author:
Mr. JUSTICE SEIDENFELD
      Mr. JUSTICE ABRAHAMSON

text:
    C. B. Robinette et al., Plaintiffs-Appellees, v. The Department of Public Works and Buildings, Defendants-Appellants.
    (No. 71-145;
    Second District
    — November 24, 1971.

      Rehearing denied January 12, 1972.

      ABRAHAMSON, J., specially concurring:

      William J. Scott, Attorney General, of Chicago, (William P. Ryan and Frank S. Righeimer, Jr., Assistant Attorneys General, of counsel,) for appellants.
    Thomas W. McNamara, of Chicago, for appellees.
   Mr. JUSTICE SEIDENFELD

delivered tihe opinion of the court:

The American National Bank and Trust Company of Chicago, Trustee under Trust No. 18962 (also 18963), and C. B. Robinette and Rose R. Robinette, his wife as sole beneficiaries of the trusts, sued the Department of Public Works and Buildings of the State of Illinois and its Director, William Cellini. The complaint, as amended, sought revocation of the plat of dedication of land for a public highway. The plat of dedication contained the provision:

“Future ingress and egress to and from the remaining property of the grantor shall be by way of internal private roads to Kolberg Court and via Kolberg Court to Illinois Route 83.”

Plaintiffs allege that this was a condition which was breached when the road plans were changed to deny access to Route 83 from Kolberg Court and instead provided access via a frontage road to Riverside Drive, a distance of approximately 2600 feet from Kolberg Court.

The trial court found for the plaintiffs and ordered the defendants to file an election within 30 days to provide the access via Kolberg Court. The order further provided that in the event the election was not filed, the dedication would be revoked upon the deposit of the $35,000 purchase price. The defendants appealed directly to the Supreme Court claiming that a constitutional question was presented on the theory that the suit, although nominally against the Department of Public Works and its Director, in effect was one against the State of Illinois and, thus, barred by Article 4, Sec. 26 of the Illinois Constitution. The Illinois Supreme Court transferred the cause here, stating in its opinion in 48 Ill.2d 259 (1971), that the constitutional issue had been resolved adversely to defendants in People ex rel. Ring v. Lorenz (1966), 34 Ill.2d 445. The court concluded that it had no jurisdiction since no substantial constitutional question was involved.

Defendants first contend that plaintiffs should be barred from equitable relief by way of revocation, primarily because an adequate remedy at law exists to compel the Directors to institute proceedings under the Eminent Domain Act to ascertain possible damage to the remainder of their property allegedly caused by the change in plans. Shaw v. Lorenz (1969), 42 Ill.2d 246 is cited as authority. However, in Shaw there was no condition in tihe plat of dedication. Plaintiffs there sought to enjoin the Director of the Department of Public Works from closing a township road in contravention of a separate agreement to keep the road open which had been made at the time of the unconditional dedication. The court held that mandamus was an adequate remedy, precluding the equitable relief of an injunction.

The right to revoke a conditional deed was not involved in Shaw, but it was file issue in People ex rel. King v. Lorenz, supra. In King, plaintiffs, who were successors in title to the grantor, sought revocation of a dedication deed alleging the grantees’ nonperformance of an alleged condition of access to the remaining property. The plaintiffs there requested that Mandamus issue to compel the Director to include the land previously dedicated, on the issue of damage to the remainder for deprivation of access, in a pending condemnation suit for a frontage road which was made necessary by the change in plans by the state agency and which required additional property of the grantor. The court stated (page 448)

“The appellate court erred in refusing to allow revocation of the dedication deed.”

The court reasoned that an owner who makes a voluntary dedication of his property may annex conditions to his grant so long as they do not defeat it; and that if such conditions are not materially complied with, the dedication may be revoked.

Defendants have argued that the decision in Shaw has limited or qualified the holding in People ex rel. King and that both stand for the general proposition that when mandamus is available and is an adequate remedy at law there can be no equitable relief whether by way of injunction or revocation.

Defendants argue that there is no previous authority for the revocation of a deed to land acquired by the State, and that King has not decided the point because the actual result there was not revocation of the deed but the alternative relief of mandamus to include the granted property in a pending condemnation suit. However, as plaintiffs have pointed out, the inclusion of the dedicated property in the pending condemnation suit necessarily revoked the previous grant or there would have been no purpose in again condemning the same property. The clear import of King is that the availability of mandamus is not an adequate defense against the granting of a revocation of a voluntary plat of dedication for violation of a condition of access so as to bar the remedy of revocation under circumstances similar to this case.

Defendants next argue that the deed of dedication here is unconditional since access from Kolberg Court to Route 83 is not stated to be a condition of dedication, and the provision in question contains no words of promise, re-entry, or forfeiture. They argue that any conflict in meaning of words used in the deed is to be construed most strongly against the dedicator, (City of Chicago v. Hogberg (1905), 217 Ill. 180, 183; and Ely v. Brown (1900), 183 Ill. 575, 589, 590) and thus that the court should not read in a requirement for direct access into Route 83 from the then existing Kolberg Court, but should consider the access from an extension of Kolberg Court as a sufficient compliance with the provision. The plaintiffs respond that there is no significant difference between the provision in the deed in the King case and that here, and we agree. In both instances there is an explicit promise regarding future access to the highway from the grantors remaining land. In King, a change of approximately 10% of the distance here involved was deemed a material default in the promised access. King therefore is controlling.

Nor is the condition against public policy as defendants have argued. The Department of Public Works is not being compelled to provide access as originally planned in contravention of the admitted right of the State to control and regulate its ways. The Department is authorized to take a lesser interest than one in fee simple, i.e. a conditional dedication as here. Ill. Rev. Stat. 1969, ch. 121, par. 4 — 501. But it may not take the benefits of a dedication free of burdens which it has voluntarily assumed. Defendants have cited Village of Lake Bluff v. Dalitsch (1953), 415 Ill. 476 as supporting the argument that a condition which can be construed to limit the power of public authorities to regulate points of ingress and egress to freeways to provide a safe and efficient means of transportation would be void as against public policy and could be disregarded. Dalitsch may be distinguished on its facts. The case before us is, as we have previously noted, controlled by People ex rel. King v. Lorenz, supra.

Defendants have also cited Ill. Rev. Stat. 1969, ch. 109 as authority for the argument that the State acquired a fee simple title to the property in question and is therefore a necessary party. We do not agree. These statutes do not apply here since Par. 1(b)(6) of Ch. 109 specifically exempts conveyances of lands for public highways from its provisions. In making this argument the defendants, in effect, are seeking to raise the constitutional issue that the suit is in reality a suit against the State and barred by the constitution, and this question has been adversely decided in the opinion transferring the cause here (48 Ill.2d 259, supra).

Defendants have also argued that the plaintiffs had no standing to sue: The Robinettes because they are beneficiaries of a land trust and thus have an interest in personal property rather than in the realty (e.g. Chi. Fed. Sav. & Loan Assn. v. Cacciatore (1962), 25 Ill.2d 535, 543; In Re Application of County Treasurer (1969), 113 Ill.App.2d 50, 52) and the American National Bank & Trust Company of Chicago, Trustee, because it was not the grantor in the deed of dedication. Plaintiffs answer that the judgment order obviates this objection since it provides for the alternative of revesting title in the original grantor, the Elmhurst National Bank, as Trustee, under Trust No. 973; but that, in any event, the access provision was a covenant which benefited the land retained by the grantor and could therefore be enforced by the successor to the legal title. They argue that as the holders of both the beneficial interest and the legal title to the original grantors remaining property they have the necessary standing to sue.

Plaintiffs have conceded in their argument that the provision in the plat of dedication does not run with the property conveyed to the State agency. This is necessarily so because Kolberg Court adjoins the farthest end of the remaining property of the grantor and is some 1000 feet from the property dedicated. Plaintiffs argue that it is sufficient if the covenant be considered to run with the land which the grantor retained while defendants argue that such a covenant must benefit and run with the land dedicated. The plaintiffs argue inconsistently that the American National Bank, as Trustee, is the proper plaintiff to bring this action since the provision in the plat created a covenant running with the remaining land. But in seeking relief they argue that we should construe the provision as a condition subsequent. Both parties have cited Purvis v. Shuman (1916), 273 Ill. 286 in support of their opposing arguments. In Purois, the court stated, at page 286:

“If a covenant concerns the land and the enjoyment of it, its benefit or obligation passes with the ownership, but to have that effect the covenant must respect the thing granted or demised and the act to be done or permitted must concern the land or the estate conveyed.”

We must agree with defendants' position that the provision here (though not admitted to be a covenant) was a personal one which did not concern the land dedicated and which would not be enforceable by the successor to the grantor of the dedicated land. Plaintiffs have suggested that People ex rel. King, supra, is also authority that a successor land trustee has standing to enforce the access provision. But in King the construction of the frontage road was to take place on the land dedicated, while here the access was to be by a border road some 1000 feet away.

We believe that as a matter of fairness and equity the Department of Public Works should perform undertakings which it has voluntarily made and that if it does not do so, even if its refusal is based upon a commendable attention to changed views as to highway safety, it should be required to place the property owner in the same position he was in before the undertaking.

However, the legal and beneficial interest in the land taken is in the Elmhurst National Bank which has never been made a party to this suit. The Robinettes are beneficiaries under both the Elmhurst Bank Trust and the American National Bank Trusts, so that in practical effect the failure to join the Elmhurst Bank as a party might be said to be only a formal defect. But it is a defect which is fatal to the relief sought and awarded below.

Before an action can lie there must be a plaintiff with the requisite interest to bring the suit. (American Exchange Bank v. Mitchell (1913), 179 Ill.App. 612, 615; Village of LaGrange Park v. Jarecki (1927), 243 Ill.App. 290, 295.) We find no authority for adding an entirely new necessary party plaintiff on our own motion. As we have noted, the Robinettes, as beneficiaries of the land trusts, had no legal or beneficial interest in the land dedicated but only an interest in personalty. They were not requisite parties who could seek relief. Chicago Land Clear. Com. v. Darrow (1957), 12 Ill.2d 365, 371; Liberty Nat. Bank v. Kosterlitz (1946), 329 Ill.App. 244, 246, 247. And The American National Bank was not the party with the requisite interest to revoke the dedication made by a different grantor holding title to the adjoining property. (See Purvis v. Shuman, 273 Ill. 286, supra.) We have held previously that all persons having any substantial legal or beneficial interest in the subject must ordinarily be joined as parties. Fox Lake Hills Prop. Own. Ass’n v. Fox Lake Hills, Inc. (1970), 120 Ill.App.2d 139, 144, 145. The Elmhurst National Bank, as Trustee, is a necessary party to seek a revocation of the Plat of Dedication.

We, therefore, must reverse the judgment of the trial court, and remand for further proceedings consistent with this opinion.

Reversed and remanded, with directions.

MORAN, P. J., concurs.

Mr. JUSTICE ABRAHAMSON

specially concurring:

I concur with the majority opinion reversing the judgment of the trial court but I would also reverse the judgment on another ground.

I disagree with the conclusion of the majority that the language of the provision in the plat of dedication created a condition subsequent. In Newton v. Village of Glen Ellyn (1940), 374 Ill. 50, an ejectment action against the Village of Glen Ellyn for breach of an alleged condition in a deed, the court stated at page 54:

“One of the most important considerations in determining whether a clause is a condition subsequent or something else is the presence or absence of a clause providing for reentry by the grantor or his heirs, or forfeiture of the estate for a breach. (Koch v. Streuter, 232 Ill. 594; Rooks Creek Church v. First Church, 290 id. 133.)”

The court continued that such a clause is not indispensable, but will make certain what otherwise is left open to construction. Druecker v. McLaughlin (1908), 235 Ill. 367; Dunne v. Minsor (1924), 312 Ill. 333.

The absence of a clause providing for reentry and the lack of any of the language normally relied upon to create a condition subsequent makes it apparent that the intent of the parties was that the access provision would not operate as a condition subsequent. Newton v. Village of Glen Ellyn, supra; Rooks Creek Church v. First Church (1919), 290 Ill. 133. Where it is doubtful whether words create a condition subsequent or a covenant, they will be construed as a covenant, the law favoring such a construction of conveyances as vests estates rather than defeats them. Peck v. Drennan (1952), 411 Ill. 31; Dodd v. Rotterman (1928), 330 Ill. 362; Northwest. Un. v. Wesley Hospital (1919), 290 Ill. 205.

I agree that the public body should keep its word and that the landowner should have an appropriate remedy to enforce the agreement. However, the most drastic remedy of revocation opens into areas of potential mischief and litigation involving public acquisitions of land and should be avoided when another adequate remedy is available.

Here the breach of the access agreement does not affect the value of the land taken. To the extent it does affect the value of the remaining land owned by the successor to the grantor, there is an adequate remedy.

Plaintiff, American National Bank, retains the right to seek a writ of mandamus to compel the Director to institute eminent domain proceedings to determine any alleged damages to its property caused by the change in access. Shaw v. Lorenz, supra; People ex rel. Haynes v. Rosenstone (1959), 16 Ill.2d 513; The People v. Smith (1940), 374 Ill. 286; The People v. Kingery (1938), 369 Ill. 289.

       Defendants suggest that the Supreme Court in the transfer opinion misapprehended the import of People ex rel. King v. Lorenz, supra, and again argue that King did not actually decide the constitutional question posed in this case by the alternative order of revocation of the plat of dedication, but merely decided the question of the availability of mandamus as a proper remedy when a breach of covenant in a deed to the agency of the State has been alleged. These same arguments were made in defendants’ Petition for Rehearing which was denied by the Supreme Court in this case and we will, therefore, limit our review to defendants’ argument on the merits.

       The provision in the deed in King was: “ ‘Grantee shall supplement main Freeway pavement (23rd Avenue) with a parallel all-weather frontage road adjacent to grantor’s abutting lands and extended to provide access for grantor only via said frontage road to establish point of access to main Freeway pavement located at Station 3490/94, (sic) being an extension of 13th Street of East Moline, Illinois.’ ”


source: Caselaw Access Project

author: Mr. JUSTICE VAN DEUSEN

license: Public Domain

text:
    American National Bank & Trust Company of Chicago, Plaintiff-Appellee, v. Scenic Stage Lines of Savanna, Inc., a/k/a Scenic Stage Lines of Iowa, Inc. et al., Defendants-Appellants.
    (No. 70-224;
    Second District
    — December 7, 1971.
    Smith, Smith & Smith, of Savanna, Stewart R. Winstein, and Dorothy O’Dean, both of Rock Island, for appellant.
    Baker and McKenzie, of Chicago, and Nack, Richardson and Nack, of Galena, for appellee.
   Mr. JUSTICE VAN DEUSEN

delivered the opinion of the court:

On May 12,1970, defendants-appellants Scenic Stage Lines of Savanna, Inc. and Roger J. Crow executed and delivered to Hausman Bus Sales, Inc. their confession note for $80,000.00 made payable in one installment on June 26, 1970, to secure the purchase of certain used buses. The note bore the following printed words on the reverse side thereof, with the exception of the signature of “Eugene Tarkoff, Sec-Treas”, which was handwritten:

The note was placed in judgment on July 24,1970, by appellee-plaintiff American National Bank & Trust Company of Chicago who alleged in their complaint ownership of said note.

On August 7, 1970, defendants filed their motion to vacate alleging that the face of the complaint and the note disclosed that Hausman Bus Sales, Inc. did not endorse said note and that plaintiff was not the legal holder at the time judgment was taken. They further alleged that defendants had a meritorious defense and supported their allegations by the affidavits of Lawrence A. Smith, Jr., their attorney, and by the defendant, Roger J. Crow, President of Scenic Stage Lines of Savanna, Inc. The alleged defense was a claimed breach of an agreement to make certain repairs and to guarantee the working condition of the buses and to deliver and keep said buses in operating condition. The affidavit of Roger Crow also asserts that plaintiff Bank had at all times known of said claims. Plaintiff filed the counter-affidavit of Eugene Tarkoff, Secretary-Treasurer of Hausman Bus Sales, Inc., stating, among other matters, that the note in question had, on May 13, 1970, been assigned, endorsed and delivered to plaintiff and that on June 28, 1970, Hausman Bus Sales, Inc. had received a letter dated June 27, 1970, from Scenic Stage Lines of Savanna, Inc. indicating the presence of certain problems with reference to functioning of the buses.

The trial judge found that defendants’ affidavits and motion did not disclose a prima facie defense and denied the motion to vacate, and confirmed the judgment.

On appeal the defendants claim that the trial judge abused his discretion in refusing to open the judgment by confession in that (1) defendants had shown by their affidavits a meritorious defense to plaintiff's demand, (2) in the alternative, the defendants had a counterclaim against plaintiff’s demands, and (3) that plaintiff was not the legal holder of the note in question in that the purported endorsement was legally insufficient.

In its reply brief plaintiff also claimed that the note in question was not a negotiable instrument because it allegedly authorized confession of judgment before maturity. This point was not raised at the trial court level or in appellant’s initial brief; it has, therefore, been waived. Crane Construction Co. v. Symons Co., 25 Ill.2d 521, 527. Sup. Ct. Rule 341(e)(7).

Defendants’ contention that the trial judge should have permitted the filing of a counterclaim and stayed proceedings until disposition thereof under the provision of Supreme Court Rule 276 is without merit. Defendants’ motion to vacate and supporting affidavits at best may disclose a counterclaim against Hausman Bus Sales, Inc. but in no way would constitute a basis of a counterclaim against the plaintiff Bank. Nor did the defendants ever make any such motion for leave to file a counterclaim and stay proceedings on the judgment at the trial court level.

The defendants’ assertion that the plaintiff Bank is not the legal holder of the note in question is based solely on the fact that the alleged endorsement on the back of the note is signed only by “Eugene Tarkoff, Sec-Treas.” without any reference to the legal entity which he purportedly represents. They do not otherwise deny the plaintiff is the owner of the note, nor do they deny the validity of the signatures on the note or the authority of Tarkoff to act for Hausman Bus Sales, Inc., or that value was paid, nor do they claim fraud. Defendants do assert and contend defenses against Hausman Bus Sales, Inc., the payee on the note, and that the plaintiff had notice of these defenses at all times.

Ordinarily, therefore, under Section 3 — 307(2) of the Uniform Commercial Code, where the signatures are admitted, production of the instrument entitles a holder to recover on it unless defendant establishes a defense. According to the commentator’s notes, this subsection goes further than Sec. 59 of the NIL, which it replaces. Under Sec. 59 of the NIL the Illinois courts had long held that it is the established doctrine of this state that, in the absence of proof to the contrary, the endorsee is presumed to have taken it (the note) in due course before maturity for value and in good faith, and he who questions the fairness of the transaction must, to defeat recovery, show that it was obtained by fraud and circumvention. Wells Manufacturing and Merchant’s Life Association 1920, 213 Ill.App. 549, 551.

The initial question here, however, is whether or not a note made payable to a corporation by its corporate name can be legally endorsed by the signature of an individual followed by a description of his position but without reference in the endorsement itself to the entity for which he purports to act. The Illinois Uniform Commercial Code does not deal directly with this issue. Article 3 of the Code dealing with liability of parties does provide in Sec. 3 — 403—Signature by Authorized Representative — that where the instrument names the person represented and the representative signs in a representative capacity, the representative is not liable. In the Code comment on this section (chap. 26, Smith Hurd Illinois Annotated Statutes, p. 224) the commentator points out that the unambiguous way to make the representation clear is to sign “Peter Pringle by Arthur Adams, Agent” but that any other definite indication is sufficient as where the instrument reads “Peter Pringle promises to pay” and it is signed “Arthur Adams, Agent.” There is a strong inference to be drawn from section 3 — 403 that where the note names the corporation as payee that an endorsement signed by its agent in his own name, followed by a description of his position, is a sufficient indication that the individual signer is acting as agent for the named payee and that such an endorsement is legally sufficient. To hold otherwise would place the plaintiff Bank in the anomalous position of not being able to bring suit against Scenic Stage Lines, the maker of the note, because the endorsement is legally insufficient to convey any rights to the Bank against the maker, and also to deny the plaintiff Bank any rights against Tarkoff as an individual endorser because of the terms of section 3 — 403 of U.C.C.A. Such a result would seem to be untenable.

Admittedly, there is not a great deal of case law on this particular form of endorsement. Probably, because an endorsement is seldom made in this manner, and it obviously is not the recommended method of doing so. Such case law as there is in Illinois would suggest the holding that the endorsement in this case is legally sufficient to pass title to the plaintiff Bank as a holder in due course.

The Illinois Supreme Court passed on this question in 1848 in the case of McIntyre v. Preston, 10 Ill. 48. In that case the note was payable to the corporation, Ocean Insurance Company and endorsed “without recourse, Joel Scott, Secy.” At the trial it appeared that plaintiff had filled in the endorsement with the corporate name. The defendant in that case made the same contention as made here, to-wit, that such an endorsement does not purport to be that of the company and it was upon its face wholly insufficient to transfer legal title in the note. The court faced two questions: was the endorsement sufficient, and, secondly, did plaintiff have authority to fill it in on trial. Some slight ambiguity is present in the court’s decision since it answered both questions in the same sentence stating that the endorsement was sufficient to pass the legal interest in the note, when properly filled up, which plaintiff had the right to do upon trial. The reasoning of the court makes rather clear that it answered both questions in the affirmative.

Any doubt, however, would appear to be resolved by the Supreme Court in the case of Hately v. Pike, 162 Ill. 241. In this case a corporate note was made payable to its own president in the following manner: “Pay to the order of Adolph Pike, President” and was endorsed, “Pay to the order of Walter C. Hately, (s) Adolph Pike, President.” The court rejected the contention that the corporation was the payee and the endorsee and held the word “President” following the name of “Adolph Pike” a mere descriptio personae. The court makes clear, however, at page 246 that if the note were payable to the corporation by its corporate name and then endorsed “Adolph Pike, President” it would be sufficient.

The court cites with approval Daniel on Negotiable Instruments (4th Ed. Vol. 1, Sec. 416):

“Where a note is payable to a corporation by its corporate name, and is then endorsed by an authorized agent or official, with the suffix of his ministerial position, it will be regarded that he acts for his principal who is disclosed on the paper as payee and is therefore the only person who can transfer the legal title.”

And finally, it must be kept in mind that the basic question to be decided, since this is a motion to vacate a judgment, is whether or not the trial judge abused his discretion in denying the motion. Defendants neither in their motion or in their affidavits denied or challenged the position or authority of Tarkoff as Secretary-Treasurer of Hausman Bus Sales, Inc. To the contrary, the affidavit of Tarkoff that he was Secretary-Treasurer of Hausman Bus Sales, Inc. stands uncontested. It cannot be said that the trial judge abused his discretion in finding the endorsement valid.

One question remains. Did the motion of defendants to vacate and their supporting affidavits raise a question of fact as to whether or not the plaintiff Bank had notice of defendants’ alleged defenses against Hausman Bus Sales, Inc. at the time the note was negotiated? According to the affidavit of Eugene Tarkoff, the note was endorsed and delivered to the plaintiff on May 13, 1970. This is not denied by defendants.

The only assertion of notice to the plaintiff Bank is contained in the affidavit of defendant Roger J. Crow who asserts that plaintiff Bank at all times knew of the claims of Scenic Stage Lines of Savanna, Inc. that Hausman Bus Sales, Inc. had breached its agreement of May 12, 1970. This is a conclusionary statement and violates the requirement of Illinois Supreme Court Rule 191 that such affidavit “shall not consist of conclusions but of facts admissible in evidence.” But more important, a careful review of the affidavits of defendants discloses no factual assertion that such defenses as claimed were in existence on May 13, 1970 (the day the note was negotiated and one day after the contract was executed). To the contrary, the very nature of the defenses and claims asserted would indicate that they arose at a later date. If the defenses did not exist on May 13, 1970, it cannot be claimed in good faith that the plaintiff had notice of them.

We find that the trial judge did not abuse his discretion in denying defendants’ motion to open and vacate judgment.

Objections of appellants to motion of appellee for leave to file supplemental memorandum were overruled and leave granted to appellee to file said memorandum.

Judgment affirmed.

MORAN and SEIDENFELD, JJ., concur.


author: MR. PRESIDING JUSTICE THOMAS J. MORAN.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Gregory Shannon, Defendant-Appellant.
    (No. 71-71;
    Second District
    — December 7, 1971.
   Opinion by

MR. PRESIDING JUSTICE THOMAS J. MORAN.

Ralph Ruebner, of Defender Project, of Elgin, (Kenneth L. Gillis, of Chicago, of counsel,) for appellant.

Albert N. Kennedy, State’s Attorney, of Dixon, for the People.


author: Mr. JUSTICE ABRAHAMSON

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Thomas Ray Charles, Defendant-Appellant.
    (No. 71-11;
    Second District
    — December 8, 1971.

      E. Roger Horsky, of Defender Project, of Elgin, (Frederick F. Cohn, of Defender Project, of Chicago, of counsel,) for appellant.
    Philip G. Reinhard, State’s Attorney, of Rockford, for the People.
   Mr. JUSTICE ABRAHAMSON

delivered the opinion of the court:

The defendant was charged with a co-defendant, Calvin T. Madison, in a three count indictment with the offenses of murder, felony-murder and armed robbery arising out of an incident that occurred on January 22, 1970. A severance was granted on May 21, 1970, and Madison was tried separately in a five day jury trial that culminated in a verdict of guilty on all three counts. The defendant subsequently entered a plea of guilty to the charge of felony-murder and was sentenced to a term of twenty-five to fifty years in the penitentiary.

On appeal the defendant contends (1) that his plea of guilty was invalid since he had not been advised as to his constitutional right to a bench trial; (2) that he was denied the opportunity to present evidence in mitigation; and (3) that the minimum sentence should be reduced.

On September 2, 1970, after Madison had been found guilty, the defendant, through his court-appointed attorney, in open court requested that plea negotiations be conducted with the state. On September 3, after a plea discussion conference with the court, the defendant withdrew his plea of not guilty and entered a plea of guilty and was sentenced in accordance with the plea agreement. Before accepting his plea, the trial court questioned the defendant at length as to his understanding and agreement to the provisions of the plea negotiations. The court then asked the defendant as follows:

“The court. Now, do you understand that if you enter a plea of guilty you are giving up certain rights that you have, and I want to be certain that you fully understand what those rights are.
First, you waive your right to trial by jury; you understand that?
The defendant: Yes.”

The court proceeded to explain the function of a jury and the defendant’s rights to remain silent, to cross-examine witnesses and to offer evidence on his own behalf. The defendant indicated that he understood those rights and understood that the state would have the burden to prove his guilt beyond a reasonable doubt in the event of a trial. However, the court did not in so many words advise the defendant that he had a right to be tried by the court if he waived a jury, and the defendant now contends that the failure invalidated his plea of guilty.

A similar argument was advanced in the recent case of People v. Wallace, 48 Ill.2d 252, 269 N.E.2d 482, where the accused was admonished as to his right to a trial by jury before the trial court accepted his plea of guilty. The admonition did not include any reference to a trial by the court and Wallace contended that his plea was thus invalid. The Supreme Court rejected that contention and said “We judge that an appropriate admonition and understanding of a right to trial by jury comprehends advice and understanding of a right to trial without jury.”

The defendant here, however, maintains that the ruling in the Wallace case is superseded by Supreme Court Rule 402 (Ill. Rev. Stat. 1969, ch. 110A, par. 402) effective September 1, 1970. Paragraph (a) (4) of the new rule provides that a plea of guilty shall not be accepted unless the court informs the defendant, and determines that he understands, “that if he pleads guilty there will not be a trial of any kind, so that by pleading guilty he waives the right to a trial by jury and the right to be confronted with the witnesses against him.” The committee comments indicate one of the reasons for the new rule was to conform the practice in Illinois to the guidelines set by the Supreme Court of the United States in regard to pleas of guilty in the case of Boykin v. Alabama (395 U.S. 238.) In the Boykin case it was held that it is a violation of due process of law to accept a guilty plea without an affirmative showing, placed in the record, that the defendant voluntarily and understanding!/ entered his plea.

Although the guilty plea in the Wallace case was entered before Boykin was decided, our Supreme Court considered that case in its decision and stated “. . . we do not consider that Boykin is authority for the defendant’s claim.” We conclude, therefore, that Rule 402 does not require that a defendant be specifically admonished as to his right to a trial by the court if he has been properly admonished as to his right to trial by jury and his other rights as enumerated in the rule.

The defendant next contends that he was denied his right to a hearing in mitigation and aggravation as provided by section 1 — 7(g) of the Criminal Code. (Ill. Rev. Stat. 1969, ch. 38, par. 1 — 7(g).) The record shows that the trial judge, in open court with the defendant and his attorney present, asked if they wished to introduce evidence in mitigation before sentence was imposed. The following colloquy then took place.

“Mr. Smith (defense counsel): No, your Honor, I think the conference and the results of the conference negotiations arrived at a settlement that I discussed with my client, that is fair, and I think there are things I could say on his behalf but they would add nothing at this point.

There is no reason why we would insist upon this at this time and would waive our right to the hearing.

The Court: May the record show you waive your right to the hearing

in mitigation?

Mr. Smith: Yes.

Mr. Reinhard (the state’s attorney): We have no request to put in any evidence in aggravation for the same reason; therefore, I would not ask for a hearing in aggravation and would waive the same.

The Court: Well, we have as far as I am concerned (arrived) at that point where, if the defendant is ready, I would impose sentence upon the defendant.

Mr. Smith: Yes, your Honor.

The Court: Are you ready?

The Defendant: Yes.

The Court: Do you have anything further you wish to say?

The Defendant: No.

The Court: Thomas Charles, it is the sentence of the Court s # e.”

A hearing in mitigation and aggravation can be waived provided that the waiver is understanding!/ made. (People v. LaRocco, 123 Ill.App.2d 123, 128, 260 N.E.2d 52.) The defendant contends that there is nothing in the record to show that the apparent waiver of his right to such a hearing was made “understandingly” since it fails to include any admonition by the court in regard to the nature and purpose of the right or the consequence of his waiver. He would have us hold that it is necessary to show on the record that the defendant has been fully advised as to his right to a hearing in mitigation and the consequence of a waiver before it is accepted.

Supreme Court Rule 402 does, of course, just that in respect to the constitutional rights to a trial by jury or to confront one’s accusers. The right to a hearing in mitigation and aggravation as provided in section 1 — 7(g) does not, however, confer a constitutional right. (People v. Fuca, 43 Ill.2d 182, 185, 251 N.E.2d 239, 240.) Our Supreme Court has repeatedly held that the burden is on the defendant to present mitigating circumstances on the record and that the failure to do so will in itself constitute a waiver. People v. Dennis, 47 Ill.2d 120, 265 N.E.2d 385, 393; People v. Fuca, 43 Ill.2d 182, 251 N.E.2d 239, 241; People v. Nelson, 41 Ill.2d 364, 367, 243 N.E.2d 225, 227.

The record shows that the defendant was extensively advised by the court before his plea was accepted and that the guidelines set forth in the rules were scrupulously followed. His attorney expressly waived his right to a hearing in mitigation, in his presence, and he himself declined to offer anything further. There is nothing to show that the defendant did not understand the nature of such a hearing or that he was not completely aware of the result of the negotiation conducted at his request and the sentence to be imposed.

It is obvious, in any event, that a hearing in mitigation and aggravation would serve no useful purpose to the trial court in a case where the plea was a result of a negotiated agreement as to the penalty to be imposed. The defendant maintains, however, that such a hearing should be held to enable a court of review to properly evaluate a request for reduction of punishment brought pursuant to Supreme Court Rule 615(b) (4). (Ill. Rev. Stat. 1969, ch. 110A, par. 615(b) (4).) Again, the burden of presenting such circumstances as will justify a reduction of sentence on review falls on the defendant. People v. Nelson, 41 Ill.2d 364, 243 N.E. 2d 225, 227; People v. Ledferd, 94 Ill.App.2d 74; 236 N.E.2d 1923.

We have considered the recent case of the People v. Bradford, 1 Ill. App.3rd 38; 272 N.E.2d 259 cited by the defendant to the contrary. In that case, the Appellate Court, Fourth District, vacated a sentence of 30 to 60 years imposed after a plea of guilty had been accepted on a murder charge. Although the defendant had expressly waived his right to a hearing in mitigation, the cause was remanded to the trial court for an appropriate hearing so that they could consider a request to reduce the sentence. Aside from the fact that the Bradford case appears to conflict with the Supreme Court’s position in the Nelson and Ledferd cases, it can be distinguished from our case in that the plea was not made in exchange for an agreed sentence.

The authority to reduce sentences is one that must be exercised with “considerable caution and circumspection.” (People v. Taylor, 33 Ill.2d 417, 424, 211 N.E.2d 673; People v. Nordstrom, 73 Ill.App.2d 168, 183.) Generally, a sentence will not be disturbed on review as excessive if it is within the limits prescribed by the legislature unless it departs from the fundamental law and its spirit and purpose, or is manifestly in excess of constitutional limitations. People v. Smith, 14 Ill.2d 95, 97; People v. Buell, 120 Ill.App.2d 367, 372, 256 N.E.2d 845, 847.

The Criminal Code provides that a person convicted of murder (including felony-murder) “shall be punished by death or imprisonment in the penitentiary for any indeterminate term with a minimum of not less than 14 years.” Ill. Rev. Stat. 1969, ch. 38, par. 9 — 1(b).

The stipulated facts presented to the trial court (including a written statement of the defendant) showed that Calvin Madison and the defendant robbed a service station in Rockford. During the course of the robbery a 19 year old attendant at the station was shot four times in the back of the head and killed although there was no indication that he had resisted the robbery. The proceeds of the robbery were shared by Madison and Charles and bullets from the murder weapon secreted in an apartment below that occupied by the defendant. Although the defendant’s statement was to the effect that Madison actually killed the attendant, there is no question as to his active participation in the crime.

In view of these facts, together with the circumstance that the sentence was a result of a plea agreement negotiated at the request of and with the full knowledge of the defendant, we do not feel that the sentence was excessive. Although we do not mean to say that our authority to reduce sentences in appropriate cases as provided by Rule 615(b) (4) is abrogated in the case of an agreed sentence, certainly such a circumstance must be considered in any determination of a request for a reduction.

For the reasons stated, we conclude that the judgment of the trial court was in all respects proper and should be affirmed.

Judgment affirmed.

SEIDENFELD and GUILD, JJ., concur.


text:
    John Kobus, Plaintiff-Appellant, v. Jefferson Ice Company, Defendant-Appellee.
    (No. 71-19;
    Second District
    — December 15, 1971.
    Warren Fox, of Waukegan, for appellant.
    Soffietti & Johnson, of Fox Lake, (Jerome D’lsa, of counsel,) for appellee.
   Mr. JUSTICE ABRAHAMSON

delivered the opinion of the court:

The plaintiff brings this appeal from an order of the circuit court of Lake County that dismissed his small claims complaint brought against his former employer.

The plaintiff was hired by the defendant in June, 1969, to work as a driveway serviceman in a gasoline service station owned by the defendant in Lake County. He was paid $1.90 an horn- for his services until October, 1969, when the pay was increased to $2.25 an hour. On November 1, the plaintiff was made acting manager of the station. On January 1, 1970, he was made full manager and his pay increased to $600.00 a month and a commission on gross sales. He continued to work as manager until his resignation in May, 1970.

At the time of his employment, the plaintiff executed an employment contract prepared by the defendant in the following form:

“Date_
“It is understood by the undersigned, who is to be an employee of Jefferson Ice Company, Depot #_,-, 111., on the above date, that he is hable for his share of any and all shortages over and above 250 per shift paid by Jefferson Ice Company on the shift or shifts he has worked.”

The plaintiff paid his “share” of shortages of the defendant in cash before he received his pay check at the end of each two week pay period. From the start of his employment until his promotion to full manager, the plaintiff paid a total of $235.00 to the defendant for shortages.

As manager, the plaintiff was to approve all checks cashed by driveway servicemen by placing his initials in the comer of the checks. During the month of November, 1969, while the plaintiff was acting manager, a number of worthless checks were cashed at the station in a total amount $774.29. Although the checks had not been approved by the plaintiff or, apparently, cashed while he was on duty, he signed a wage assignment to the defendant in that amount several weeks before he was promoted to full manager. Thereafter, the sum of $430.00 was deducted from his pay by the defendant on the basis of the assignment. After his termination, the plaintiff brought suit to recover the amounts paid by him or deducted from his pay. The trial court found that the defendant was entitled to the monies and dismissed the complaint. This appeal followed.

The first contention advanced by the plaintiff is that the purported employment contract, in view of the unequal standing of the parties, was oppressive and unconscionable and should not be enforced. The defendant, on the other hand, argues that the contract was clear and unambiguous and should not be set aside merely because one party became unhappy with its terms. The defendant states further that the purpose of such an agreement was to assure that the employees at the station would maintain a surveillance of their fellow workers to detect and report any acts of dishonesty. It is not necessary, however, to rule on the validity of the agreement since the facts disclose that the agreement in actuality was not followed by the defendant.

The stipulated facts show that the station was open daily from 6:00 A.M. to either 10:00 or 12:00 P.M. depending on the volume of business. Although these hours would normally constitute a two-shift operation, the actual hours worked by the various employees overlapped since some men worked part time and others overtime. As many as six or eight employees might have worked during any day and no attempt was made to segregate either their individual sales or receipts.

Although the station manager could “read” the pumps at any time to determine the volume of gasoline sold, this was ordinarily done only at the start and close of the business day. The cash received by the servicemen was commingled in a common register and counted at the end of the day. Thus, the computation of any shortage (the difference between the amount of gas pumped and cash received) was computed not on a shift basis, as contemplated by the employment agreement, but on a daily basis.

The agreement provided that the employee would be responsible for the repayment of his “share” (and it is not clear how his “share” could be determined) of any losses incurred during the hours he actually worked. As the defendant points out, the obvious purpose of this provision was to compel the plaintiff to keep a watchful eye on the conduct of his fellow workers. Under the system actually followed it was of course impossible to ascertain when the losses occurred and who was on duty at the time. The plaintiff testified, without contradiction, that none of the shortages resulted from his own conduct or with his knowledge. Under these circumstances, the rationale for the agreement simply did not exist since there was no conceivable way that the plaintiff could logically be responsible for shortages that could have occurred while he was not on duty.

It is commonplace contract law that a party cannot have the benefits of a contract unless he has also performed the obligations. (Ross v. Danter Associates, Inc., 102 Ill.App.2d 354, 361, 242 N.E.2d 330; Nation Oil Co. v. R. C. Davoust Co., Inc., 51 Ill.App.2d 225, 238.) If the plaintiff was to be responsible for losses incurred during the hours he worked, the defendant had the obligation to provide some suitable method to allocate the losses to those hours he was on duty.

Section 39.1 of Chapter 48 of the Illinois Revised Statutes (Ill. Rev. Stat., 1969, ch. 48 par. 39.1) provides that “No assignment of wages earned or to be earned is valid unless * * *. (2) Given to secure an existing debt of the wage earner or one contracted by the wage earner simultaneously with its execution;.”

As already mentioned, the plaintiff, in his capacity as manager, was to approve all checks cashed at the station. Although the defendant admits that the worthless checks were not approved by the plaintiff, they contend that he “assumed” the responsibility for them when he executed the assignment. This argument clearly begs the question since the assignment itself would be invalid unless given to secure an existing debt or one contracted at the time of execution.

It is clear that the plaintiff was not indebted to the defendant for tlie repayment of the checks since they were cashed without his approval or knowledge. Since it is admitted by the defendant that no other consideration was given to the plaintiff at the time he executed the assignment, his “assumption” of the debt was gratuitous and unenforceable. For those reasons we agree that the purported wage assignment was invalid and that it was improper to deduct a portion of the wages due the plaintiff from his pay.

We therefore conclude that the judgment of the trial court was in error and the matter is reversed and remanded with instructions to enter judgment in accordance with the view expressed in this opinion.

Reversed and remanded.

SEIDENFELD and GUILD, JJ., concur.


author: Mr. JUSTICE SEIDENFELD

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Willie Barnes, Defendant-Appellant.
    (No. 70-170;
    Second District
    — December 9, 1971.

      Ralph Ruebner, of Defender Project, of Elgin, for appellant.
    William Ketcham, State’s Attorney, of Geneva, (W. Ben Morgan, and Leo Wotan, Jr., Assistant State’s Attorneys, of Elgin, of counsel,) for the People.
   Mr. JUSTICE SEIDENFELD

delivered the opinion of the court:

The defendant, Willie Barnes, was indicted for Attempt, (Burglary). He was convicted after a jury trial and sentenced to 2-6 years in the penitentiary.

. Defendant argues on appeal that he was not proven guilty beyond a reasonable doubt on the theory that he was accountable for the acts of another under Ill. Rev. Stat. 1969, ch. 38, par. 5 — 2(c). He also contends that it was reversible error to admit a letter taken from a mailbox in the vicinity of the attempted burglary; and to give a “flight” instruction.

The scene of the alleged burglary attempt was a farm home near Elburn, Illinois, owned by John C. Biddle, located in a remote portion of Kane County and reached by a narrow driveway approximately one-quarter mile off the main country road. John Biddle testified that at approximately midnight on December 25th, 1969, at a time when no lights were on in the house, he noticed a car parked near his garage with the engine running. Two persons were in it. He assumed it was his son or a friend, and went to bed. Some time later he was awakened by a “crashing” at his back door. The house was completely dark. He saw a taH man standing with his shoulder against the door on the porch. When he tinned on the porch light the man ran away. Biddle, armed with a rifle, pursued him. Outside Biddle saw the car stuck in the snow some 100-125 feet from where he had first seen it. A man who appeared to be the same person he had seen on the porch was pushing it. The defendant Barnes was in the driver’s seat with the motor running. When Biddle yeUed, the taH man ran away and defendant got out of the car. Defendant said he wanted to talk to Biddle but the latter told him to stay where he was and held him at gun point until the Sheriff arrived after a caH by Biddle’s son.

Richard Biddle, the son of the owner, testified that he was awakened by his father and foUowed him out of the house. His testimony corroborated that of his father.

Both father and son testified that the doorbeU was in working order and had not been rung.

The deputies who appeared on the scene in response to the caH arrested Bames. They searched him and found a screwdriver in his back pocket. They testified that Bames told them he was lost and that he and the co-defendant Golston were from Chicago and were trying to get to Kankakee. The deputies searched the car and found a basebaH bat on the front seat. Over objection, one of the deputies testified that a letter identified as one taken from a mailbox of a tenant on the Biddle property, fefl from the sun visor as he was making a search for weapons. An inspection of the rear door of the Biddle home revealed that parts of the Dutch-type door were ripped loose and a bolt loosened.

Defendant did not testify nor introduce any evidence in his defense.

Defendant argues that his companion, if he were the same man who was seen pounding on the Biddle door, may have had the necessary intent and may have performed a substantial step toward committing a burglary; but that there is no evidence sufficient to prove that Bames had such intention or performed any substantial step toward the commission of the crime. While it is conceded that defendant Bames was never observed on the porch or near the door of the Biddle home, there were sufficient circumstances to show that defendant and Golston were engaged in a common scheme or design to burglarize the premises.

Mere presence at the scene of the crime or “negative acquiescence” are insufficient to make defendant accountable for another’s acts. (See People v. Barnes (1924), 311 Ill. 559, 562.) However, one may aid and abet without actively participating in the overt acts; and presence at the scene of the crime without disapproving or approving it is a factor which may be considered with other circumstances in determining whether the defendant aided and abetted. People v. Thicksten (1958), 14 Ill.2d 132, 134, 135; People v. Washington (1962), 26 Ill.2d 207, 209; People v. Taylor (1925), 319 Ill. 174, 176, 177; People v. Nugara (1968), 39 Ill.2d 482, 487.

Defendant argues that the circumstances are consistent with the theory that defendant and his companion were where they were because they were lost. This theory could have been found by the jury to be inherently suspect on the basis of geography. But additionally there are the inconsistent circumstances that defendant’s companion was trying to break down a door in a darkened house, pushing it with his shoulder and severely damaging it at a time when a doorbell was working but was not rung. The home had to be reached from a narrow and obviously private lane some one-quarter mile from the main road; and defendant was in the car with the motor running ready to take his companion from the scene except for the fact that the car became stuck in the snow. There was no evidence that defendant opposed the actions of his co-defendant. We think that from the circumstances the jury could and did properly find that defendant was not merely present but was a culpable participant in a common design to commit the crime of burglary which was prevented after the attempt. Defendant has relied upon People v. Tillman (1971), 265 N.E.2d 904. We think that the facts in Tillman completely distinguish the cases.

The admission of the letter with evidence that it was taken from the mailbox of a tenant on the Biddle property is not a basis for reversal. Defendant argues that the letter was in no way connected with the offense charged but was evidence of a dissimilar crime, i.e. presumably mail theft, and was unduly prejudicial. We have recently stated the rules governing admission of evidence which also brings to the attention of the trier of facts other possible criminal conduct, in People v. Allen (1971), 272 N.E.2d 296, 299.

“Evidence which discloses that an accused committed crimes other than the one charged is admissible where such evidence is relevant to a contested issue in the case and tends to establish the crime charged. The People v. Davis, 14 Ill.2d 196, 200 (1958); The People v. Spaulding, 309 Ill. 292, 304 (1923). See also Anno: 42 A.L.R.2d 854, et seq. But such evidence is not admissible where it only has value to create an inference-necessarily pre-judicial-that because a man has committed other crimes he is more likely to have committed this one. The People v. Lehman, 5 Ill.2d 337, 342, 343 (1955); The People v. Durkin, 330 Ill. 394, 404 (1928).
# # *
Defendant’s presence during this robbery may be said to be an equivocal act which would be innocent or criminal depending upon the intent or motive with which his presence at the scene of the crime is invested. The offered evidence is relevant to establish the purpose of his presence, that is, whether innocent or as a participant in the crime. See Bush v. United States, 267 F.2d 483, 489 (9th Cir. 1959).”

Here, the letter had some probative value on the question of whether defendant was on the Biddle property because he lost his way or in furtherance of a common design to commit a theft which was an element of the crime charged. Defendant suggests that the letter indicates an attempt to discover his location, so that he could resume his trip to Kankakee. The jury could consider this argument and reject it, but the possession of the letter under the circumstances was relevant to a substantial issue of defendant’s intention. The court properly admitted the evidence for its probative value even though it could have some prejudicial effect. See also People v. Hall (1967), 38 Ill.2d 308, 315; People v. VanRiper (1970), 127 Ill.App.2d 394, 399.

Defendant has also claimed that it was reevrsible error to give an instruction on Flight because there was no supporting evidence. The co-defendant, Golston, did flee, and the instruction properly referred to flight as a circumstance which the jury could consider in the light of aU the evidence in determining guilt or innocence. (See People v. Rossini (1962), 25 Ill.2d 617, 621.) The flight of defendant’s companion was relevant to the issue whether the attempt burglary was committed. Flight is a form of circumstantial evidence based upon the inference that such response has a reasonable relation to consciousness of guüt. It has been condemned as falsely based in that there is risk that an innocent man wUl respond simüarly to a guüty one when confronted. (See United States v. Vereen (D.C. Cir. 1970), 429 F.2d 713, 715.) It may also be criticized as emphasizing one particular circumstance. The I.P.I. Criminal Committee recommends that no instruction on the subject of flight be given but suggests that it may be properly argued. We agree. However, the giving of the instruction here did not deprive defendant of a fair trial and was not error sufficient to reverse. See People v. Weisberg (1947), 396 Ill. 412, 427.

We conclude that the judgment of the trial court based upon the verdict of the jury is supported by proof of guilt beyond a reasonable doubt. We therefore affirm.

Judgment affirmed.

MORAN, P. J., and ABRAHAMSON, J., concur.


text:
    Krueger & Ashe, Inc., Plaintiff-Appellant, v. Harry G. Ende, et al., Defendants-Appellees.
    (No. 71-38;
    Second District
    — December 15, 1971.
    McCuaig, Haeger & Armentrout, of Dundee, (Gene L. Armentrout, of counsel,) for appellant.

      Tyler & Pesldnd, of Aurora, for appellee.
   Mr. JUSTICE ABRAHAMSON

delivered the opinion of the court:

The plaintiff appeals from an order of the circuit court of Kane County entered November 27, 1970, which dismissed their complaint on grounds of laches pursuant to a motion of the defendants. The record consists entirely of the pleadings, affidavits and exhibits submitted to the trial court.

The complaint, filed April 21, 1970, alleged that the parties entered into a written “offer to purchase” in August, 1964 whereby the plaintiff agreed to purchase a single family home in Carpentersville from the defendants for a price equal to the outstanding mortgage balance owed Percy Wilson Mortgage and Finance Corporation as of September 1, 1964. Although the offer was never reduced to a formal written contract, the plaintiff took possession of the property, collected rents, paid the mortgage, taxes and insurance and kept the property in good repair, all in reliance on the agreement with the defendants. Nonetheless, the complaint continues, the defendants refused to furnish a deed for the property as previously agreed and the plaintiff asked the court to order the defendants to deliver their deed, or, in the alternative, appoint a magistrate to execute and deliver a deed on their behalf. A hand written document captioned “offer to purchase” is attached to the complaint and appears as follows:

“Subject to the approval of our attorney, Richard C. McCarthy, as to matters of title and terms of a contract, hereafter to be drawn, I hereby offer to purchase the following described real estate:
One family dwelling located at 956 Berkely, Carpentersville, Ill. by assuming mortgage by Percy Wilson Mtge & Finance Corp. as of Sept. 1, 1964. The escrow account held by them to be assigned to Krueger & Asche, Inc. The fire insurance policy held by them to be assigned to Krueger & Asche, Inc.
The closing date to be September 1, 1964. I hereby tender $100.00 to be held by Seller as evidence of my good faith to be applied against purchase price.”

The document was signed by the defendants and acknowledges receipt of the $100.00 and acceptance of the offer.

The defendants’ motion to dismiss and supporting affidavit recites that prior to September 1, 1964, they leased the home to William Louis Brytung who has been in possession of it ever since and that the mortgage payments (including tax and insurance) were actually paid from the rentals received from him. The motion and affidavit also state that the sale to the plaintiff was not consummated on September 1, 1964, nor did the plaintiff or his attorney ever indicate approval of the “offer” or take any other affirmative action to complete the transaction until more than 5 years had elapsed.

Counter affidavits from both Richard Ashe and Donald Krueger were filed wherein they aver that Brytung was in actuality their tenant and that they had entered into leases with him, collected the rents and made all necessary payments on the property. They further stated that they had made frequent demands on the defendants for a deed.

Brytung, apparently a man of rare accommodation, furnished affidavits to both parties that does little to clear up the confusion. In his affidavit given to the plaintiff, Brytung states that Harry Ende first tried to seU the home but then leased it to him for two years under a written lease dated August 17, 1964. To his “best recoUection”, Brytung remembered that Ende then introduced Ashe to him as the new purchaser and directed him to make aU future rent payments to the plaintiff.

In his second affidavit, Brytung said that he did not know either- Ashe or Krueger prior to his leasing the property from Ende and that although Ende directed him to pay the rent to them he never offered an explanation of their relationship to the property. In any event, Brytung entered into a new lease in September, 1964 and regular renewals thereafter directly with Krueger and Ashe and made all rental payments to them until November, 1969 after which, at his attorneys direction, he made his payments to Percy Wilson. There is nothing to indicate that Ende was ever aware of any lease between Brytung and Krueger and Ashe.

Ende filed an additional affidavit wherein he denied that the plaintiffs made frequent requests for a deed as they had alleged and attached the following letter dated September 1, 1965 that he sent to Ashe.

“Mr. Richard Ashe
Carpentersville-Dundee Agency
111 Oregon Avenue Dundee, Illinois
Re: 956 Berkley
Carpentersville, Illinois
Dear Dick:

Relative to our many phone conversations concerning the formal closing of the sale of property mentioned above, it is imperative that we have the legal papers drawn up immediately.

I have just purchased another home and ran into difficulty with the F.H.A. due to the fact that Percy Wilson Mortgage and Finance Company is still holding me responsible for the property.

By a copy of this letter to Tharpe and Brooks in Atlanta, I am going on record that this property settlement shall be completed within a thirty day period.

You may send the necessary forms to my new home address, which is 1269 Blueberry Trail, Decatur, Georgia.

Thank you for expediting this, Dick, and with best regards, I am,

Yours very truly,
Harry G. Ende”

It is agreed that the doctrine of laches as foUowed in Illinois is best described in the case of Pyle v. Ferrell 12 Ill.2d 547. In the Pyle case, the plaintiff sought to quiet title to a mineral estate of 80 acres and remove as clouds upon his title a tax deed and certain leases made by the holder thereof. Pyle acquired title to the mineral estate by devise from his father in 1932. At that time Pyle resided in California but returned to IUinois in 1946. Pyle made no effort to visit the property or pay the taxes or determine their status until 1954 when he was contacted by a geologist. In the meantime, the mineral estate was sold in 1936 to Ferrell for delinquent taxes of 1935. FerreH received a tax deed in 1938, when no redemption was effected, and made all subsequent tax payments and subsequently leased the property to third parties. Although Pyle attacked the validity of the tax deed on technical grounds, the court dismissed his complaint for reason of laches and was upheld by the Supreme Court. That court defined the doctrine as foHows p. 552:

“Laches, or the doctrine of stale demand, as it is sometimes termed, is a defense peculiar to equity which is bottomed on the reluctance to aid one who has knowingly slept on his rights and acquiesced for a great length of time, and its existence depends on whether, under all circumstances of a particular case, a plaintiff is chargeable with want of due diligence in failing to institute proceedings before he did.” The court goes on to say that the facts necessary to constitute laches

must be determined in each case but quotes Section 498 of 19 Am. Jur. (Equity) to the effect that laches wiH bar a stale demand only where the following facts are disclosed p. 553: “(1) Conduct on the part of the defendant giving rise to the situation of which complaint is made and for which the complainant seeks a remedy; (2) delay in asserting the complainant’s rights, the complainant having had notice or knowledge of defendant’s conduct and the opportunity to institute a suit: (3) lack of knowledge or notice on the part of the defendant that the complainant would assert the right on which he bases his suit, and (4) injury or prejudice to the defendant in the event refief is accorded to the complainant or the suit is held not to be barred.”

The plaintiff agrees that the first two factual requirements enumerated in the Pyle case are present here. Although the plaintiff argues otherwise, the record supports the contention of the defendants that they had no notice that the plaintiff intended to assert their rights until a lapse of 5 years after the agreed “closing”.

It would thus appear that the crucial issue is whether the defendants suffered injury or prejudice by reason of the unquestioned lack of diligence on the part of the plaintiff. The plaintiff asserts that the position of the defendants was completely unaffected by the delay since the only benefit to be accrued by them had the closing been held in accordance with the agreement was relief from the obligation to pay Percy Wilson and that, in fact, they were relieved of that obligation anyway. Although the “offer to purchase”, among other numerous shortcomings, fails to state if the defendants were to be released of liability on their mortgage commitment to Percy Wilson at the time of “closing”, it is obvious that their exposure to liability on the obligation would have been substantially reduced had the plaintiffs executed a formal assumption agreement. Indeed, the letter of September 1, 1965 from Ende to Ashe indicates a good example of injury to his interests, i.e. “* * * difficulty with the F.H.A. due to the fact that Percy Wilson Mortgage and Finance Company is still holding me responsible for the property.”

In addition to their mortgage obligations, the defendants also had the usual responsibilities of land ownership (with no benefits) until the sale was completed. Although it does not appear that any of those responsibilities actually ripened into financial loss, their exposure to them was itself prejudicial to their interests. The plaintiff, on the other hand, had no responsibility at all during their long, unexplained torpor and yet could claim the benefit of any accretion in land value by completing the purchase.

The applicability of the doctrine of laches to any particular factual situation is left to the sound discretion of the trial court and will not be disturbed unless “* * * the determination of the court is so clearly wrong as to constitute an abuse of discretion.” People ex rel. Cronin v. Cahill 118 Ill.App.2d 18, 254 N.E.2d 161, 165; Johnson v. Central Standard Life Insurance Co., 102 Ill.App.2d 15, 32, 243 N.E.2d 371, 385.

We do not find that the trial judge abused his discretion in this matter and accordingly affirm his order of dismissal.

Judgment affirmed.

SEIDENFELD and GUILD, JJ., concur.


author: Mr. JUSTICE GUILD

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Arthur S. Reeder, Defendant-Appellant.
    (No. 71-12;
    Second District
    — December 15, 1971.

      Marco & Mannina, of Downers Grove, for appellant.
    William V. Hopf, State’s Attorney, of Wheaton, (Ralph J. Gust, Jr., Assistant State’s Attorney, of counsel,) for the People.
   Mr. JUSTICE GUILD

delivered the opinion of the court:

The defendant was charged in a two count indictment with reckless homicide and involuntary manslaughter. He was tried by a jury and found guilty of both counts of the indictment. He was sentenced to three years probation with the first 120 days to be served in the county jail.

The defendant, Arthur S. Reeder, is a truck driver. On the 24th of December, 1968, he attended a party at his place of business in North Lake, Illinois. He left the party about 3:45 in the afternoon and at 4:50 P.M. while driving on Ogden Avenue he crossed the center line of a four lane highway and struck a car driven by one Frank Rossi, whose wife was a passenger in that vehicle. Rossi was killed and his wife injured. The defendant was removed from the scene of the accident. At first the defendant said he was not injured but at the police officer’s insistence he was taken to the Hinsdale hospital. At approximately 8:30 in the evening Officer Kenneth Wilbur who had gone to the hospital, talked to the defendant who had received medical treatment and Officer Wilbur then queried him for the purpose of filling out an accident report. Officer Wilbur did not give the Miranda warnings to the defendant. At this point while questioning the defendant Officer Wilbur asked him if he would take a blood alcohol test. The defendant volunteered the statement “this will kill me, I have alcohol in my blood, I want to see my wife before I sign anything.” This statement was made after the defendant was asked to sign a consent slip for the test.

The defendant was driving west on Ogden Avenue which is a four lane highway. Two witnesses testified that prior to the accident they followed the defendant’s car after he had swerved in front of them. Their testimony substantially was that he swerved back and forth in the westbound lanes, at one time going off the road and then later over the center line between the east and westbound lanes. Another witness driving east testified that the defendant crossed the center line forcing him to drive off the road onto the shoulder of the eastbound lanes. He then saw the collision of the defendant’s car with that of the deceased in his rear view mirror. This witness testified further that when he went back to the scene of the accident he noticed that the defendant had been drinking, but the witness refused to answer the question as to whether in his opinion the defendant was intoxicated. Another witness testified that he saw defendant’s car cross the center fine of the four lane highway and strike deceased’s car head on. Still another witness who came upon the scene testified that he noticed that the defendant had been drinking. Defendant himself took the stand and admitted that he had had either three or four drinks of scotch and ginger ale. One of defendant’s witnesses likewise testified that he gave the defendant three drinks of scotch.

The defendant and his wife both testified that he was ill on the day in question. One of defendant’s witnesses testified that the defendant’s “face was flushed and he looked sick” at the Christmas party. The other three witnesses for the defendant who were at the Christmas party did not notice that defendant appeared to be ill, nor did he make a complaint of being ill to any of the people present at the party.

After the defendant was in the hospital he was treated by Dr. Gerald Marsa. Dr. Marsa testified that “my opinion as to his neurological status was that he was intoxicated.”

A motion to suppress the statement made by the defendant to the police officer at the hospital at 8:30 in the evening was heard by the court on September 18, 1969. The court denied the motion. At the trial both Officer Wilbur who was making the investigation of the accident, and Officer Caldwell who stayed at the scene of the accident testified that in their opinion the defendant was intoxicated. At the trial this statement was admitted into evidence.

It is to be specifically noted that the defendant was never charged with driving while intoxicated.

The first contention of the defendant is that the statement made by the defendant at the hospital approximately three and one-half horns after the accident to Officer Wilbur was inadmissible under Miranda v. Arizona (1966), 384 U.S. 436, 86 Supreme Ct. 1602.

Succinctly stated, the question before this court is whether or not a statement made by a defendant pertaining to his drinking is admissible where made to a police officer making an investigation of an accident, not at the scene of the accident, but in the hospital where he was questioning one of the parties to the accident.

Counsel have cited and rely upon People v. Braun (1968), 98 Ill.App. 2d 5, 241 N.E.2d 25. This case may readily be distinguished from the instant case. In Braun, four Illinois State troopers went to the hospital where the defendant was, three days after the accident and told the defendant they had “a ticket” for his arrest. They then queried him in teams of two and the defendant made statements which were used against him at the trial. The prosecution admitted that the statements of the defendant were the culmination of custodial interrogation within the meaning of Miranda, supra. The court there held that Miranda did apply and reversed, even though there might have been sufficient evidence to convict independent of incriminatory statements of the defendant. These facts are quite in contrast to the situation in the instant case. Here we have a police officer investigating an accident. During the course of that investigation he noted that the defendant had been drinking. He then asked the defendant if he would take a blood test, and in refusing to do so, the defendant stated that the blood test would “kill” him as he had alcohol in his blood. The defendant was not in custody, he had not been charged with any offense and as a matter of fact was not charged until some time later.

Custodial interrogation as contemplated by Miranda is “questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” That is not the case in the factual situation here nor do we believe that this apparently routine accident investigation had “focused” upon the defendant. (People v. Milligan (1969), 107 Ill.App. 2d 58 245 N.E.2d 551.) Further in this regard we agree with the court in People v. Routt (1968), 100 Ill.App.2d 388, 241 N.E.2d 206 at page 208 the court stated

“As to the assertion of the application of the decision in Miranda, we do not see that that case is here relevant. Miranda does not apply to the initial interrogation at which the officer asked general questions, because by its language the United States Supreme Court specifically determined that general on-the-scene questioning as to facts surrounding a crime or other general questioning of citizens in the fact-finding process is not affected by our holding.”

We feel that in the instant case the police officer who had no knowledge that the defendant might or might not have been intoxicated took the injured party to the hospital and then subsequently at the hospital queried him as to the facts of the accident. We believe that this constituted “general on the scene questioning” within the meaning of Miranda.

The second contention of the defendant is that one of the two police officers who remained at the scene of the accident testified at the motion to suppress that he noted “a moderate odor of alcohol on the defendant.” At the trial the same officer testified in his opinion that the defendant was intoxicated. It is to be noted that this officer was not queried on the motion to suppress as to whether or not the defendant was or was not in fact intoxicated. In addition to this if there were any impeachment of this officer it was presented to the court by defense counsel. This court does not feel that the defendant was prejudiced in any way by this officer’s testimony, particularly in view of the considerable other evidence presented as to defendant’s intoxication.

The defendant next contends that the evidence was insufficient to prove the defendant’s guilt beyond a reasonable doubt. This contention is without merit. The principal thrust of the defendant’s argument in this regard is that the various witnesses were allowed to testify as to their opinion as to defendant’s intoxication. As pointed out above, the defendant was not charged with driving while intoxicated. The general rule is that the average person is familiar with intoxication and may express his opinion as to whether or not a party is intoxicated based upon his observance of the defendant. It is not deemed necessary to cite authority for this. In addition to this, a medical doctor, the treating physician, testified specifically that from a neurological standpoint defendant was intoxicated when he examined him after the accident. But more important than the question of intoxication is defendant’s actions in driving his vehicle prior to the accident. Defendant’s defense apparently is that he was ill to the point of where he could not drive properly. If that were the case, and from the evidence presented we are not convinced in any way that the same is true, the defendant should not have been driving a vehicle where his faculties were so impaired by his purported illness that he was unable to drive a motor vehicle in a proper manner. In this court’s opinion the evidence is more than sufficient to prove the defendant’s guilt beyond a reasonable doubt.

Judgment affirmed.

MORAN, P. J., and ABRAHAMSON, J., concur.


author: Mr. JUSTICE ABRAHAMSON.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Jose Comancho, Defendant-Appellant.
    (No. 71-26;
    Second District
    — December 21, 1971.
    Morton Zwick, Director of Defender Project, of Chicago, (Ralph Ruebner, and Frederick F. Cohn, of Defender Project, of Elgin, of counsel,) for appellant.
    Jack Hoogasian, State’s Attorney, of Waukegan, for the People.
   Opinion by

Mr. JUSTICE ABRAHAMSON.


author: Mr. JUSTICE GUILD.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Jimmy Trice, Defendant-Appellant.
    (No. 70-284;
    Second District
    — December 21, 1971.
   Opinion by

Mr. JUSTICE GUILD.

Richard C. Christian, of Waukegan, Julius Lucius Echeles, Frederick F. Cohn, and William Lasko, II, all of Chicago, for appellant.

Jack Hoogasian, State’s Attorney, of Waukegan, (A1 Witt, Assistant State’s Attorney, of counsel,) for the People.


author: Mr. JUSTICE PAGE Mr. JUSTICE GUILD,

text:
    Melvin Keil, Plaintiff-Appellant, v. Kathleen McCormick, Defendant-Appellee.
    (No. 70-112;
    Second District
    — October 13, 1971.

      GUILD, J., dissenting.
    Fred Lambruschi, of Chicago, for appellant.
    Corrigan, Mackay, Quetsch & O’Reilly, of Wheaton, for appellee.

       Rehearing was allowed December 9, 1971. Please disregard in Topical Index. See later issue for final opinion.

   Mr. JUSTICE PAGE

delivered the opinion of the court:

This is an appeal from an order of the circuit court of Du Page County denying plaintiff a new trial on the issue of damages only or, in the alternative, on all issues.

By his complaint plaintiff had sought to recover for property damage to his automobile and for personal injuries to himself. Defendant filed an answer generally denying all allegations of the complaint, but, upon the trial of the cause and at the close of her case, she filed an amended answer in which she admitted she was negligent in the operation of her automobile in permitting it to strike the automobile of plaintiff. She admitted her negligence was the proximate cause of damage to the automobile of the plaintiff to the extent of $253.50 and denied “the plaintiff was injured as a proximate cause (sic) of defendant’s negligence.”

The jury returned a verdict for plaintiff in the sum of $253.50.

The proofs showed that on August 6, 1966, in Lombard, Illinois, plaintiff was at the wheel of his car stopped facing south on Elizabeth Street at its “four way stop” intersection with Maple Street. The defendant had stopped her car facing west on Maple Street at said intersection; saw the plaintiff’s car, and made a wide right turn to go north on Elizabeth Street. She crossed the center line of Elizabeth Street while watching a friend on a motorcycle in her rear view mirror and struck the plaintiff’s stationary car at the driver’s door on the left side at a speed of 5 to 10 miles an hour. She was proceeding in first gear in her standard transmission automobile and the impact was her first knowledge of the occurrence.

In his opening statement, defendant’s counsel informed the jury that the evidence would show there had been no injury to the defendant, to the two occupants of her car, nor to the plaintiffs son, an occupant of his car.

Plaintiffs counsel objected to this statement and a conference was held in chambers where the trial judge directed both counsel to present authorities.

Neither party then, nor on this appeal, presented any authority bearing directly on the question of the admissibility of evidence that other occupants of colliding vehicles were not injured as against an allegedly injured plaintiff-occupant.

Counsel for defendant did present the trial judge with four Illinois cases in which evidence of injury to persons other than parties was admitted and sustained on appeal (West Chicago Ry. Co. v. Kennelly (1897), 170 Ill. 508), (as part of the res gestae, describing the manner in which injuries were received and the difficulty of detailing the manner in which an injury was received without at the same time disclosing the others); (Budek v. City of Chicago (1935), 279 Ill.App. 410, (as explaining the failure to produce four deceased witnesses); Redmond v. Huppertz (1966), 71 Ill.App.2d 254), (as a recitation of what eye witnesses saw as a car jumped the curb and struck various pedestrians before hitting plaintiff. “They did not testify as to the nature or severity of the injuries suffered by any of the other persons struck by defendant’s car * * *. Injury or death to others in the same accident is an incident of the accident and is admissible as part of the res gestae”); Woodrick v. Smith Gas Service, Inc. (1967), 87 Ill.App.2d 88, (where feHow passengers of plaintiff testified to the details of the accident and that they had been injured. ‘They did not detail their injuries *’*’*. We are not confronted with a situation where the witness presented great detaff about her injury. That would not be admissible because it is not an issue in the case and could conceivably inflame the jury * * *.) Since no details were furnished there was no error in admitting the testimony.” Emphasis added.

On the basis of these authorities the trial court ruled that if testimony of the bare fact of injury to others is admissible, then testimony of the bare fact of non-injury to other occupants of the colliding cars would also be admissible and directed counsel not to go into anything further than whether or not they were injured.

Defendant, on direct examination by her counsel and in answer to specific questions, testified that neither she nor her passengers were “injured at all in any fashion.”

As a matter of logic, evidence that no one else was injured in two colliding cars might be relevant to the issue of whether or not the plaintiff was injured and possibly the extent of his injuries. But “relevancy” is not synonymous with “admissibility.” There are a number of positive exclusionary rules by which testimony is refused no matter how relevant; for example, an attorney may not testify to confidential communications of his client. Aside from such arbitrary rules, there is wide discretion in the court to exclude evidence for reasons of trial expediency, as where the evidence is so remotely related that its probative value is inconsequential or leads to collateral issues, confusion of issues, prejudice, unfair surprise and the like. Wigmore on Evidence, Section 29a, and at Section 443 “* * * The notion here is that in attempting to dispute or explain away the evidence thus offered, new issues will arise as to the occurrence of the instances and the similarity of conditions, new witnesses will be needed whose cross-examination and impeachment may lead to further issues; and that thus the trial wiH be unduly prolonged, and the multiplicity of minor issues will be such that the jury wiH lose sight of the main issue, and the whole evidence will be only a mass of confused data from which it wiH be difficult to extract the kernel of controversy * *

As stated in Vujovich v. Chicago Transit Authority, 6 Ill.App.2d 115, at page 118, “Plaintiff’s contention upon this appeal, if foHowed to its ultimate conclusion, that she is entitled to show the condition of the other passengers involved in the accident as indicating the severity of the collision and tending to support plaintiff’s claim that she sustained her alleged injuries, would open the door to proof of the physical condition of each of the other passengers. By the same token, if defendant was aHowed to dispute the injuries claimed by the other passengers, it would result in trying coHateral issues, involving other passengers, and virtually trying a number of cases in the instant case. Obviously, such coHateral matters are incompetent and should not be permitted in evidence before the jury.”

In addition to the facts outlined above, the proofs here showed that the plaintiff weighed approximately 250 pounds, was 6 feet 2 inches tall, age 35, was seated in a stationary car with his seat belt snugly fitted across his hips and thighs at the time of the coHision; that his 8 year old son was seated beside him; that plaintiff was watching traffic to his right when his son called “Look out!”; that he turned his head to the left when the defendant’s car was 4 or 5 feet away; that when the impact occurred it rocked plaintiffs car; that he was not sure if his head hit anything, but that something “popped” in his neck and it “cracked, like you crack your hands together loud”; that the defendant was a high school girl and her front seat passengers were girls aged 10 and 12. The proofs did not develop whether anyone other than plaintiff wore a seat belt. The defendant’s passengers did not testify or appear at the trial.

It is noted that while defendant’s testimony that neither she nor her passengers were injured was not only self-serving but hearsay as well, no objection to it on that basis was made at the trial.

Plaintiff presented bills for hospital care, physical therapy, x-rays, medication and physicians’ services totalling $3480.88. Nevertheless, the issue of whether he was in fact injured as a result of this occurrence was a matter of dispute at the trial on the basis of competent medical evidence.

It being well settled that details about the nature and severity of personal injuries to non-litigants in automobile cases is not admissible and not competent (Vujovich v. Chicago Transit Authority and Redmond v. Huppertz, supra) even to show the force of the impact, should the negative evidence of noninjury be governed by a different rule? We think not.

If details about injuries to others are not admissible as not being an issue in the case and being inflammatory to the jury, certainly the absence of injuries to others situated as in this case is not an issue and could be equally inflammatory. The issue of injury to the plaintiff was hotly contested on the medical evidence, and the lack of injury to child occupants of the vehicles, each being differently situated in the cars, of a different age, subject to different forces in different directions, possibly being in different conditions of health, growth, development and resiliency than the plaintiff, the respective weights and structural strengths of the cars involved are among the many collateral issues that might be raised and explored.

In an action to recover for damage to plaintiff’s building caused by the defendant’s use of dynamite in excavating a tunnel, the Supreme Court of Illinois said, “That other buildings at various distances from that of the appellees were not injured would not be competent, and would tend to introduce collateral issues likely to mislead and confuse the jury.” FitzSimons & Connel Co. v. Braun, 199 Ill. 390, at page 393.

The sole issue here is whether the admitted negligence of the defendant was the proximate cause of any injury to the plaintiff and we hold that the admission of evidence of no other injuries was error. ‘Where error is shown to exist, it will compel reversal unless the record affirmatively shows that the error was not prejudicial,” (Phillips v. Lawrence, 87 Ill.App.2d 60.) In our opinion the record does not show affirmatively that the evidence of no injuries to others was not prejudicial to plaintiff.

Defendant further contends that plaintiff waived any possible objection to the testimony of the defendant by his own testimony that his son was not injured and by failing to object when the defendant testified on direct examination that no one in her car was injured. However, having made his objection to the opening statement of defendant’s counsel and the trial court having made its determination that the evidence would be admissible' prior to the taking of any testimony, the plaintiff waived nothing thereby. “After the court has overruled objections to a certain class of evidence, the objecting party may introduce evidence of the same class to meet that of his opponent without waiving his right to claim the benefit of his objection on appeal.” Chicago City Ry. Co. v. Uter, 212 Ill. 174. See also Teter v. Spooner, 279 Ill. 39 and Bruske v. Arnold, 44 Ill.2d 132.

Our decision on these issues makes it unnecessary to consider other issues raised by plaintiff as they are not likely to be raised on a retrial of damages only.

For the reasons indicated, the judgment is reversed and the cause is remanded for a new trial on the issue of damages only.

Judgment reversed and cause remanded.

SEIDENFELD, J. concurs.

Mr. JUSTICE GUILD,

dissenting:

I must respectfully dissent from my colleagues in this case.

The majority opinion here cites no authority for their decision. The opinion is based on the theory that details of other injuries are not admissible as being inflammatory and that therefore the absence of injuries is equally inflammatory. I do not believe that to be the law.

In Budek v. City of Chicago (1935), 279 Ill.App. 410, cited by appellant as being applicable to show why other witnesses were not called as they had been killed in the accident. But counsel has failed to quote the balance of the opinion in this regard. The court stated at page 421:

“Furthermore the death of other occupants of the automobile was an incident of the accident under consideration. We are of the opinion that all the facts occurring at the time were proper to present in evidence.” (emphasis supplied)

The Budek case has been cited with approval by this court. In Redmond v. Huppertz (1966), 71 Ill.App.2d 254, 217 N.E.2d 85 this comt carefully distinguished the facts therein from Vujovich v. C.T.A. (1955), 6 Ill.App.2d 115, 126 N.E.2d 731 cited by the majority herein and stated:

“Injury or death of others in the same accident is an incident of the accident (citing Budek) and is admissible as part of the res gestae * # « We cannot find that this testimony was prejudicial to the defendant.”

Likewise, in Woodrick v. Smith Gas Service Inc. (1967), 87 Ill.App.2d 88, 230 N.E.2d 508 this court in citing Budek with approval stated:

“The witness simply testified to the circumstances of the accident and to the fact that she was injured. That is also a circumstance. Since no details were furnished there was no error in admitting the testimony.” Emphasis added.

If we have held that a witness in an accident can testify that he was injured, without going into details of the injury, certainly the converse is true, i.e., that a witness may testify that he or she, or other parties in the accident were not injured.

I would affirm the judgment of the trial court.