S. 49, 37 L.Ed.2d 446, 93 S.Ct. 2628. We cannot regard these decisions as authoritative. The dissent of Mr. Justice Douglas merely expresses his own personal views which were not accepted by a majority of the Supreme Court. The decision in Paris Adult Theatre I does not require provision for a prior civil adversary hearing as a prerequisite to constitutional validity.

Defendants also cite Cambist Films, Inc. v. Illinois (N.D. Ill. 1968), 292 F. Supp. 185. That decision deals with the need of a prior adversary judicial determination in dealing with the issue of possible obscenity of a motion picture film. The United States Supreme Court has pointed out that there is a marked distinction between the seizure of a single copy of a publication and that of a film. (Roaden v. Commonwealth of Kentucky, 413 U.S. 496, 37 L.Ed.2d 757, 93 S.Ct. 2796.) Furthermore, in the cases at bar, the magazines were purchased from the defendants by police officers so that the element of seizure is lacking. Finally, the United States Supreme Court has held that even in the event of a seizure of printed material, there is no right to a prior civil adversary hearing to determine obscenity. (Heller v. New York, 413 U.S. 483, 37 L.Ed.2d 745, 93 S.Ct. 2789.) These various considerations impel us to reject the final contention made by defendants.

Since no other issues has been raised or argued in any manner in this court, we need not discuss other points such as the nature of the materials here involved. Supreme Court Rule 341(e)(7), 50 Ill.2d R. 341(e)(7).

Judgments affirmed.

EGAN, P. J., and BURKE, J., concur.


text:
    The City of Chicago, Plaintiff-Appellee, v. Walter Bagnell et al., Defendants-Appellants.
    (No. 59454;
    First District (1st Division)
    December 16, 1974.
    Howard T. Savage, of Chicago (Howard O. Edmonds, of counsel), for appellants.
    Richard L, Curry, Corporation Counsel, of Chicago (Daniel Pascale and Roseann Oliver, Assistant Corporation Counsel, of counsel), for appellee.
   Mr. JUSTICE GOLDBERG

delivered the opinion of the court:

Six defendants were separately charged with sale of allegedly obscene magazines. (Section 192.9, Municipal Code of Chicago.) After the hearing of evidence by the court without a jury, all were convicted. A fine of $200 and costs was assessed against each defendant. All have appealed and the causes have been consolidated.

The contentions raised here, and therefore the issues before us, are identical with the companion cases entitled People v. O’Neil (Gen. Nos. 59453 and 59619), this day decided by us, with the sole exception that this case involves an ordinance of the city of Chicago and the. other decision is concerned with a statute of the State of Illinois. We find no diference resulting from this.

The precise city ordinance in question here has been authoritatively considered, construed and held not subject to constitutional infirmity on the grounds advanced in the case before us. (City of Chicago v. Geraci, 46 Ill.2d 576, 264 N.E.2d 153, citing City of Chicago v. Kimmel, 31 Ill.2d 202, 201 N.E.2d 386.) Another decision, which involves an obscenity ordinan.ee of the city of Blue Island and which reaches the same result on the constitutional issues, is People v. DeVilbiss, 41 Ill.2d 135, 242 N.E.2d 761.

We accordingly reach die same conclusion of validity regarding the applicable ordinance of the city of Chicago as we have with reference to the statute. All of the judgments here appealed from are affirmed.

Judgments affirmed.

EGAN, P. J., and BURKE, J., concur.


author: PER CURIAM.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. James Hyman, Jr., Defendant-Appellant.
    (No. 59994;
    First District (1st Division)
    December 16, 1974.

      Philip M. Basvic, of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., and Mary Ellen Dienes, Assistant State’s Attorneys, of counsel), for the People.
   PER CURIAM.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Willie J. Wright, Defendant-Appellant.
    (No. 60070;
    First District (1st Division)
    December 16, 1974.
    James J. Doherty, Public Defender, of Chicago (Suzanne M. Xinos, Assistant Public Defender, of counsel), for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., and Thomas R. Rafter, Assistant State’s Attorneys, of counsel), for the People.
   PER CURIAM.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Lawrence A. Jones, Defendant-Appellant.
    (No. 60157;
    First District (1st Division)
    December 16, 1974.

      Paul Bradley and Brenda Richey, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., and Mary Ellen Dienes, Assistant State’s Attorneys, of counsel), for the People.
   PER CURIAM.


author: Mr. JUSTICE LEIGHTON

text:
    Richard Alan Long, Plaintiff-Appellee, v. Duggan-Karasik Construction Company, Defendant.—(Bituminous Casualty Corporation, Garnishee-Appellant.)
    (No. 58502;
    First District (2nd Division)
    December 17, 1974.

      Leo J. Doyle, Jr. and Leon M. Tarpey, both of Chicago, for appellant.
    Nat P. Ozman & Assoc. Ltd., of Chicago (Nat P. Ozman and Joseph Riden, of counsel), for appellee.
   Mr. JUSTICE LEIGHTON

delivered the opinion of the court:

This appeal arises from a garnishment proceeding. Plaintiff-appellee Richard Alan Long sued Duggan-Karasik Construction Company in tort and obtained a judgment for $175,000. Duggan-Karasik appealed but did not obtain a stay as provided in Supreme Court Rule 305. While that appeal was pending, Long served a garnishment affidavit and interrogatories on garnishee-appellant Bituminous Casualty Corporation, which answered and admitted that from a policy of insurance it had issued, there was in its possession the sum of $82,733.20 which could be applied in partial satisfaction of Long’s judgment against Duggan-Karasik. Based on this answer, the trial court entered a garnishment judgment in that amount, and Bituminous perfects this appeal. The issue presented is whether Long’s garnishment was premature because Duggan-Karasik, although it had not obtained a stay, was appealing the underlying judgment against it.

We affirm the garnishment judgment against Bituminous. In doing so, we reject the argument that Ancateau v. Commercial Casualty Insurance Co., 318 Ill.App. 553, 48 N.E.2d 440, states the rule that controls this case. In Cuttone v. Peters, 67 Ill.App.2d 1, 6, 214 N.E.2d 499, we held that the interests of a judgment creditor in a speedy and sure remedy by which he can satisfy his judgment must come before the interests of an insurance company. We took occasion to observe that in the event there is an effective garnishment and later the underlying judgment is set aside, “* * * the insurance company surely has a right of action against a plaintiff for recovery of any money it has paid.” (67 Ill.App.2d 1, 6.) However, in this case, the underlying judgment was not set aside. To the contrary, on October 21, 1974, this court affirmed Long’s judgment against Duggan-Karasik. See Long v. Duggan-Karasik Construction, 23 Ill.App.3d 812, 320 N.E.2d 553.

In Colon v. Marzec, 116 Ill.App.2d 278, 253 N.E.2d 544, we held that a garnishment while an underlying judgment without a stay was being appealed was not premature. Cuttone and Colon are decisions of this court which indicate a trend away from the philosophy expressed in Ancateau, a decision which held premature a garnishment action based on a judgment still pending on appeal. This trend is reflected not only by decisions of reviewing courts in this State but of those in other jurisdictions as well. See Garmisa v. Garmisa, 4 Ill.App.3d 231, 234, 280 N.E.2d 455; Williams v. Moran (Miss. 1970), 233 So.2d 110; Conley v. Singleton (Fla.App. 1965), 171 So.2d65; Annot, 31 A.L.R.3d 899 (1970).

Affirmed.

HAYES, P. J., and STAMOS, J., concur.

       With regard to a stay of enforcement of a judgment for money only, this rule provides that “* * 0 [a]n appeal stays the enforcement of a judgment for money only if a notice of appeal is filed within 30 days after the entry of the judgment appealed from and a bond in a reasonable amount to secure the appellee is presented, approved, and filed within the same 30 days or within any extension of time granted under subparagraph (2) of this paragraph. Notice of the presentment of the bond shall be given to the appellee.” Ill. Rev. Stat. 1971, ch. 110A, par. 305(a)(1).