author: Mr. JUSTICE STAMOS

text:
    Trustees of Schools of Township 42, Cook County, for use of Board of Education, School District Number 57, Cook County, Petitioner, v. Gerald A. Schroeder et al., Defendants-Appellants— (Wilbert J. J. Wahler and Daniel W. Pecyna, Petitioners-Appellees.)
    (No. 54397;
    First District
    — November 16, 1971.

      John E. Juergensmeyer, of Elgin, and Walter R. Stewart, of Champaign, for appellants.

      Hinshaw, Culbertson, Moelmann, Hoban & Fuller, and Samuel Papanek, all of Chicago, for appellees.
   Mr. JUSTICE STAMOS

delivered the opinion of the court:

This is an appeal from an order granting summary judgments in favor of appellees on their- petition for attorneys’ fees and on appellants’ counter-claim for legal malpractice.

The petition and counter-claim stem from a protracted history of litigation by appellants, Mr. and Mrs. Gerald Schroeder, relating to a condemnation action instituted by the Trustees of Schools in 1959. This action was commenced pursuant to the eminent domain authority conferred upon school districts by Ill. Rev. Stat. 1959, ch. 122, par. 7 — 17. The Schroeders retained Wahler & Pecyna to defend the condemnation suit. The trial court denied their traverse, and a jury verdict of $267,-088.33 was returned.

On post trial motion the trial court ordered a remittitur of $42,088.33. The Schroeders refused to file a remittitur and appealed the resulting order granting a new trial. The Supreme Court reversed and judgment was entered on the initial verdict. (Trustees of Schools v. Schroeder (1961), 23 Ill.2d 74.) The trial court complied with this order, awarding a sum of $280,936.10, the amount of the verdict plus costs and interest. The court entered a further order finding that the judgment award had been paid to the County Treasurer and that fee simple title was vested in the Trustees and empowered the Trustees to take possession of the property. On December 13, 1961, the Schroeders were evicted and the Trustees took possession.

On their second appeal taken to the Supreme Court, the Schroeders, through then- attorneys, Wahler & Pecyna, unsuccessfully raised as the sole issue, “whether a school district governed by article 7 of the School Code, (Ill. Rev. Stat. 1959, ch. 122, pars. 7 — 1 to 7 — 23) is prohibited from taking land by eminent domain within 40 rods of the owners’ dwelling.” (Trustees of Schools v. Schroeder (1962), 25 Ill.2d 289, 290.) The Schroeders retained new counsel for a third appeal in which they raised a number of issues, including whether the pertinent eminent domain statute authorized the granting of a fee simple absolute interest as opposed to a lesser estate. The Supreme Court refused to rule on the merits of this appeal, holding that each of the arguments presented could have been raised in the second appeal and, not being raised, were deemed to be waived.

Further appeals arising from the original condemnation action were subsequently pursued in state and federal courts, but are irrelevant to the specific issues before use.

On June 28, 1962, Wahler & Pecyna served a Notice of Attorneys’ Lien upon the Treasurer of Cook County, claiming fees for representing the Schroeders in the condemnation action and in the first two appeals. On December 26, 1962, in an action supplementary to the condemnation cause, Wahler & Pecyna petitioned the circuit court to order the County Treasurer to pay them the sum of $22,265.17 from the condemnation award still retained by that office. In 1968 petitioners filed an amendment to their petition for attorneys’ fees, seeking in a second count the sum of $34,530.34 plus interest of $9,802.70 for a total of $44,333.04. In the interim the Schroeders had filed a counter-claim, Count II of which alleged malpractice against Wahler & Pecyna and sought $1,000,000 in damages.

Wahler & Pecyna moved for summary judgment on Count II of their petition for an attorneys’ lien and fees and for summary judgment on Count II of the Schroeders’ claim for malpractice. Both motions were granted. An attorneys’ Men for $47,083.63 was allowed, and the County Treasurer was ordered to disburse that sum from the condemnation award. It is from these orders that the Schroeders have appealed.

If the pleadings, discovery depositions, exhibits and affidavits present a genuine issue as to any material fact, a summary judgment order should not be granted. (Ill. Rev. Stat. 1969, ch. 110, par. 57 (3).) It is our task, therefore, to determine whether a genuine issue of material fact existed as to Count II of the petition for attorneys' fees or as to Count II of the counter-claim for malpractice.

Count II of the Schroeders’ counter-claim sets forth five different allegations of malpractice. We believe that the last four of these allegations are so clearly without legal or factual merit that they warrant no discussion. The first allegation concerns the failure of Wahler & Pecyna to properly raise on appeal the theory that the then-existing School Code eminent domain provisions authorized a taking of no greater estate than a fee simple determinable. It is alleged that the attorneys and clients had agreed that all possible issues would be raised on appeal, including specifically the school district’s lack of authority to acquire an estate in fee simple absolute through eminent domain. It is further alleged that in failing to assert this theory the counter-defendants waived a meritorious defense contrary to the specific instructions of their clients.

Appellants correctly cite the obligation of an attorney to follow the instructions of his client. Whenever an attorney disobeys the lawful instructions of his client he is liable for any loss which ensues from such act. (Fleener, v. Fleener (1970), 263 N.E.2d 879; Annot. (1928), 56 A.L.R. 962.) Damages will not be presumed, however, and the client bears the burden of proving that damages resulted. This burden involves the task of establishing that, but for the negligence complained of, the client would have been successful in the prosecution or defense of the action in question. (Oda v. Highway Insurance Co. (1963), 44 Ill.App. 2d 235; Kimen v. Ettelson (1940), 303 Ill.App. 230; Annot., (1956), 45 A.L.R.2d 5, 21.) We therefore believe that unless counter-plaintiffs' theory that a school district can take no greater estate tiran a fee simple determinable finds some support in Illinois law, the court below was presented with no genuine issue of material fact, and summary judgment was appropriate.

The Schroeders place primary reliance on Kelly v. Bowman (E.D.Ill. 1952), 104 F.Supp. 973. Initially, we point out that the issue before that court differed from that presented in the case at bar. In Kelly, the court sought to determine what quantum of estate was taken by a school district in a 1906 condemnation suit, where the record did not reflect the precise quantum of estate claimed in 1906 by that school district. We must determine whether section 7 — 17 of the 1959 Illinois School Code grants the power to take a fee simple absolute interest if a school district so desires. In the course of the Kelly opinion, however, the 1905 School Code’s eminent domain provision, which was substantively similar to section 7 — 17, was interpreted at page 974:

“Section 151 provides and limits the taking of lands for the purpose of a schoolhouse site. There is no intention expressed by the legislature in this Act for the school district to obtain a fee simple title. It is quite clear that the Legislature intended that the Trustees were to exercise their rights of eminent domain in obtaining the school site for school purposes only.”

The doctrine of stare decisis does not require this court to accept that federal trial court’s interpretation of an Illinois statute. (Ray Schools-Chicago-Inc. v. Cummins (1957), 12 Ill.2d 376.) Our decision should be guided by the statutory interpretations promulgated by the courts of Illinois.

In Miner v. Yantis (1951), 410 Ill. 401, our Supreme Court had occasion to interpret the eminent domain provision of the 1881 School Code, a section also similar in substance to section 7 — 17. As in Kelly v. Bowman, supra, the crucial issue was the nature of the interest taken by condemnation, where the record failed to reveal the intention of the condemning school district. The court’s holding invoked two legal presumptions. First, in the absence of proof to the contrary, it was presumed that the condemning party intended to claim no greater estate than was absolutely necessary to accomplish its purposes. As a corollary, it was presumed that possession of the real estate was subservient to the rights of the owner of record title. The ultimate conclusion of the court was that, absent other evidence, it would presume that the school district had acquired no more than an easement, a possessory estate consistent with the rights of the holder of record title. This holding, however, in no way suggested that the school district would have been inhibited by the eminent domain statute from taking in fee simple absolute if it had so desired. Quite the contrary was expressed by the court at pages 404 — 405:

“Plaintiffs argue that the powers of school trustees are so limited that they do not have the power to acquire realty in fee simple absolute, except in two cases: (1) to take title in satisfaction of a judgment, and (2) to take title in settlement of debts; and insist that in only these two cases did the legislature give them the power to take title without limitation. They insist that in all other instances the trustees cannot take title to real estate in fee simple, but that they are strictly limited in all cases to such interest as is absolutely necessary for school purposes. With this contention we cannot agree. If this reasoning were followed, trustees of schools could never obtain anything but an easement upon land upon which it is desired to erect a schoolhouse. This is too narrow a construction of the statutory power of school trustees to acquire real estate for school purposes/ We are of the opinion that trustees of schools may by proper grant, take title in fee simple absolute to real estate to be used for school purposes.”

This statement, although it is dicta, is a clear indication of our Supreme Court’s disposition against limiting the estate obtainable by a condemning school district.

In City of Waukegan v. Stanczak (1955), 6 Ill.2d 594, the Illinois Supreme Court was called upon to determine whether the eminent domain powers granted in the School Code authorized the taking of a fee simple absolute. Although the condemnation in that case was initiated by the school district, it was prosecuted by the city. Accordingly, the comt examined the breadth of statutory power conferred by both the City Charter and the pertinent School Code eminent domain statute, (Ill. Rev. Stat. 1953, eh. 122, par. 32 — 30). The court held as follows at page 606:

“* * * [W]e hold that the grant of power here included the power to take a fee simple, and the award vesting fee simple title was not excessive in quantum of estate. [Cases cited.]”

Without entering into a lengthy dissection of the court’s opinion, we feel that the frequent references to the eminent domain provision of the School Code and to Miner v. Yantis, supra, leave no doubt that the decision was, at least in part, based on the conclusion that section 32 — 30 of the School Code authorized the taking of an estate in fee simple absolute.

It is the Schroeders’ contention that, despite these cases, the power granted by the statute at bar, section 7 — 17 of the 1959 School Code, has never been judicially construed. They assert that the argument they urged upon their attorneys was thus one of first impression of this state. We have already noted that the statutory provision interpreted in Miner v. Yantis, supra, resembled par. 7 — 17 in substance. A comparison with par. 32 — 30, interpreted in City of Waukegan v. Stanczak, supra, also reveals basic similarities. Nothing in these three statutes warrants a narrower interpretation of the grant of condemning power in section 7 — 17 than in the other School Code eminent domain provisions interpreted in Miner and City of Waukegan. We believe that the position of our Supreme Court is clear and that the Trustees of Schools were fuUy empowered by par. 7 — 17 to take a fee simple absolute estate in the Schroeders’ property. For Wahler & Pecyna to have argued otherwise an appeal would have been a futile act and could not have altered the outcome of the litigation.

In Kimen v. Ettelson, supra, plaintiffs instituted a cause of action virtually identical in theory to the Schroeders’. We consider the disposition in that case instructive:

“The cases are rare, indeed, in which a pleader can assert with certainty what the decision of a court ‘might have been.’ There are such cases, as, for instance, where an attorney fails to interpose the defense of the Statute of Limitations where the action has been barred thereby and similar cases. In this case the certainty appears to be that the court would not have adopted the argument if it had been presented. * * *
We are persuaded no skill or vigilance of a lawyer, however distinguished, could have procured a different decision in the Kimen case. The trial court correctly held the complaint did not state a cause of action, and the court did not err in striking the complaint and entering the order dismissing the suit.”

For the same reasons, we hold that the failure to pursue on appeal the legal argument urged by the Schroeders could not have supported an action for malpractice. No genuine issue of a material fact was raised as to the claim for malpractice, and the order granting counter-defendants’ motion for summary judgment was correct.

With regard to Count II of the petition for attorneys’ fees, the parties have stipulated to the existence of an employment relationship. The only disagreement is whether there existed a genuine issue of material fact as to the terms of the contract creating that relationship.

The order granting petitioners’ motion for summary judgment awarded the sum of $47,038.63. Nowhere in that order is there reference to the basis for this particular figure. Nowhere in petitioners’ motion for summary judgment is there reference to the source of the figure of $46,-404.86, the claimed damages. We note, however, that in the amended petition there is cited a “written agreement and contract of hire,” dated April 22, 1960, as the basis for petitioners’ damages. That reference is to a letter from Wahler & Pecyna to the Schroeders, apparently confirming a previous conversation concerning attorneys’ fees for the pending condemnation litigation. The letter provided as follows:

“Confirming our conversation of the past week, I wish to advise you that we agree to handle your condemnation suit on the basis of 22% of any recovery over and above $8,000.00 per acre plus costs. Costs in this matter would be appraisals fees, court costs, court reporters fees and so forth.
As I informed you we have filed a Traverse. In the event that the traverse is sustained, you will be charged on a per diem basis. If during the course of the proceedings, we deem it advisable to take an appeal from any adverse rulings of the Court, then such appeal will be handled on the basis of a per diem and costs basis.”

Petitioners contend that this letter manifested the intent of both the attorneys and their clients and expressed within its four corners the contract for hire. The Schroeders, however, never signed, initiated or otherwise acknowleged this “contract.” In fact, in their counter-affidavit they refute petitioners’ contention and assert a number of other formulae for attorneys’ fees which they contend formed the basis of the attorney-client relationship.

Exhibit # 1 attached to the Schroeders’ counter-affidavit is another letter from Wahler & Pecyna, this one dated January 26, 1961. After again referring to earlier conversations, the attorneys outlined therein a new arrangement for attorneys’ fees. The 22% contingency fee was reduced to 11% plus $5,000. The basis for appellate fees was changed from quantum meruit to a flat fee $10,000 plus costs. In their counter-affidavit the Schroeders allege the existence of a further agreement between the parties which was not reflected in correspondence; that in the event the final condemnation award was not satisfactory to the Schroeders, the attorneys would be paid upon an hourly rate commensurate with the schedule of fees published by the Chicago Bar Association.

While the matter is not free from doubt, it appears that the trial judge accepted the theory of the petitioners that the letter of April 22, 1960, expressed the mutual intention of the parties. The court apparently awarded damages based on the formula defined in that letter. Petitioners argue that summary judgment was therefore appropriate, because only a legal issue and no fact issues were before the trial court. In support, they cite the recognized Illinois rule that the interpretation, construction or legal effect of a contract is a matter to be determined by the court as a question of law. (12 I.L.P. Contracts, § 246.) Petitioners, however, have misinterpreted the precise issue raised by their motion for summary judgment and respondents’ counter-affidavit. The question raised was whether the contract for hire was manifested in the first letter, in the second letter, in intervening discussions or in some combination of all these. As thus presented, the issue requires the application of legal principles which petitioners failed to cite. While the court determines the meaning of contractual terms, as a matter of law, it is the jury’s province to determine what terms comprise the contract, and the intent of the parties in regard thereto. (Stone v. Appel (1883), 12 Ill.App. 582; Mosley v. Hundhausen (1918), 211 Ill.App. 627.) If the construction of an agreement is dependent not only upon the meaning of the words employed but also upon extrinsic facts and circumstances or upon the construction which the parties themselves have placed upon the contract, and the facts are controverted, the inference to be drawn is for the jury. (Chicago Daily News v. Kohler (1935), 360 Ill. 351; Bertlee Co. v. Illinois Publishing & Printing Co. (1943), 320 Ill.App. 490.) If a contract has to be made out partly by letters and partly by evidence of conversations concerning which there is not entire agreement as to what was said, or the circumstances under which the utterances were made, the question of whether there was a contract, as well as, if so, what it was, is a question of fact for a jury. Telluride Power Transmission Co. v. Crane Co. (1902), 103 Ill.App. 647.

We hold that a genuine issue of material fact was presented by the counter-affidavit and exhibits of the Schroeders. It was error to grant the motion for summary judgment on Count II of the petition for attorneys’ fees.

We affirm that part of the order of the trial court granting summary judgment as to Count II of the counter-claim for malpractice and reverse that part granting summary judgment as to Count II of the petition for attorneys’ fees. This cause is therefore remanded for further proceedings not inconsistent with this opinion.

Affirmed in part and reversed and remanded in part.

LEIGHTON, P. J„ and SCHWARTZ, J, concur.


source: Caselaw Access Project

license: Public Domain

text:
    Judith Cohen, Plaintiff-Respondent, v. Leonard Sager, Defendant-Petitioner.
    (No. 54891;
    First District
    — November 16, 1971.

      Medard Narlco, of Chicago, for defendant-petitioner.
    Elliot M. Simon, of Chicago, (Frank C. Urban, Jr., of counsel,) for plaintiff-respondent.
   Mr. JUSTICE STAMOS

delivered the opinion of the court:

This action was brought to recover damages for personal injuries received when the automobile in which the plaintiff was a passenger was struck by defendants vehicle. The jury rendered a general verdict for the defendant and answered two special interrogatories which were ruled inconsistent with the general verdict. The trial judge entered judgment for the plaintiff in accordance with the special findings and ordered a new trial to determine the amount of damages. This comt granted the defendant’s petition for leave to appeal.

The special interrogatories which were answered by the jmy were:

“(1) Was the proximate cause of the accident the inclement weather and icy conditions that existed at the time of the occmrence? No.
(2) Was the defendant guilty of any negligence which proximately contributed to cause the occurrence in question? Yes.”

In addition to the special findings, the jury returned a general verdict for the defendant. Ruling upon plaintiff’s post-trial motions, the trial comt held that the special findings were inconsistent with the general verdict and that the special findings controlled.

Defendant contends that the trial comt erred in directing a verdict for the plaintiff and ordering a new trial on the issue of damages. He mges that the jmy’s findings are not inconsistent and that they were properly arrived at in accordance with the comt’s instructions.

Ill. Rev. Stat. 1969, ch. 110, par. 65 provides that:

“When the special finding of fact is inconsistent with the general verdict, the former controls the latter and the comt may render judg__ment accordingly.”____

Judicial interpretation of this section has established that statutory inconsistency exists only when the special findings are clearly and absolutely irreconcilable with the general verdict. (Wicks v. Cuneo-Henneberry Co. (1925), 319 Ill. 344, 150 N.E. 276; Devine v. Federal Life Insurance Co. (1911), 250 Ill. 203, 95 N.E. 174.) Where an examination of the jury findings reveals that a reasonable hypothesis consistent with the general verdict exists, the special findings cannot be said to be absolutely irreconcilable. (Devine v. Federal Life Insurance Co., supra; Smith v. McCarthy (1889), 33 Ill.App. 176.) Therefore, if the special findings do not cover all the issues submitted to the jury and are not solely determinative of the case, a reasonable hypothesis consistent with the general verdict exists. In such a case, the general verdict is responsive to those issues not reached by the special findings. And because these issues remain as possible controlling factors in the jury’s decision, the statute does not apply.

This principle was applied in Knapik v. Stefek (1934), 274 Ill.App. 19. Affirming a judgment of damages for an assault upon the plaintiff the court held that the special findings returned were not inconsistent with the general verdict. The court said, at page 21:

“# * tf we it was charged in the declaration that defendant with force of arms, maliciously and violently assaulted the plaintiff. Another paragraph charges that defendant with great force and violence, shook and pulled about the plaintiff and knocked him down to and upon the cement floor of plaintiff’s place of business, and violently and maliciously kicked the plaintiff, and also with malice damaged plaintiff's clothes. While the special interrogatory may cover the issue as to the malicious conduct of defendant, it does not cover the charge that defendant knocked plaintiff down. The general verdict is responsive to the issue raised by this charge and is not inconsistent with the answer to the special interrogatory, which presented the question whether the defendant wilfully and maliciously injured the plaintiff.”

In Knapik, supra, the special interrogatory failed to reach the question whether plaintiff knocked the defendant down. Because the jury could decide this question in the affirmative and concurrently hold that he had not acted maliciously, the statute was held inapplicable.

In the case at bar, the trial judge included in his charge an instruction enumerating the issues which must be resolved by the jury in reaching their decision. The instruction stated that, before they could return a verdict for the plaintiff, they must find from their consideration of the evidence (1) that the defendant was negligent, (2) that the plaintiff was injured, and (3) that the negligence of the defendant was the proximate cause of the injury to the plaintiff. Unless this cotut could conclude that the special findings disposed of each of these issues in a manner irreconcilably inconsistent with the general verdict in favor of the defendant, that general verdict must stand.

The special interrogatories answered by the jury resolved that the inclement and", icy conditions that existed at The time of. the ^accident were not the - proximate, cause;,of the-accident and- that the defendant was guilty-of; negligence , which "contributed To the. cause«of the accident.' There were no special findings determining whethenthe plaintiff suffered any injury as a result ,of the occurrence or whether any resulting injury was proximately. caused by the defendant’s negligence. The - inclusion of a general verdict in, addition to The special findings thus served a specific piirposc. It-disposed of these remaining issues. uí jnh cm- .

The special findings^ did- not exclude every, reasonable hypothesis consistent with the general verdict. It is entirely consistent with reason that the jury found that while the defendant was negligent in causing the collision, no injury was suffered or that her injury was not proximately caused by the defendant’s negligence. We hold that these special findings do not control the general verdict and that the trial court was in error.

The plaintiff’s contentions rely on Williamson v. Spencer (1969), 104 Ill.App.2d 442, 244 N.E.2d 325, wherein the court stated at 104 Ill.App.2d 442, 445:

“A verdict by the jury of not guilty relates to the issue of liability and not to the issue of damages. A verdict of not guilty, therefore, cannot be equated with a verdict of guilty and a finding of no damages. It may be, as the appellant suggests, that having resolved the issue of liability in favor of tire defendant, the jury had no occasion to consider the issue of damages.”

The argument is that, upon the above authority, a general verdict does not relate to damages, but only to liability. Therefore, because the special findings fixed liability in the defendant, an irreconcilable conflict exists and the special findings must control.

This argument erroneously ignores the distinction between injury, which is an element of the cause of action and a prerequisite to a finding of liability, and damages, which are assessed only after liability is found. The comt in Williamson was not confronted with a conflict between separate jury findings as in the case at bar, but was applying the Pedrick rule. In reversing and remanding for a new trial on the issue of damages only, this court found from the record that a directed verdict should have been entered for the plaintiff under the criteria set out in Pedrick. The decision was based upon a determination that the evidence going to liability, i.e., negligence, freedom from contributory negligence, injury, and proximate cause, was sufficient to conclude that no verdict for the defendant could ever stand. However, the evidence going to the amount of damages to be assessed was not as clear. The court held that, since the not guilty verdict did not go to the question of the amount of damage to the plaintiff, it was not required to consider that evidence to reverse under Pedrick. The case, therefore, does not stand for the proposition that a general verdict of not guilty does not reach the issue of injury, but merely that the amount of damages to be assessed is not an element of the cause of action. A second case relied upon by the plaintiff, Hamas v. Payne (1969), 107 Ill.App.2d 316, 246 N.E.2d 1, is distinguishable on the same grounds.

For the reasons expressed, the order granting plaintiff a judgment on the issue of liability and a new trial on the issue of damages are hereby reversed and the cause is remanded with directions to enter judgment on the verdict in favor of defendant.

Reversed and remanded with directions.

LEIGHTON, P. J., and SCHWARTZ, J„ concur.

       Contributory negligence .was not an issue in this case.1

         Pedrick v. Peoria and Eastern R.R. Co., (1967), 37 Ill.2d 494, 229 N.E.2d 504. The rule states that judgment verdicts ought to be directed and judgments n.o.v. entered only in those cases in which all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors the movant that no contrary verdict based on that evidence could ever stand.


author: Mr. JUSTICE BURMAN

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Mary Louise Graham, Defendant-Appellant.
    (No. 54109;
    First District
    — November 17, 1971.

      Gerald W. Getty, of Chicago, (Suzanne M. Kohut, James N. Oramenos and James J. Doherty, Assistant Public Defenders, of counsel,) for appellant.
    Edward V. Hanrahan, State’s Attorney, of Chicago, (Robert A. Novelle and Arthur L. Belkind, Assistant State’s Attorneys, of counsel,) for the People.
   Mr. JUSTICE BURMAN

delivered the opinion of the court:

The defendant, Maiy Louise Graham, was tried on the charge of murder and found guilty by a jury of the lesser-included offense of voluntary manslaughter. She was sentenced to serve not less than two nor more than ten years in the Illinois State Reformatory for women.

On appeal, defendant contends (1) that she was not proven guilty beyond a reasonable doubt and (2) that the prosecutor’s inflammatory remark in his closing argument denied her a fair trial.

Rodney Thortsen, brother of the deceased Jack Thortsen, testified that he resided with his brother at 5045 N. Kenmore. At about 4:00 A.M. on February 17, 1967, he was asleep in the bedroom when he was awakened by his brother and a woman entering the apartment and engaging in loud talking and argument. He yelled for them to be quiet and went back to sleep. At about 5:00 A.M., he awoke again and saw the defendant trying to get out the door. He noticed his brother lying on the floor and asked her what had happened to him. She replied, “He fell.” Defendant then left the apartment and Rodney Thortsen went back to sleep. When he left for work in the morning, his brother was still on the floor, and when he returned home that evening, he discovered that his brother was dead.

On cross-examination, the witness said his brother often came home drunk and was frequently still lying on the floor when he left for work in the morning. He also testified that he had heard furniture being knocked down.

It was stipulated that if Dr. Jerry Kearns were called to testify, he would state that his autopsy disclosed with reasonable medical certainty that the cause of Jack Thortsen’s death was a bullet wound of the chest, heart and lungs.

The defendant, Mary Graham, age 26, took the stand in her own behalf. She testified that on February 17, 1967, at 2:30 A.M., she went to a tavern with her roommate. While there, she overheard a group of men saying they were going to “jack roll” the deceased. She approached him and told him what she had heard. He asked her if she wanted money and she said no, but she suggested that they go get some coffee at a restaurant so that he would not have to leave the tavern alone. He said, “No * * * let’s go to my place and have a drink.” Once inside his apartment, she told him that she didn’t have time for a drink, and was about to leave, but he said, “You’re not going anywhere,” used foul language, slapped her and threw her across the room. She picked up her purse and ran to the kitchen door, but could not open it. He grabbed her and hit her across the face again. At this point, she drew a gun from her purse, but he just laughed and grabbed her throat. While he was choking her, she fired the gun. Thortsen clutched his stomach and fell backwards on to the floor. As she started for the front door, she heard someone in the bedroom and told him to call an ambulance and the police because Thortsen was hurt. Then Rodney Thortsen came out of the bedroom and said, “No, * * * he’ll be okay when he wakes up ***** What did he do; fall and bump his head?” and she said, “Yes.” Miss Graham testified that she was in the apartment for 15 or 20 minutes and that she left at about 4:30 A.M. She threw the gun in the lake and walked back to her apartment.

On cross-examination, defendant admitted that she did not report the incident to the police until they arrested her, one week later.

Mary Wilder, a friend of the defendant, testified that she saw Mary Graham at 10:00 A.M. on February 17, and that she noticed marks on her neck, underneath her eye and on her knee and left arm. She said the defendant told her that a man had tried to seduce her.

Voluntary manslaughter, which is a lesser-included offense in a charge of murder, may involve either of two situations: one, where a person kills another without lawful justification, but where at the time of the killing he was acting under a sudden and intense passion resulting from serious provocation by the person killed; the other, where a person intentionally kills another, but at the time of the killing believes the circumstances to be such that if they existed, his conduct would be justified under the law of self-defense, and his belief is unreasonable. (Ill. Rev. Stat. 1969, ch. 38, par. 9 — 2.) The record reveals that the jury was properly instructed as to both theories of voluntary manslaughter and as to the question of the reasonableness of defendant’s belief in the need for deadly force.

The defendant contends that she was not proven guilty beyond a reasonable doubt. She does not dispute that she fired the gun which killed Thortsen, but contends that the killing was justified as an act of ultimate self-preservation. Where a defendant introduces evidence which raises the issue of self-defense, the State has the burden of proving beyond a reasonable doubt that the act was criminal. (Ill. Rev. Stat. 1969, ch. 38, pars. 3 — 2, 7 — 14.) “[o]nce the affirmative defense is interposed, by the introduction of some evidence’ (sec. 3 — 2(a)) by either the State or the defense, the burden of proving guilt beyond a reasonable doubt as to that issue, as well as all other necessary elements of the offense, is placed upon the State.” (People v. Warren, 33 Ill.2d 168, 173, 210 N.E.2d 507.) But even in the absence of directly contradictory evidence, the jury is not compelled to accept the defendant’s exculpatory statements as conclusive, and may consider the surrounding circumstances and the probability or improbability of her testimony. (People v. Warren, 33 Ill.2d 168, 210 N.E.2d 507; People v. Wiggins, 12 Ill.2d 418, 147 N.E.2d 80.) “The issue of self-defense is always a question of fact for a jury under proper instruction, and such decision will not be disturbed unless the evidence is so unreasonable, improbable or unsatisfactory as to suggest a reasonable doubt.” People v. Watts, 101 Ill.App.2d 36, 44, 241 N.E.2d 463, 467.

In the instant case, the jury chose to disbelieve the exculpatory statements of the defendant and found that she did not entertain a reasonable belief in the need to use deadly force to protect herself. We believe that the evidence was sufficient to justify the jury’s verdict. Rodney Thortsen testified that when he asked defendant what had happened, she merely told him his brother had fallen. The jury also had evidence before it which disclosed that the “good Samaritan” failed to stay in the apartment, failed to seek medical assistance for the deceased, failed to report the incident to the police, and threw her gun into the lake. From our examination of the record, we cannot say that the jury’s verdict was so unreasonable, improbable or unsatisfactory as to leave a reasonable doubt as to defendant’s guilt.

Defendant also contends that the prosecutor’s inflammatory remark in closing argument denied her a fair trial. The prosecutor stated to the jury, “They arrive at 5045 N. Kenmore, and she goes up to his apartment, and he is pretty well smashed, and, actually, she has had a few drinks too. But once inside I think it only reasonable and logical to conclude the purpose of going up there concerned sexual acts. This does happen. We all know it.” The defendant argues that the prosecutor’s inference that she accompanied decedent to his home for the purpose of engaging in sexual acts was without basis in fact or probative value and was so inherently prejudicial that it violated defendant’s right to a fair trial.

We note from the record that the defense attorney did not object to the comment by the prosecutor. It is, of course, well settled that questions not brought to the attention of the trial judge may not be raised for the first time in a court of review. (People v. Hampton, 44 Ill.2d 41, 253 N.E.2d 385.) We do, however, believe that the remarks of the prosecutor were a fair inference based on the facts and circumstances in the record and were not so inflammatory or prejudicial as to constitute reversible error.

For the reasons stated, the judgment of the circuit court is affirmed.

Judgment affirmed.

ADESKO, P. J., and DIERINGER, J., concur.


author: Mr. PRESIDING JUSTICE ADESKO

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Clarence W. Walker, Defendant-Appellant.
    (No. 54138;
    First District
    — November 17, 1971.

      Gerald W. Getty, Public Defender, of Chicago, (George L. Lincoln and James J. Doherty, Assistant Public Defenders, of counsel,) for appellant.

      Edward V. Hanrahan, State’s Attorney, of Chicago, (Robert A. Novelle and Michael J. Goldstein, Assistant State’s Attorneys, of counsel,) for the People.
   Mr. PRESIDING JUSTICE ADESKO

delivered the opinion of the court:

Defendant, Clarence W. Walker, was charged with the crimes of rape, armed robbery, and attempt murder. He was convicted of each offense in a bench trial and was sentenced to serve consecutive terms of 100 to 150 years for rape, 100 to 150 years for armed robbery, and 19 to 20 years for attempt murder. Defendant appeals his convictions and presents the following issues for our review.

“(1) Whether the State withheld evidence favorable to the accused;
(2) Whether the State introduced statements in violation of defendant’s Fifth Amendment rights;
(3) Whether the State obtained evidence by an illegal search and seizure; |
(4) Whether the defendant received effective assistance of counsel; and
(5) Whether the defendant could lawfully be required to serve consecutive sentences.”

The evidence in this case indicates that on the morning of July 1, 1966, the complaining witness, Mrs. Lora Gibson, was at Chicago Police Headquarters to file a complaint against her estranged husband. When Mrs. Gibson was informed that she would have to file her action at a district police station, located on the south side of Chicago, the defendant approached her, accompanied by Vanessa Harper, and offered to drive her to the south side. Mrs. Gibson accepted and after dropping off Vanessa Harper, the defendant continued with Mrs. Gibson to the south side station but was unable to find a judge there. The defendant then told Mrs. Gibson that he knew a judge in Skokie, Illinois and volunteered to drive her there so that she could get the warrant for the arrest of her husband. Mrs. Gibson agreed to make the trip.

Once they had entered the suburbs, however, the defendant drove to a forest preserve area and pulled off the road. The complainant testified that defendant told her to get out of the car, grabbed her wrist, pulled her from the vehicle and dragged her into the woods. Placing his arm around the complainant’s neck and his hand over her mouth, defendant told Mrs. Gibson that he was a maniac. Defendant then pulled off Mrs. Gibson’s skirt and undergarments and forced her to submit to an act of sexual intercourse, threatening to kill her, “* * # and to leave (her) body out there to rot * * *” if she did not obey.

Mrs. Gibson further testified that after completing the act of intercourse, tire defendant kicked her and struck her on the side of the head with a Coca Cola bottle, knocking her unconscious. When she regained consciousness, the defendant was raping her again. When he had finished, he took a razor blade and slit the complainant’s throat from ear to ear. He also slashed her abdomen with the blade. The defendant then pulled off a ring from the complainant’s finger and pulled her watch from her wrist. Defendant took these articles along with a ten-dollar bill from the complainant’s shoe and left fire scene.

After crawling through the woods for three days and two nights, Mrs. Gibson was finally found beside a road adjacent to the wooded area, by Officer James Dutton of the Hoffman Estates Police Department. Mrs. Gibson was hospitalized and recovered from her wounds.

On September 20,1966, the complainant was walking on the south side of Chicago when she noticed the defendant crossing a street. The complainant recognized him as her assailant and summoned the police who arrested the defendant.

Lora Gibsons testimony concerning her injuries was corroborated by the medical evidence of two physicians who testified that her neck and windpipe had been cut and that she had multiple lacerations about the face, neck, abdomen and lower legs as well as a laceration of the vagina which would have to have been made by an entry into the vagina.

Vannessa Harper testified that on the date in question the defendant met Mrs. Gibson at Police Headquarters. The three then drove to the south side where the defendant dropped Vanessa Harper off and proceeded on alone with Mrs. Gibson.

The arresting officers, Breckenridge, Lett and Jones, each testified that during questioning, the defendant denied any knowledge of the complainant. He also denied driving the auto which the complainant described. When he was told that the complainant had identified him as her assailant, however, the defendant admitted meeting Mrs. Gibson and he also admitted possessing an auto of the type described by the complainant.

In support of an alibi defense, defendant’s wife testified she was with the defendant in Toledo, Ohio from June 29th to July 5th. She also testified that she and defendant were stopped by an Officer Hunt for a traffic offense in Toledo, Ohio and that she knew Officer Hunt personally.

Defendant testified on his own behalf that he and his wife had been in Toledo, Ohio during the time Mrs. Gibson had been attacked. He related, however, that his wife had lied about the date that the police officer had stopped them, stating that the incident occurred on July 2nd or 3rd.

The State in rebuttal introduced a Cook County Hospital referral slip which established that on July 3rd, when defendant’s wife was supposedly in Ohio with the defendant, she was in fact receiving treatment in Chicago. The State also presented Officer Charles Hunt of the Toledo Police Department who stated that he did not know either the defendant or his wife; that he did not recall ever stopping them for a traffic violation and that he could find no record of such an incident in either his files or those of the Toledo Police Department.

Defendant’s first contention on appeal is that he was improperly denied access to a police report containing complainant’s initial statement to the police. It appears the complainant had initially given a different account of how she had come to be with the defendant in his auto than what she later testified to and the defense desired this for impeachment purposes. The defense is entitled to the production of substantially ver- I batim statements by witnesses for impeachment purposes where no privilege exists and where the relevancy and competency of a statement or report has been established. (People v. Wolff, 19 Ill.2d 318.) This rule includes use of statements by witnesses as recorded in police reports People v. Moses, 11 1Ill.2d 84; People v. Green, (Ill.App.), 272 N.E.2d 721.

The State argued here that they were not bound to produce any such statement as the defense had failed to prove that the police had even written down complainant’s statement, let alone that it was a substantially verbatim account. An examination of the record, however, reveals that at trial the State never denied the existence of such a statement, arguing only that such statements were not verbatim. This court has held that it is not the purview of the prosecutor to determine whether or not a statement is substantially verbatim, but rather it is the province of the | comt. People v. Williams, 72 Ill.App.2d 96; People v. Beard, 67 Ill.App.2d 83.

In People v. Marshall, 112 Ill.App.2d 426, this court expressed the rule that when the State asserts that a statement is not substantially verbatim, I the trial court should not accept his assertion without inspecting the document. The court said at page 429:

“The trial judge denied the production of the requested statement solely upon the State’s representation to him in an adversary proceeding that what was sought was merely a summary sheet * * In view of the fact that the trial judge never viewed the purported summary sheet and in view of the fact that the statement does not appear in the record before us, we find it impossible to blindly accept such a premise. * * * When an accused for impeachment purposes demands production of a witness’ statement in the possession of the People and when the prosecution claims the statement is privileged, irrelevant or incompetent, the trial court is to examine the statement to determine if such claims are justified. [Citing cases.]”

In the instant case, the trial court should have examined the police report to determine that it did not contain a substantially verbatim recital of the complainant’s testimony before it could deny defendant’s access to it. However, like Marshall, upon a review of the record, we fail to see how the aforementioned error prejudiced the defendant even if the statement had been verbatim. In the case at bar, the complainant on direct examination by the State fully admitted what she initially told the police, and that her initial story concerning how she met the defendant varied from her later testimony. The trier of fact was thus fully apprised of any inconsistency in the witness’ testimony and the lack of a statement of her testimony for impeachment purposes could thus not prejudice the defendant.

Defendant next contends that the State violated his Fifth Amendment rights by improperly introducing evidence in violation of the United States Supreme Court’s decision in Miranda v. Arizona, 384 U.S. 436. Defendant maintains that he received insufficient warning of his rights at his initial interrogation and that he was improperly questioned after indicating his desire to remain silent.

The evidence indicates that after his arrest by Chicago policemen, defendant said that he could read English and was directed to read a poster containing his civil rights. These rights were then read aloud to the defendant and it was further explained that he could remain mute if he so chose, but that if he spoke, what he said would be used against him in court; that he didn’t have to make any statement one way or the other without counsel, and if he didn’t have counsel or could not afford an attorney, one would be provided for him. The defendant responded “I know that.” Defendant was then told of the accusation the complainant had made against him and was asked what he had to say about it. The defendant replied, “I have nothing to say about it. I do not know the lady. I have never seen her before.” He was then asked about the car complainant described her assailant as driving and defendant replied that he didn’t own such a car. A short time after answering those questions for the Chicago Police, defendant was interrogated again by a Cook County Sheriff’s policeman, who again warned the defendant of his rights. During questioning, defendant admitted having seen the complainant on the day of the crime and admitted owning the type of car used in the crime.

Defendant contends that the first set of warnings he received from the Chicago policemen was defective as not being in the precise language of Miranda. Defendant concedes the second warnings from the Sheriff’s policeman were perfect, but contends that allowing evidence of his first testimony even though it was exculpatory prejudices him by demonstrating a disparity in his answers which adversely affects his credibility. Miranda requires that a suspect be warned of his right to remain silent. 384 U.S. at page 467; that anything said can be used against him, 384 U.S. at page 469; and that he has the right to consult an attorney, to have an attorney present during interrogation, and to have an attorney appointed if he cannot afford one. (384 U.S. 471, 473.) However, the words of Miranda do not constitute a ritualistic formula which must be uttered without deviation to be effective. Rather words which convey the substance of the warnings and the required information are sufficient. (People v. Landgham, 122 Ill.App.2d 9; United States v. Vanterpool, 394 F.2d 697, 8, 9 (2d Cir.).) In People v. Bosveld, 109 Ill.App.2d 317, this court quoted approvingly from Coyote v. United States, 380 F.2d 305, 308 (10th Cir.):

“Surely Miranda is not a ritual of words to be recited by rote according to didactic niceties. What Miranda does require is meaningful advice to the unlettered and unlearned in language which he can comprehend and on which he can knowingly act. We will not indulge semantical debates between counsel over the particular words used to inform an individual of his rights. The crucial test is whether the words in the context used, considering the age, background and intelligence of the individual being interrogated, impart a clear, understandable warning of all his rights.”

Upon careful examination of the complete record, we find that the warnings given to defendant were adequate to inform him of his rights and that he knowingly waived those rights before speaking.

Defendant also asks that we find this interrogation improperly continued after he had indicated a refusal to answer any questions. Defendant contends that his response to the inquiry as to what he had to say about the incident, “I have nothing to say about it”, indicated a desire to terminate all questioning. The record does not support this contention. Defendant’s language was merely an answer to a question posed. Defendant, with no further questions being asked then volunteered that he didn’t know the complainant and that he had never seen her before. He continued to respond to questions when they were asked and in no way manifested any desire to terminate the questioning. We therefore find that the State did not deny defendant his rights by continuing to question him after he indicated a desire to answer no more questions.

The defendant’s thud contention on appeal is that the Cook County Hospital referral slip introduced to impeach his alibi witness was the product of an illegal search and seizure and deprived him of this Fourth Amendment rights. We find it unnecessary to decide the validity of the search as the evidence is clear that the referral slip was not the property of the defendant, nor did the vehicle the slip was found in belong to the defendant. Fourth Amendment rights are personal in nature and cannot be vicariously asserted. (Simmons v. United States, 390 U.S. 377; Jones v. United States, 362 U.S. 257.) In Alderman v. United States, 394 U.S. 165, the United States Supreme Court held at page 173:

“The rule is * * to qualify as a “person aggrieved by an unlawful search and seizure” one must have been a victim of a search or seizure, one against whom the search was directed, as distinguished from one who claims prejudice only through the use of evidence gathered as a consequence of a search or seizure directed at someone else * * *,
‘Ordinarily, then, it is entirely proper to require of one who seeks to challenge the legality of a search as the basis for suppressing relevant evidence that he allege, and if the allegation be disputed that he establish, that he himself was the victim of an invasion of privacy.’ ”

In the instant case, defendant cannot establish that he was the victim of an illegal search and his claim of error in admitting the referral slip must be dismissed.

Defendant next contends that he was denied effective assistance of counsel. To warrant a reversal because of the incompetence of court appointed counsel, it must clearly appear not only that counsel performed his trial duties in an incompetent manner, but also that defendant was prejudiced thereby. People v. Bernatowicz, 35 Ill.2d 192; People v. Yarbrough, 97 Ill.App.2d 457.

Defendant on appeal criticizes his attorney’s failure to move to suppress either defendant’s statements to the police or the hospital referral slip. But, as we have already determined, neither the statements nor the referral slip were obtained in derrogation of any of the defendant’s constitutional rights. Thus counsel’s failure to move to suppress did not prejudice the defendant.

Defendant further contends that defense counsel impeached his own witness when on direct examination he elicited from an alibi witness information concerning her prior convictions for non-infamous crimes. This could have been an intentional trial tactic to demonstrate the absolute candor of his alibi witness. Similarly, the few other instances of incompetence alleged by defendant could be explained as reasonable trial tactics. It is well settled that appeffate review of trial counsel’s competence does not extend to those areas involving the exercise of judgment, discretion, or trial tactics. (People v. Martin, 44 Ill.2d 489; People v. Wesley, 30 Ill.2d 131.) We therefore find that defendant has failed to demonstrate any incompetence by his trial counsel.

Defendant’s final contention, on appeal, is that he cannot lawfully be required to serve consecutive sentences for his crimes as they arose out of a single transaction. Defendant’s contention is without merit. The evidence at trial demonstrated that after threatening complainant with death, the defendant raped her twice, then produced a razor blade and slit the complainant’s throat and abdomen. When this brutal act was over, defendant proceeded to take complainant’s money, ring and wrist watch and left. We find that the conduct in the instant case was not a single transaction but three separate acts. While we recognize that the acts of defendant were not wholly unrelated, nonetheless, the three offenses, involving three distinct mental states did not result from the same “conduct” as that term is defined and used in sections 2 — 4 and 1 — 7(m) of the Criminal Code. (Ill. Rev. Stat. 1967, ch. 38, pars. 2 — 4 and 1 — 7.) (See People v. Bridges, 123 Ill.App.2d 58.) Where two or more offenses arise from separate though closely related acts, separate sentences, either consecutive or concurrent, are permitted. (Ill. Rev. Stat. 1967, ch. 38, par. 1 — 7(m) ); People v. Raby, 40 Ill.2d 392.) In the case at bar the court sentenced defendant to serve consecutive terms and it is clear from die record that the court intended each sentence to be served in the order announced.

For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed.

Judgment affirmed.

BURMAN and DIERINGER, JJ., concur.


text:
    Ben Mattion et al., Plaintiffs-Appellees, v. Trustees of Schools of Township 41, Defendants-Appellants.
    (No. 54706;
    First District
    — November 17, 1971.

      Ancel, Stonesifer & Clink, of Chicago, for appeHants.
    Bernstein, Golan & Yalowitz and L. Louis Karton, of Chicago, for appeHees.
   Mr. PRESIDING JUSTICE ADESKO

deHvered the opinion of the court:

This is an appeal by the defendants, Trastees of Schools of Township 41 North Range 12, a corporation, and Board of Education Community Consolidated School District No. 64, from the decree entered by the circuit court of Cook County quieting title to the 5 acre tract in question in the plaintiffs, Ben and Dina Mattion. On appeal the defendants contend:

“(1) That they acquired the unconditional warranty deed as part of negotiated agreement; and
(2) That they acquired a fee simple record title, not a conditional or determinable fee subject to defeasance, termination and reverter.”

The facts are as follows:

On June 8, 1956, the plaintiffs purchased a twenty-acre tract, which included the 5 acres in question, from Morris and Lillian Kand for $205,000, or about $10,000 an acre. The subject property was vacant and the plaintiffs had spent $39,000 on improvements to said property.

On August 21, 1957, the defendant Board of Education adopted a resolution to acquire the subject 5 acre tract plus 3 additional acres for school site purposes. On August 23, 1957, the attorney for the Board sent the plaintiffs an offer of $52,000 for free and clear title to the 8 acre parcel. No reply to this offer was received and on September 13, 1957, the trustees of the school district filed a suit in condemnation. The plaintiffs filed an appearance in the condemnation suit and on March 24, 1958, filed a cross-petition seeking damages to the remainder of the plaintiffs’ tract of land in the event that the condemnation proceeded against the subject property.

Subsequent to the above filings, several meetings were held between the parties and the defendants agreed to pay $10,000 per acre for 5 acres of the plaintiffs’ land.

On October 15, 1958, plaintiffs sold approximately 10 acres of the twenty-acre tract to Norwood Land Company for approximately $15,000 per acre. The contract was entered into and consummated by the plaintiffs during the pendency of said condemnation suit and prior to the settlement thereof. On October 15, 1958, the Board of Education adopted a resolution whereby it accepted the above agreement to purchase the plaintiffs’ land. On December 10, 1958, the plaintiffs executed and delivered to the defendants a warranty deed conveying the 5 acre parcel to the trustees of the School District for the use and benefit of the Board of Education. The plaintiffs received $50,000. The Norwood Land Company had offered to purchase the 5 acre parcel in question for approximately $15,000 per acre.

For a period of over 5 years after the purchase of the 5 acre parcel, the Board of Education continually considered said parcel as a school site, however, due to population trends and the construction of public and parochial schools within the district, the Board, on March 18, 1964, by resolution, declared that said 5 acre parcel is unnecessary for the uses of the school district and that the trustees are authorized and directed to sell said real estate.

The plaintiffs in their complaint allege that the defendants never used and never intended to use the 5 acre tract as a school site. The plaintiffs alleged that they offered the defendants $50,000 for the return of the said property since the defendants had acquired fee simple title to said property subject to the condition subsequent that said property would be used as a school site and upon abandonment of said property for such use, the real estate would revert to the plaintiffs. They allege that the defendants wrongfully used their power of eminent domain to coerce the plaintiffs to execute and deliver the warranty deed to the 5 acre tract. Finally, the plaintiffs allege that the deed did not contain the provisions relating to the condition subsequent to the reverter and therefore the deed should be reformed to include the true intention of the parties.

On April 3, 1964, plaintiffs commenced this action and on May 24, 1965, this case was referred to a Master in Chancery. The Master in Chancery found that the acquisition and subsequent intended disposition of said property by the trustees was according to the statutes of the State of Illinois and that the trustees are holders of a fee simple title to said property. The trial court sustained the exceptions to the Masters report and entered a decree in favor of the plaintiffs.

The defendants’ first contention on appeal is that they acquired the unconditional warranty deed as part of a negotiated agreement. Ordinarily the use or threatened use of civil proceedings to enforce a claim made in good faith does not constitute duress vitiating a contract made by the person sued or threatened. I.L.P. Contracts, sec. 127.

The cases cited by the plaintiff are not in point. In Slade v. Slade, 310 Ill.App. 77, the plaintiff was appealing from an order dismissing her complaint. The plaintiff in said case was seventy years old and at the mercy of the other stockholder in her late husband’s corporation. In Stoltz v. Stoltz, 393 Ill. 433, the Illinois Supreme Court found that there was no evidence in the record to support his claim of duress.

The Master in Chancery heard the testimony of the witnesses and observed their demeanor on the stand and therefore was in the best position to determine the credibility of each witness and the weight to be given to his testimony. The Master recommended that a decree in favor of the defendants be entered in accordance with the findings of facts and conclusions of law.

The plaintiffs had engaged in the business of building and sub-dividing for over thirty years. Attorneys represented the plaintiffs in then-dealings with the defendants. The plaintiffs had the right to go to court and challenge the condemnation proceeding.

The agreement was reached as a result of bargaining. The defendants increased their original offer from $6,500 to $10,000 per acre and reduced the number of acres to be taken from 8 to 5 acres. The land was appraised at $7,000 an acre. The use of the 5 acres as a school site would increase the value of the residences which plaintiffs’ had planned to build on their remaining acreage. The 5 acre tract was acquired at a fair price. The land in question was not acquired through condemnation proceedings. The plaintiffs were not coerced into selling the 5 acre tract.

The second and final contention of the defendants was that they acquired a fee simple title to the 5 acre tract. The plaintiffs contend that the title acquired by the defendants was a conditional or determinable fee subject to defeasance, termination and reverter upon abandonment by the defendants. The Illinois Statute governs the question whether the defendants received fee simple title to the 5 acre tract:

“The trustees of schools may receive any gift, grant, donation or devise made for the use of any school or library or for any other school purpose within their jurisdiction. They are invested in their corporate capacity with the title of all school buildings and school sites.” (111. Rev. Stat. 1957, ch. 122, par. 4 — 21.)
“When in the opinion of the school board, a school site, building or site with building thereon, or any other real estate of the district, has become unnecessary or unsuitable or inconvenient for a school, or unnecessary for the uses of this district, * * * real estate of the district not acquired by referendum and not having a school building thereon, * * * may be sold by the school board without a referendum approving such sale. * « * [T]he school board shall forthwith notify the trustees of schools or other school officials having legal title to such land of the terms upon which they desire the property to be sold.
# 6 *
The deed of conveyance shall be executed by the president and clerk or secretary, and the proceeds paid to the school treasurer for the benefit of the district * * (111. Rev. Stat. 1957, ch. 122, par. 4 — 22.)

The defendants have substantial discretion to take land sufficient not only for present needs but for further requirements which they can and should anticipate. The school district was anticipating population increases when it purchased the school site and periodically considered the need for a school on the site. Finally it decided the school site was not needed because of the increase of neighboring schools.

The defendants did not acquire the 5 acre tract through eminent domain. Many cases cited by the plaintiffs dealt with school sites which were obtained by condemnation. (Miller v. Com. of Lincoln Park, 278 Ill. 400; Kelly, et al. v. Bowman, et al., 104 F.Supp. 973.) Other cases cited by the plaintiffs involved situations where the original owner retained record title to the school site and continued paying taxes on the property. Miner v. Yantis, 410 Ill. 401; Superior Oil Co. v. Harsh, 39 F.Supp. 467.

In Kendrick v. City of St. Paul, et al., 213 Minn. 283, the defendant city did not claim to have received more than an easement by the condemnation proceedings, but claimed a fee simple title under the warranty deed it received. In the above case the court held that the conveyance was in the form of a warranty deed without limitation or condition; and, in the absence of any language indicating that the conveyance of an easement only was intended, we cannot so construe the deed.

The plaintiffs could have bargained for a reverter clause in the deed. The Illinois statutes give the school boards authority to obtain fee simple title to school sites and to later sell the sites when they are no longer necessary. The proceeds of the sale go to the school treasurer for the benefit of the school district.

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

Judgment reversed.

BURMAN, and DIERINGER, JJ., concur.


text:
    La Salle National Bank et al., Plaintiffs-Appellees, v. Village of Harwood Heights, Defendant-Appellant.
    (No. 54731;
    First District
    — November 17, 1971.

      Ancel, Stonesifer & Clink, of Chicago, (Louis Ancel, and Howard J. Siegel, of counsel,) for appellant.
    Maurice J. Nathanson, and Kirkland, Ellis, Hodson, Chaffetz & Masters, all of Chicago, (Frank L. Winter and Edward W. Gray, of counsel,) for appellee.
   Mr. JUSTICE BURMAN

delivered the opinion of the court:

This is an appeal by the defendant, Village of Harwood Heights, from a judgment of the circuit court which (1) declared the Village’s zoning ordinance void as it applied to the plaintiffs’ property, (2) enjoined the Village from interferring with the cons traction of a proposed National Food Store on the plaintiffs’ land, (3) ordered the Village to remove a sidewalk curb, and part of Narragansett Avenue from plaintiffs’ land, and (4) enjoined collection of the unpaid portions of a special assessment levied to recover the cost of widening Narragansett Avenue and installing a sidewalk. No questions are raised on the pleadings.

The subject property is located in the Village of Harwood Heights and consists of two adjacent parcels of land which in combination form a rectangular tract of land. The total area is approximately 100,000 square feet of which Parcel One has about 20,000 square feet, and is located in the northwest portion of the subject property. It is held in a land trust by the La Salle National Bank for the benefit of the National Tea Company. Parcel Two consists of the remaining portion and is owned by Mar-Rue, Inc., and leased to National Tea.

The combined premises have a basic frontage of approximately 275 feet along Gunnison Street, its northern boundary, and approximately 365 feet along both Nagle Avenue and Narragansett Avenue, its western and eastern boundaries, respectively. Both Gunnison and Nagle are section-line streets, and the flow of traffic at the intersection of the two is regulated by traffic signals.

To the north of the subject parcel, across Gunnison, is a row of twelve one-story brick retail stores and offices. North of these buildings there are single-family dwellings that extend for a distance of about four blocks. To the west, across Nagle, is the Ridgemoor Country Club golf course. To the east, across Narragansett, are single-family residences, with the exception of four or five two-family residences, which extend for many blocks. Immediately south of the subject site are single-family homes.

The record discloses that National Tea purchased Parcel One in 1967 for $125,000. At that time it was zoned commercial. There was a tavern and an ice cream parlor on Parcel One until the early 1960’s when those buildings were demolished. At the time the instant suit was filed, it was still zoned for commercial use, but two months after the commencement of this action, the Village rezoned this parcel to residential. The remaining larger portion, referred to as Parcel Two, was purchased by Mar-Rue, Inc., in April of 1966 for $185,000 and leased to National Tea. This latter portion is and has always been zoned for single-family residential development and has remained unimproved.

In the complaint filed on June 10, 1968, plaintiffs seek to have the entire subject premises zoned commercial in order for National Tea to erect thereon a retail food store with off-street parking. They contend that this is the highest and best use for the subject tracts, that there is a great community need for the food store, and that its presence would not seriously affect either the value of the surrounding property or the health, welfare and safety of the neighboring residents. The defendant Village, on the other hand, contends that plaintiffs have not overcome the presumption of validity which attaches to the legislative act, that the existing zoning is in conformity with the character of the surrounding property, that the premises can be put to the use for which it is zoned, that the fact that the property may be more valuable if zoned for uses other than those permitted under the existing zoning ordinance is not decisive and that plaintiffs’ purchase of the property in the face of tire existing zoning restriction thereon is a factor to be considered as well as the neighborhood property owners’ reliance on the zoning of the sub- | ject site.

The trial court found that: i

“From the evidence presented to the court relative to the character of the general area in which plaintiffs’ premises are located, the existing use of land in said area, the fact that the above described property is surrounded on three sides by sheets, two of which are section Hne traffic arteries, the fact that the evidence clearly indicates that the highest and best use of the above described property is for a business use, such as that proposed, and that the demand and value of plaintiffs’ premises, if improved as proposed, are substantiaUy greater than as restricted by the zoning ordinance of the VILLAGE OF HARWOOD HEIGHTS, and that the adverse effect on neighboring properties, if any, would be small, and that the gain to the public from the development and existence of such use would be great, * * * it would be unreasonable to require the plaintiffs to utilize their premises aforesaid as restricted by the existing zoning ordinance of the VILLAGE OF HARWOOD HEIGHTS.”

The court further found that the public health, safety, comfort and welfare did not require the restriction.

The principles which must be apphed in determining whether a zoning ordinance is void as apphed to a specific piece of property are weH established. The zoning ordinance, as a legislative determination of the restrictions which may reasonably be placed for the public good upon the use of a parcel of land, is presumptively valid, and one who seeks to chaHenge the ordinance as apphed to a specific parcel must overcome this presumption of validity by clear and convincing evidence that the ordinance is unreasonable and unrelated to the public health, safety and welfare. (Urann v. Village of Hinsdale, 30 Ill.2d 170, 195 N.E.2d 643; Bennett v. City of Chicago, 24 Ill.2d 270, 181 N.E.2d 96.) The basic factors which must be considered in determining whether the ordinance as applied is unreasonable are (1) the existing uses and zoning of nearby property, (2) the reduction in property value resulting from the particular zoning restriction, (3) the extent to which the destruction of property values of the site promotes the general health, safety and welfare of the public, (4) the relative gain to the public as compared to the hardship imposed upon the individual property owner, (5) the suitability of the particular property for the zoned purposes, (6) the length of time the property has been vacant, as zoned, considered in the context of land development in the area where the property is located. See Exchange Nat. Bk. v. Cook County, 25 Ill.2d 434, 185 N.E.2d 250.

It is well settled that one who attacks the validity of a zoning ordinance has the burden of overcoming the present plan of legislative validity by clear and convincing evidence, and when there is room for a legitimate difference of opinion concerning the reasonableness of a zoning ordinance, the determination of the legislative body will not be disturbed by the courts. (Exchange Nat. Bk. v. Cook County, 25 Ill.2d 434, 185 N.E.2d 250.) Nevertheless, the fact that conflicting testimony has been produced from lay and expert witnesses does not necessarily render the plaintiffs’ evidence unbelievable or require a finding that the reasonableness of the ordinance is fairly debatable. (La Salle Nat. Bank v. County of Cook, 12 Ill.2d 40, 145 N.E.2d 65.) In cases of this type, it is natural for differences of opinion to exist, but it is for the court to determine whether those differences are reasonable and justifiable. (Myers v. City of Elmhurst, 12 Ill.2d 537, 147 N.E.2d 300.) No single factor is controlling, however, and each case must be judged on its own facts and circumstances. LaSalle Nat. Bank v. County of Cook, 12 Ill.2d 40, 145 N.E.2d 65; Peo. ex rel. Larsen & Co., Inc. v. Chicago, 24 Ill.2d 15, 179 N.E.2d 676.

The defendant Village first contends that the zoning of the subject site for single-family residences is in conformity with the existing uses of zoning of the surrounding area and the proposal by plaintiffs to use the site for commercial purposes would be out of conformity with the existing uses. Great reliance is placed on Elmhurst Nat. Bk. v. City of Chicago, 22 Ill.2d 396, 176 N.E.2d 771, where the plaintiffs proposed construction of a supermarket. We note that in Elmhurst a factor that was considered was that there was no commercial use in the entire block in which the subject property was located and that the subject site did not face any such commercial use. The facts in the instant case are sharply different. Here, a portion of plaintiffs’ property was zoned commercial at the time it was purchased and when the suit was commenced. The entire block across Gunnison, facing the northern boundary of plaintiffs’ property, is devoted to commercial uses. The premises in question are uniquely surrounded by three streets, two of which have heavy traffic. The golf course across Nagle Avenue, although classified residential, can be considered quasi-public property.

The Village next contends that purchasers who acquire property in the face of existing zoning restrictions should not be heard to complain that the property would increase in value if the restriction was removed. We agree that the purchase of the larger portion by plaintiffs in the face of the existing zoning ordinance is a factor to be considered. (Treadway v. City of Rockford, 28 Ill.2d 370, 192 N.E.2d 351.) This does not mean, however, that a purchaser of property upon which a restriction had previously been imposed by a zoning ordinance may not attack the validity of such restriction. (Trust Co. of Chicago v. City of Chicago, 408 Ill. 91, 96 N.E.2d 499.) As we stated, Parcel One of the subject property had continuously been zoned commercial before the suit was commenced. John McNamara, a real estate and appraisal expert, testified that National Tea paid $6 per square foot for that parcel, a price which he said was almost three times the going rate for property zoned single-family residential. It is undisputed that die value of the subject plot for business purposes far exceed its value for residential development. We hasten to agree with defendant that this fact is not decisive as it exists in nearly every case where the intensity with which property may be used is restricted by zoning laws. (Liberty Nat. Bank v. City of Chicago, 10 Ill.2d 137, 139 N.E.2d 225.) What is decisive, however, is that the restriction on plaintiff’s use of their property is not required for the benefit of the public welfare. As the Supreme Court said in La Salle Nat. Bank v. County of Cook, 12 Ill.2d 40, 45 — 46, 145 N.E.2d 65,

“[i]t is not the mere loss in value alone that is significant, but the fact that the public welfare does not require the restriction and resulting loss. When it is shown that no reasonable basis of public welfare requires the limitation or restriction and resulting loss, the ordinance fails and the presumption of validity is dissipated. (Krom v. City of Elmhurst, 8 Ill.2d 104.) The law does not require that the subject property be totally unsuitable for the purpose classified but it is sufficient that a substantial decrease in value results from a classification bearing no substantial relation to the public welfare.”

There is, of course, conflict in the evidence on the question of detriment to the adjacent property owners from the proposed use. We think, however, that the evidence justified the trial court’s finding that the adverse effect, if any, would be small and that the public welfare does not require the existing restriction. There is no dispute that the area to the north of the subject site, which is already developed with retail establishments and offices, would not be adversely affected by the presence of a National Tea store. The same is true as to the area to the west, which is occupied by a golf course. As to the areas to the south and to the east across Narragansett Avenue, we think the evidence as to the plans for the proposed National Tea store indicates that the adverse effect, if any, on those properties would be small.

Wilson Thomas, director of real estate for National Tea, testified that the Company plans to erect a one-story building facing Gunnison on the southerly portion of the parcel. A buffer area to the south of the building will be landscaped to minimize any possible deleterious effect on the two single-family homes directly south of the subject premises. Entrances and exits will be confined to Gunnison and Nagle, both of which are already heavily traveled traffic arteries. The plans also indicate that all loading and unloading operations will be screened from view of the houses to the south and to the east and will be far removed from their properties. The area between the store and Gunnison will be used for off-street parking. There will be no access to the premises on Narragansett Avenue facing the residential homes to the east. Narragansett Avenue is a one-way street at this site, with traffic going to the north. Thus, any increase in traffic which could possibly affect the properties to the east of plaintiffs’ premises will be negligible.

Defendant further contends that the evidence shows that the subject site is suitable for the use for which it is zoned and that therefore the zoning ordinance ought to be sustained as applied to plaintiffs’ property. There is testimony that the subject property could be developed with single-family homes. While the suitability of the subject property for the zoned purpose is one of the factors which courts take into account, the law does not require the property to be totally unsuitable for such purpose to entitle the owner to relief. It is sufficient that a substantial decrease in value result from a classification bearing no substantial relation to the public welfare. (La Salle National Bank v. County of Cook, 12 Ill.2d 40, 48, 145 N.E.2d 65, 69-70.) Even George H. Kranenberg, plaintiffs’ witness who for many years has been an active planner and consultant in the Chicago area, when asked on cross-examination whether the property is suitable for single-family, responded with the truism that single-family homes can be built any place, and hence on the subject property.

It bears repeating that in the instant case, plaintiffs’ site is located at the intersection of two heavily traveled traffic arteries with controlled traffic lights and has the other unique characteristics already mentioned. It has remained unsubdivided and vacant while property surrounding it has been improved. The vacancy factor is defined in La Salle National Bank v. County of Cook, 12 Ill.2d 40, 47, 145 N.E.2d 65, 69, as ‘[t]he length of time the property has been vacant as zoned considered in the context of land development in the area in the vicinity of the subject property.” Even the Village’s expert witnesses disagree as to what is the highest and best use of the premises. Eugene W. Stunard, called by defendant as an expert real estate appraiser, testified on direct examination that in his opinion the highest and best use of the subject property is for multi-family residential. This use, he explained, would result in the highest net return to the owner and is consistent with the immediately adjacent properties. In the opinion of plaintiffs’ expert witnesses, the highest and best use for the subject property is for commercial use. They based this opinion on the location and size of the property and the character of the surrounding neighborhood as well as on the value of sale for commercial as opposed to residential development. A portion of the premises was zoned commercial at the time of the filing of the complaint. The premises is one of the few remaining undeveloped tracts of land in this area large enough for develop- i ment of a major food store with off-street parking. The value of the proprerty, if used for the proposed purpose, is far greater than of subdivided for single-family homes. After considering all of the evidence, the trial court found that the existing zoning restrictions unreasonably imposed undue hardship on the plaintiffs which was not required by the public health, safety or welfare. These findings are amply supported by the evidence and are not contrary to the manifest weight of the evidence and therefore will not be disturbed on review. National Bank v. County of Winnebago, 19 Ill.2d 487.

In addition to declaring the zoning ordinance void as applied to the subject property, the trial court found that the Village had usurped a portion of Parcel Two by installing a sidewalk, curb, and pavement, and ordered the Village to remove the improvements and enjoined the collection of a special assessment levied to defray the costs of the installation.

The Village contends that this granting of relief was erroneous (1) because no objection to the levy was raised at the proceedings to confirm the special assessment, (2) because Mar-Rue never acquired title to the land on which the improvements are located, and (3) because the right to use the land was granted to the public by a common law dedication.

The evidence introduced relating to this issue was at best sparse. Some time during the 1960’s the Village widened Narragansett Avenue, a north-south roadway, and installed a curb and sidewalk. These improvements extended along the entire 365-foot eastern boundary of Parcel Two and had a depth of 22 feet. No objection was raised at that time either to the installation of the curb, sidewalk, and additional pavement, or to the confirmation of the special assessment. On August 27, 1966, Parcel Two “except those parts thereof taken or used for public roads or highways” was conveyed to Mar-Rue, which acquired title with notice of the special assessment and with full knowledge of the existence of the sidewalk, curb, and street. Mar-Rue subsequently paid the special assessments as due and continued to permit the use of the sidewalk and roadway by the public. Almost two years after Mar-Rue’s acquisition of Parcel Two, this action was instituted on June 10, 1968. During all of this time taxes were paid on the 22-foot strip by the owner of Parcel Two.

The elements necessary to establish the existence of a common law dedication were set forth in Woodward v. Schultz, 15 Ill.2d 476, at 483, 155 N.E.2d 568, at 572-3:

“Two things are essential in order to establish a dedication of land to the use of the public by means of common-law dedication: The first is an intention on the part of the owner to dedicate, and the second is acceptance by the public. (McCue v. Serge, 385 Ill. 292.) The intent of the owner to dedicate may be established in various ways. Of course, a statement of intention in writing in the form of a conveyance, or a deed, or a grant, is the most obvious. Parol statements wherein the intention is manifest are sufficient. (Smith v. Ladage, 397 Ill. 336.) In fact, the intention to dedicate land to a public use is not unlike establishing intention in other matters and may be shown by any means whereby the intention of the dedicator can be established. (People v. Chicago and Northwestern Railroad, 239 Ill. 42; Ingraham v. Brown, 231 Ill. 356.) In the last cited case, we said ‘intention may be established in any conceivable way by which it may be made manifest that it was intended to set said strip aside as a public street.’ ”

The undisputed evidence shows that Mar-Rue’s predecessor in title acquiesced in the installation of the improvements and in the use of the land for public purposes, and that in conveying Parcel Two to Mar-Rue those portions of the property used by the public for roads or highways were specifically excluded. This acquiescence in use in combination with the exclusions in the deed evidence an intention to dedicate this 22-foot strip for the benefit of the public. Since the uncontroverted evidence demonstrates an intention to dedicate the use of the land by the public, it was error to order the Village to remove the sidewalk, curb, and pavement.

The granting of the injunction enjoining the collection of the special assessment was based upon the erroneous assumption that die public was using the land without right, and it was consequently improper. Moreover, special assessment proceedings are purely statutory. Section 9-2-65 of the Illinois Municipal Code (Ill. Rev. Stat. 1969, ch. 24, par. 9-2-65) provides with respect to the confirmation of special assessments that “The judgments of the court shall be final as to all the issues involved, and proceedings in the specified cause shall be subject to review by appeal as hereinafter provided and not otherwise.” It is well settled that a judgment confirming a special assessment is not subject to collateral attack except on a showing that the court lacked jurisdiction to enter it, and such lack of jurisdiction must appear on the face of the record. (Meehan v. Granite City Park District, 347 Ill. 364, 179 N.E. 831.) The record is void of any fact to sustain a direct attack upon the otherwise unchallenged jurisdiction of the court in the special assessment proceedings.

For the reasons stated the judgment of the circuit court declaring the zoning ordinance null and void as applied to the subject property and declaring the plaintiffs’ right to use the land as proposed is affirmed. The order directing the Village to remove improvements to Narragansett Avenue, enjoining collection of the special assessments, and requiring the removal of the special assessment as a lien against the subject property is reversed.

Affirmed in part and reversed in part.

ADESKO, P. J„ and DIERINGER, J„ concur-.


text:
    W. P. Bright et al., Plaintiffs-Appellees, v. Max E. Miller & Son, Inc. Defendant-Appellant.
    (No. 55155;
    First District
    — November 17, 1971.

      Arvey, Hodes & Mantynband, of Chicago, for appellant.
    Ettelson, O’Hagan, Ehrlich & Frankel, of Chicago, (Alfred J. Mitchell, Jr. and Robert F. Nix, of counsel,) for appellees.
   Mr. PRESIDING JUSTICE ADESKO

delivered the opinion of the court:

The plaintiffs, W. P. Bright, William G. Grant and Hilda Vanneman, brought an action as trustees of a dissolved Georgia corporation for a brokerage commission, arising out of the placement of a mortgage loan. The plaintiffs allege that the commission was due from the defendant, Max E. Miller & Son, Inc., for services performed by Wilbur MacArthur, the plaintiffs’ alleged agent. The defendant filed a counterclaim in which it alleged that MacArthur was negligent in furnishing complete information to the defendant, counter-plaintiff, and the lenders, the United Insurance Company of America as to the various circumstances surrounding tire borrowers and the real estate, which was to secure said loan, such as the changes in the character of the neighborhood, changes in adjoining real estate and inaccurate financial data. The counterclaim was based on the counter-plaintiff’s assumption that MacArthur was the plaintiffs’ agent.

The trial court sitting without a jury, entered a judgment in favor of the plaintiffs in the sum of $5,250. At the close of the counter-plaintiff’s case, the court sustained the counter-defendants’ motion for a directed verdict denying the counterclaim. The issue on review is whether MacArthur was an agent of the plaintiffs in his dealing with the defendant. A brief statement of the facts follows:

MacArthur was president of Etheridge and Vanneman, Inc. (hereinafter called E & V) from July 1960 to September 1962. MacArthur was also president of Commercial Trust Co., a subsidiary of E & V from July 1960 to February 1962. (E & V moved down the street to the Candler Building.)

In February 1962, MacArthur told Joseph Miller, the defendant’s president, that he had a client, Memorial Drive Properties, Inc., who desired to secure $350,000 for the construction of a bowling alley. On February 8, 1962, MacArthur and Miller had a telephone conversation wherein it was agreed that MacArthur was to receive a commission of IVz per cent of the $350,000 loaned. On February 9, 1962, MacArthur submitted a loan application to MiHer who directed correspondence to MacArthur at the Commercial Trust Co. The MacArthur phone number caUed by MiHer was the same as E & V’s phone number.

Later MacArthur got into a dispute with E & V, and on February 9, 1963, asked MiHer for his commission on the Memorial Properties, Inc. loan. In an attempt to obtain the commission from the defendant, MacArthur sent a letter of indemnification to MiHer.

The defendant contends that MacArthur was not the plaintiffs’ agent when MacArthur negotiated the loan for Memorial Drive Properties, Inc. The plaintiffs had the burden in the trial court to prove MacArthur’s agency.

No testimony was offered by the plaintiffs to explain why the two loan applications were executed by MacArthur as a principal or why MacArthur signed an indemnity agreement which reaffirmed in writing that he dealt with the defendant as a principal.

MiHer testified that he dealt with MacArthur in MacArthur’s capacity as a principal. Miller’s correspondence was addressed to MacArthur at Commercial Trust Co., but Commercial Trust Co. dealt only in smaU loans, not financing large projects such as the bowling aHey in this case.

The plaintiffs’ chief witness, W. P. Bright, testified that Donald Vanneman was involved in a real estate project in an individual capacity while he was a fuU time employee of E & V. It was not an uncommon practice for persons employed by the plaintiffs to deal in real estate and related matters in their individual capacity and to personally retain the commissions earned thereby. Bright’s testimony revealed his lack of first hand knowledge of MacArthur s relationship with E. & V and of the loan transaction with the defendant.

The record does not support the trial court’s determination that MacArthur was the plaintiffs’ agent when he dealt with the defendant. The finding of the trial court was contrary to the manifest weight of the evidence.

Since we find that MacArthur was not the plaintiffs’ agent in dealing with the defendant for the mortgage loan, we affirm the trial court’s order sustaining the counter-plaintiff’s motion for directed verdict denying the counterclaim.

The judgment of the trial court in favor of the plaintiffs is reversed and its order denying the defendant’s counterclaim is affirmed.

Affirmed in part and reversed in part.

STAMOS and DIERINGER, JJ., concur.


author: Mr. JUSTICE DIERINGER

text:
    Clanton Reese, Plaintiff-Appellant, v. Dorothy M. Reese, Defendant-Appellee.
    (No. 55610;
    First District
    — November 17, 1971.

      William T. Davies, of Elgin, for appellant.
    Amiel G. Hall, of Chicago, for appellee.
   Mr. JUSTICE DIERINGER

delivered the opinion of the court:

The plaintiff, Clanton Reese, filed a suit for divorce and the defendant, Dorothy Reese, filed a countersuit for separate maintenance. On May 2, 1967, a decree of separate maintenance was granted to Dorothy Reese, and since the entry of the decree fire plaintiff and defendant have lived apart.

On March 23,1970, Clanton Reese filed a petition to set aside the decree of separate maintenance or, in the alternative, to grant a divorce to either party, and on September 25, 1970, the petition was denied. The plaintiff appeals from that ruling. It is his contention he is being deprived of his right to life, liberty and the pursuit of happiness by a statute that is vague and indefinite; that he has been deprived of life, liberty and property without due process of law, has been a victim of involuntary servitude, and further maintains the uncertainty of such a decree amounts to cruel and inhuman punishment, all in violation of the United States Constitution Amendments 5, 8, 13, and 14, and the 1870 Illinois Constitution, Article II, Bill of Rights Numbers 1 and 2.

The plaintiff argues the intent of the Separate Maintenance Statute (Ill. Rev. Stat. 1967, ch. 68, par. 22) is solely to preserve the marital relation and to hold the way open for marital reconciliation. He suggests since he has lived apart from his wife for four years, there is no hope of reconciliation, and the purposes of the statute are not being served. His conclusion is that failure to have a time limit on a separate maintenance agreement renders the statute vague and uncertain and deprives him of his constitutional rights.

However, while one of tire purposes of the statute is to prevent a hasty divorce, another purpose is to provide for the support of a spouse who is not at fault and who does not choose to sue for divorce. (Schneider v. Schneider (1941), 312 Ill.App. 59.) As regrettable as this situation may be for the plaintiff, the State has an interest in maintaining the integrity and permanency of the marriage relation and has chosen to limit the reasons for which a divorce may be granted. That a state may do so is well established. A Nevada court summed up the historical development of legislative control of divorce in Worthington v. District Court (1914), 37 Nev. 212, as follows:

“As divorce is not among the inalienable rights of man or the ones granted by Magna Charta, the federal or state constitutions or the common law, and except at the will and subject to any restrictions imposed by the legislature, has never been recognized as one of the guaranteed privileges of the citizen, and as marriage is the most important of the domestic relations, and of highest concern to the state, it follows that the right to have the bonds of matrimony dissolved is limited to the causes and subject to the requirement prescribed by the statute. * * * Questions relating to the policy, wisdom, and expediency of the law are for the people’s representatives in the legislature assembled, and not for the courts to determine. It is the duty of the courts to interpret and enforce the statute in accordance with the intention of the law making body, unless it is clearly in conflict with some provisions of the organic law.”

People ex rel. Christiansen v. Connell (1954), 2 Ill.2d 332, contains language similar to the Nevada case, but also states:

“This, however, does not mean that because the origin of the right or privilege is legislative there are no constitutional restrictions on the type of legislation which may be enacted regulating the exercise of the right. Once the matter has been committed to the judiciary, the parties to such judicial proceedings are clearly entitled to the same constitutional safeguards as are parties to other proceedings. The fact that the legislature might entirely abolish the right of access to the courts for purposes of divorce and annulment does not imply the power to make the exercise of those rights conditional upon a surrender of constitutional guarantees. * * * The Supreme Court of the United States has frequently announced the rule that a state may not attach unconstitutional conditions to the exercise of a right even though the right itself exists entirely at the pleasure of the State.”

The Separate Maintenance Statute, however, is not a restriction or condition of the right of access to divorce since it may only be used by the party who is without fault, and in no way precludes the innocent party from seeking a divorce.

Therefore, since it has been frequently held there is a presumption in favor of the constitutionality of a legislative enactment (Davies Warehouse Co. v. Bowles, 321 U.S. 144; Chicago v. Ames (1937), 365 Ill. 529) to uphold the constitutionality of the Separate Maintenance Statute, it is sufficient to say it is not unreasonable in the light of legislative objectives and is within the province of legislative power. (People ex rel. Doty v. Connell (1956), 9 Ill.2d 390.) We find the plaintiff’s constitutional rights have not been violated.

Whether or not divorce or separate maintenance statutes are inadequate or inequitable, they can be corrected only by the legislature and not by judicial pronouncement. In Hilliard v. Hilliard (1960), 25 Ill.App.2d 468, the court faced a fact situation similar to the one at bar. In that case the court noted:

“Some cogent reasons are advanced in support of the husband’s thesis that a wife, who is being supported under a separation decree, should neither accept a husband’s proposals to resume married life or seek a divorce herself; or, if she fails to do either, he should be permitted to divorce her. * # * It is said to be unfair to allow a wife to retain indefinitely the unique status which a separate maintenance decree confers on her, while her husband, unable to free himself, is denied the advantages of marriage or the privileges of divorce. But it would also be unfair to compel a wife, who has kept her matrimonial vows, to either involuntarily condone her husband’s misdeeds or be placed in the position of the guilty party and have divorce thrust upon her. * * * Whether the prolonged separation of husband and wife under a separate maintenance decree is sociologically desirable is a problem for legislative determination, and the problem has been before our legislature many times. * * * We have no power under the statute to approve a divorce upon the thesis urged by the husband in this case. If the divorce or separate maintenance statutes are regarded as inadequate or inequitable they can be corrected only by the legislature and not by judicial pronouncement.”

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

Judgment affirmed.

ADESKO, P. J., and BURMAN, J., concur.