author: Mr. JUSTICE DIXON

text:
    Robert E. Anderson et al., Plaintiffs-Appellees, v. The City of Wheaton, Defendant-Appellant.
    (No. 73-100;
    Second District (2nd Division)
    February 3, 1975.

      Gerald J. Brooks, of Naperville, for appellant.
    Peregrine, Stime & Henninger, of Wheaton, for appellees.
   Mr. JUSTICE DIXON

delivered the option of the court:

This is an appeal from an order of the Circuit Court of Du Page County denying defendant’s petition for a change of venue because of prejudice of the trial judge and from a judgment against defendant on the merits.

On November 10, 1971, plaintiffs filed a complaint for declaratory judgment requesting zoning relief. After issue was joined, the plaintiffs had the cause set down for trial on November 20, 1972, at 11 A.M, before Judge Philip F. Locke. The defendant herein defended its zoning ordinance in another case before the same judge which ran 3 days, November 14, 15 and 16, 1972. Immediately upon the conclusion of that trial, defendant’s attorney prepared a petition for change of venue from Judge Locke. Concurrently, defendant prepared notice that it would be filing a petition for change of venue at the opening of court on November 20, 1972, and hand-delivered that notice to counsel for plaintiffs at about 2 o’clock on November 17.

On opening of court, November 20, the parties appeared; defendant filed its petition for change of venue which stated the belief of defendant that Judge Locke was prejudiced against them and that there would not be a fair and impartial hearing or determination of the issues if the cause was heard by Judge Locke. The petition on behalf of defendant was signed and verified by the mayor, city manager, and by defendant’s attorney. Plaintiffs filed an affidavit in opposition which was considered by the court. Defendant was given leave to file a counter-affidavit. After argument the court ruled that the petition for change of venue and notice was not timely filed and denied the petition. The defendant City then refused to participate in the trial, and after hearing plaintiffs’ witnesses, the court granted the relief requested by plaintiffs. This appeal followed.

Defendant contends that its petition for change of venue met the requirements of the statute, that it had an absolute right to a change of venue since the court had not ruled on any substantive issue in the case, that the petition was in proper form, reasonable notice was given, and its denial was error. Plaintiffs contend that the petition contains a fatal error in that it does not show the time the defendant became aware of the prejudice upon which the petition is predicated, the Venue Act requires reasonable notice to be given, and what is reasonable is left to the discretion of the trial judge which discretion will not be interfered with unless abused.

Section 1 of the Venue Act (Ill. Rev. Stat. 1971, ch. 146 par. 1) provides:

“A change of venue in any civil action may be had in the following situations: (1) * * *
(2) Where any party or his attorney shall fear that he will not receive a fair trial in the court in which the action * * s is pending, because the inhabitants of the county are or the judge is prejudiced against him, or his attorney * * *. In any such situation the venue shall not be changed except on application, as hereinafter provided or by consent of the parties.”

Section 3 of the Act describes the form and other requirements of an application as follows:

“Every application for a change of venue by a party or his attorney shall be by petition, setting forth the cause of the application and praying a change of venue, which petition shall be verified by the affidavit of the applicant. A petition for change of venue shall not be granted unless it is presented before trial or hearing begins and before the judge to whom it is presented has ruled on any substantial issue in the case * *

Section 5 of the Act provides for place of application and notice as follows:

“The application may be made to the court in which the case is pending, reasonable notice thereof having been given to the adverse party or his attorney.”

The rule is well settled that a right to a change of venue due to prejudice of a judge is absolute if the requirements of the statute are met. The trial judge has no discretion as to whether or not the change will be granted and cannot inquire as to the truthfulness of tire allegations of prejudice. Also, the provisions of the Venue Act, particularly when prejudice of the judge is charged, are to be liberally construed in order to effect rather than defeat a change of venue. Rosewood Corp. v. Transamerica Insurance Co., 57 Ill.2d 247, 311 N.E.2d 673.

In support of the argument that a petition for a change of venue must show the time when the prejudice came to the knowledge of petitioner, plaintiff cites Hunt v. Pronger, 12 Ill.App. 403. Hunt v. Pronger was' decided at a time when the Venue Act contained former section 6. (Many long-standing rules were revoked by the 1971 changes in the Act.)

Prior to the 1971 changes in the Act, if a petition for change of venue was filed more than 30 days after the return date, sections 6 and 7 of the Act came into play and it was required by section 6 that 10 days’ notice be given unless the petition stated when knowledge of prejudice first came to petitioner. This was the ruling of Hunt v. Pronger where only 2 days’ notice was given.

Section 7 of the old act required the party applying to “s * * show that the causes for which the change is asked have arisen or come to his knowledge since the expiration of such 30 days.” III. Rev. Stat. 1969, ch. 146, par. 7.

Both sections 6 and 7 were repealed effective September 7, 1971, and Section 3, which was extensively amended effective September 7, 1971, now provides the form and other requirements of the petition. Nowhere in section 3 is there a requirement that the petition state when the prejudice first came to the knowledge of petitioner, and we accordingly hold that the petition herein was in proper foim.

The statute requires “reasonable notice” of an application for a change of venue “to the adverse party or his attorney.” What is reasonable notice depends on the circumstances of each particular case. In the instant case the notice was personally served before the court considered any substantive issue in the case and on the third day before the hearing. We consider that the petition was filed in apt time and with reasonable notice.

After appellee’s brief had been filed, appellant moved to amend the record on appeal pursuant to Supreme Court Rule 329 and asked for leave to file an additional abstract which contained only the court reporter’s transcript of proceedings had at the hearing on November 20, 1972, regarding the petition for change of venue. This transcript was presented to the trial court for certification, and although no objection was made to its accuracy, the certificate was withheld. Appellees objected to the motions and also moved to strike the additional abstract and appellant’s reply brief which was entirely based thereon. The motions were taken with the case.

There is no contention by appellees that the transcript is incorrect. We agree with the opinion of the court rendered in Jaskowiak v. Village of Posen, 70 Ill.App.2d 409, that under these circumstances it would be judicial wheelspinning for us to send the case back for certification of the transcript. The motion to amend the record is allowed. See Supreme Court Rule 366(a)(3).

Upon a proper showing, an abstract is amendable, and, in the exercise of the sound discretion of the court, leave may be granted to file a supplemental abstract. Dempski v. Dempski, 27 Ill.2d 69, 72; Lincoln Casualty Company v. Vic & Mario’s Inc., 31 Ill.2d 291, 292;' McKinney v. Illinois Power Co., 26 Ill.App.2d 193, 198.

Appellee’s objection to the motion to file the supplemental abstract is that granting thereof would permit the injection of new matter in the case and raise grounds which they could not argue since they had filed their brief. They cite Enlow v. Illinois Central R.R. Co., 103 Ill.App.2d 269, and Public Federal Savings & Loan Association v. La Salle National Bank, 76 Ill.App.2d 252. We do not think such an argument applies to the instant situation where no new matter is injected in the case and no additional grounds are raised. The transcript contains only arguments of counsel and comments of the trial judge.

The court erred in denying the petition, and any orders entered thereafter are void. Board of Education v. Morton Council Teachers Union Local 571, 50 Ill.2d 258.

For the reasons stated, the judgment of the Circuit Court of Du Page County is reversed, and the cause is remanded for further proceedings consistent with this opinion.

Reversed and remanded.

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

       Where a change of venue is sought on grounds of local prejudice or the undue influence of the adverse party, the adverse party may controvert the petition by counter-afEdavits but where a change of venue is sought on grounds of prejudice of the judge counter-affidavits are not permissible. 36 I.L.P. Venue §15 (1958); People v. Scott, 326 Ill. 327, 343; Woodhull v. Kelly, 10 Ill.App. 455, 456. Section 69 of the Civil Practice Act expressly states that “This section does not apply to applications for change of venue on grounds of prejudice.”


source: Caselaw Access Project

author: Mr. PRESIDING JUSTICE THOMAS J. MORAN

license: Public Domain

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Byron Haak, Defendant-Appellant.
    (No. 73-229;
    Second District
    February 3, 1975.

      George Pease, Public Defender, of Waukegan (Michael J. Boyd, Assistant Public Defender, of counsel), for appellant.
    Jack Hoogasian, State’s Attorney, of Waukegan (James W. Jerz, of Illinois State’s Attorneys Association, of counsel), for the People.
   Mr. PRESIDING JUSTICE THOMAS J. MORAN

delivered the opinion of the court:

After a jury trial, the defendant was found guilty of reckless homicide and sentenced to imprisonment for 1 to 6 years. He appeals, contending (1) the statute setting forth the offense of reckless homicide is unconstitutional, and (2) the trial court erred in sentencing him under the extended-term provision of the Unified Code of Corrections.

It is defendant’s position that section 9 — 3(b) of the Criminal Code (Ill. Rev. Stat. 1973, ch. 38, §9 — 3(b)) is unconstitutional in that it violates the doctrine of equal protection under the law and is an unauthorized delegation of discretionary power to the State’s attorney and grand jury. The defendant relies exclusively on People v. McCollough, 8 Ill.App.3d 963 (1972).

Subsequent to the defendant filing his appeal, the decision relied upon was reversed by our supreme court (People v. McCollough, 57 Ill.2d 440 (1974)). Therein it was held that section 9 — 3(b) did not violate the doctrine of equal protection nor contain an unauthorized delegation of legislative authority. People v. McCollough, at 444-45.

Reckless homicide is a Class 4 felony (Ill. Rev. Stat. 1973, ch. 38, § 9 — 3(c)(2)), with the maximum term not to exceed 3 years. Ill. Rev. Stat. 1973, ch. 38, § 1005 — 8—1(b) (5).

The defendant claims that the trial court erred in sentencing him to a 6-year maximum term under the extended-term provision of the Criminal Code. He argues that neither the facts of the present cause nor his prior criminal record justify the trial court’s finding that he presents a continuing risk of physical harm to the public, and that, regardless, he could not be sentenced under the extended term provision without first being committed for a presentence examination and report.

The extended term provision of the Unified Code of-Corrections (Ill. Rev. Stat. 1973, ch. 38, § 1005 — 8—2) states in relevant part:

“(a) The court may sentence a defendant who is 17 years of age or older and convicted of a felony in which he inflicted or attempted to inflict serious bodily injury to another, or in which he used a firearm in the commission of the offense or flight therefrom, to a term not to exceed twice the maximum sentence that could be imposed under Section 5 — 8—1, if the court finds the defendant presents a continuing risk of physical harm to the public, and that such a period of confined correctional treatment or custody is required for the protection of the public.
(b) A sentence under this Section shall not be imposed unless the defendant has been committed for examination and report before sentencing under Section 5 — 3—3.”

Council Commentary notes in part:

“* * * [T]he section differs from the former Habitual Offender Act, in which any past conviction of a felony automatically subjected a person to an extended term, without reference to past violence or future potential for dangerousness.” (Ill. Ann. Stat. ch. 38, § 1005 — 8—2, at 481-82 (Smith-Hurd 1973).)

Thus, under this section, a defendant convicted of a felony in which he inflicted or attempted to inflict serious bodily injury to another, or in which he used a firearm in the commission of the offense or flight therefrom, may be sentenced to an extended term. His prior criminal record, however, remains relevant in determining whether he presents a continuing risk of physical harm to the public and whether confined correctional treatment is required for the public safety.

The facts in the present cause reveal that during the afternoon and early evening hours of October 9, 1972, the defendant celebrated his 20th birthday by consuming an unknown quantity of beer. At about 7 P.M. that evening, he, with three companions, drove south on Green Bay Road. At a location approximately one-half mile north of Yorkhouse Road, and at an estimated speed of 97 m.p.h., the car which defendant was driving collided with the rear of another southbound vehicle, propelling that vehicle into the northbound lane where it was struck by a northbound auto. The driver and passenger of the southbound car died as a result of this collision. Defendant’s three companions and the investigating officer all testified that, in their opinion, the defendant was driving while under the influence of intoxicating liquor.

The defendant’s prior record reveals that in November, 1969, he was charged with armed robbery. He pled guilty to a reduced charge of robbeiy and was placed on 2 years’ probation. In July, 1971, while still on probation, he was charged with disorderly conduct and driving on a suspended license. As a result of these charges, he was sentenced to seven weekends in jail and his probation was extended until 1974. The acts which resulted in his conviction for reckless homicide were committed while defendant was still on probation.

In the span of 3 years, defendant has committed three offenses, the latter two while on probation. Two of the offenses are felonies, one of which imposed upon another person the risk of serious bodily harm and the other, in fact, having caused the death of two members of the public. Defendant’s acts and his repeated breach of the terms of his probation clearly indicate his total disregard for the law. In light of this record, we conclude that the trial court could reasonably find that the defendant presents a continuing risk of physical harm to the public and that an extended period of confinement is required for the protection of the public.

It is noted, however, that the extended term section states with certainty that “a sentence under this Section shall not be imposed unless the defendant has been committed for examination and report before sentencing under Section 5 — 3—3.” The Council Commentary of the extended term provision states that this section “requires a prior examination of the defendant under section 1005 — 3—3 by a court clinic or the Department of Corrections.” (Emphasis added.) (Ill. Ann. Stat. ch. 38, § 1005 — 8—2, at 481 (Smith-Hurd 1973).) The Council Commentary to section 5 — 3—3 states that “[t]he court must make such a commitment where it intends to invoke its powers to set an extended term of imprisonment under section 1005 — 8—2.” (Emphasis added.) (Ill. Ann. Stat. ch. 38, § 1005 — 3—3, at 269 (Smith-Hurd 1973).) The Council Commentary of both the above sections also notes that these sections were derived from the statutes of Minnesota and other jurisdictions.

The Advisory Committee Comment to Minnesota’s extended term provision relates:

“Under the recommended sections it is discretionary with the trial judge whether or not the extended term shall be imposed. Also it cannot be imposed unless certain conditions have been met. Namely, a presentence report, a diagnostic evaluation report and recommendation, a hearing, and findings which will include a finding that the defendant is disposed to the commission of criminal acts of violence and that an extended term of imprisonment is required.
These requirements are intended to assure that the habitual offender act is applied only in those cases of the serious offender who for his own sake or in the interest of the public should be confined for a period longer than the maximum provided by the statute violated and that it should not be applied to the offender who is guilty of two or more isolated criminal acts and not otherwise shown to be disposed to criminal behavior dangerous to the public.” (Minn. Stat. Ann. § 609.155, at 149 (1964).

We hold that commitment for diagnostic study is a condition precedent to sentencing under the extended term provision and that, here, failure to follow such procedure requires the sentence to be vacated and the cause remanded for resentencing.

Judgment affirmed; sentence vacated and cause remanded.

RECHENMACHER and GUILD, JJ., concur.


author: Mr. JUSTICE SCOTT

text:
    Leslie M. Munts, Plaintiff-Appellee, v. Frank E. Fitzsimmons et al., Defendants-Appellants.
    (No. 74-9;
    Third District
    January 31, 1975.

      Rehearing denied March 1, 1975.

      Sidney D. Davidson, of Peoria (Alan M. Levy, of counsel), for appellant.
    Alan B. Marsh, of Ottawa, for appellee.
   Mr. JUSTICE SCOTT

delivered the opinion of the court:

This is an appeal from a judgment entered by the Circuit Court of La Salle County in favor of Leslie M. Munts, plaintiff, who brought an action at law for a judgment declaring that he is entitled to certain pension benefits from the Central States, Southeast and Southwest Areas Pension Fund, of which the defendants are trustees.

The fund from which the plaintiff seeks to obtain a pension is jointly administered by an equal number of employer. and union trustees in accordance with the Taft-Hartley Act (29 U.S.C. 186(c) (1970)), with a consequent tax exemption' under provisions of the Internal Revenue Code which incorporates the Taft-Hartley Act by reference. Because the statutory scheme restricts such trust funds to disbursements “* * * for the benefit of employees, their families and dependents, for medical or hospital care, pensions on retirement or death of employees * # *” (see 29 U.S.C. 186(c) (1970)), the trustees declined to pay benefits to the plaintiff since they determined that his work fell- into the category of being that of an independent contractor rather than that of an employee.

In our opinion, the crucial issue presented in this appeal is a narrow one, to-wit, whether the defendant trustees acted arbitrarily or capriciously in denying tire plaintifFs application for a pension.

The evidence adduced during the trial of this cause disclosed that the plaintiff owned his own truck, paid for its operation and upkeep, and that he was paid on the basis of tonnage and distance hauled for delivery work which he performed for a business known as the French Coal Company. While most of his time was devoted to working for the French Coal Company he was under no contract or lease giving this company the exclusive rights to his services. In fact the plaintiff also hauled other com-' modities for other parties as a common carrier operating pursuant to authority granted to him by the Illinois Commerce Commission. When performing services for the French Coal Company, the plaintiff was paid monthly on the basis of total weight and miles involved. The plaintiff paid for his own fuel, maintenance, costs, parts, and upkeep expenses. It is clear from tire record that he had sole control over his equipment which included the right to determine when he should purchase new trucks and as to what models.

The plaintiff performed services for the coal company for a period of 13 years and we deem it significant that payments made to him could only be considered “payments in gross” since no deductions were withheld for social security payments, unemployment compensation taxes or Federal income tax. It should be noted that on tire contrary the plaintiff in filing his tax returns treated himself as a self-employed person.

The plaintiff, in support of Iris plea that the judgment of tire trial court should not be disturbed, argues that a master-servant relationship existed between himself and the coal company. In support of this contention he cites several cases. In examining these cases we fail to find them persuasive as to supporting a finding of a master-servant relationship in the instant case. In Hayes v. Morse (8th Cir. 1973), 474 F.2d 1265, we have a case where independent truck owners were determined to be employees even though they owned then* own equipment as does the plaintiff in the instant case; however, in Hayes the truck owners were tied to a carrier employer by elaborate financial arrangements, and in fact had relinquished all control as to the operation of their equipment. Also cited by the plaintiff is Downs v. Baltimore 6- Ohio R.R. Co., 345 Ill.App. 118, 102 N.E.2d 537, wherein a master-servant relationship was found to exist. We quarrel not with the decision in Downs, but it is clearly not applicable to the case before us since the injured plaintiff was working for a dock company and the costs of operating this company including the payment of wages to the plaintiff was paid by the defendant railroad. The dock company though a nominal employer of the plaintiff was a mere instrumentality of the defendant, ,and, as die court stated in Downs, it was “a straw man without legal life of its own.”

The plaintiff in his brief states, “Although the French Coal Company may not have exercised its control over the manner of his doing his .work, it most certainly had the right to exercise such control.” We agree with this statement, since it is applicable whether the plaintiff was an employee or an independent contractor. Should the plaintiff have refused to deliver coal to a new customer (an example cited by the plaintiff), then we have no doubt but what the coal company could have refused to further use the services of the plaintiff. We would not, however, construe such refusal to be synonomous with a conclusion that the plaintiff was “discharged or fired.” We are of the opinion that at any time either the plaintiff or the coal company could have severed the loose albeit contractual relationship that existed between them over a period of many years.

Without reiterating the facts as adduced by the evidence, we can only conclude that when an owner operator such as the plaintiff exercises such a degree of freedom in the use of his equipment, its scheduling, its Esaintenance, and does not participate in benefits normally afforded employees, i.e., overtime pay, income tax withholding, social security payments by the employer, then that individual must be treated as an independent contractor. See George Transfer & Rigging Co. (1974), 208 NLRB No. 25; Fleet Transport Co. (1972), 196 NLRB 436.

Having reached this conclusion, it follows that the action of the trustees in denying the pension claim of the plaintiff was not arbitrary or capricious.

It should be further noted that the plaintiff had an opportunity to respond to tire trustees’ analysis of his employment relationship with the coal company. The plaintiff’s application for benefits failed to specifically mention his work witih the coal company. Even though prior to a determination by the trustees the attorney for the plaintiff was notified that further evidence of employee service would have to provided or the claim would be rejected, no such evidence was forthcoming. Neither the plaintiff or his attorney ever made any effort to ascertain what type of further evidence or further information was deemed necessary by the trustees in order to merit a favorable disposition of the plaintiff’s pension application. While the plaintiff was under no duty to offer any explanation to the trustees as to why he deemed their tentative decision to deny his application as an erroneous decision, he nevertheless had an opportunity to do so, and failing to avail himself of this opportunity certainly does not lend merit to his contention that he was the recipient of arbitrary and capricious treatment.

The function of the trustees is to preserve the vitality of the fund and to effectively apply its worth to the benefit of as many intended employees as is economically possible. In absence of vagarious conduct we will not disrupt that function, and we find no impropriety on the part of the trustees with respect to the situation before us. See Gaydosh v. Lewis (D.C. Cir. 1969), 410 F.2d 262.

For the reasons set forth, the judgment of the Circuit Court of La Salle County is reversed.

Reversed.

STOUDER and DIXON, JJ., concur.


author: Mr. JUSTICE SMITH

text:
    Duane E. Shanle et al., Plaintiffs-Appellants, v. Ellen Moll, Defendant-Appellee.
    (No. 12489;
    Fourth District
    December 30, 1974.

      Rehearing denied March 3, 1975.

    Samuels, Miller, Schroeder, Jackson & Sly, of Decatur (William O. Martin, Jr., of counsel), for appellants.
    Thomas J. Logue of Glenn & Logue, of Mattoon, for appellee.
   Mr. JUSTICE SMITH

delivered the opinion of the court:

This is an appeal by the plaintiffs from an adverse judgment of the circuit court of Logan County for recovery by a contract purchaser of a greenhouse and adjacent dwelling. Count I of the complaint requested that the contract be declared void under the provisions of section 2 of “An Act relating to installment contracts to sell dwelling structures” (Ill. Rev. Stat. 1971, ch. 29, par. 8.22) for the reason that such contract contained no certificate of compliance setting forth a written warranty that no notice of any city, village or other governmental authority of a dwelling-code violation had been executed in compliance with section 2 of said statute. County II alleged that the contract was void because it was procured by fraud on the part of the sellers in that, they represented to plaintiffs (1) that the boiler was mechanically sound and in good working condition, (2) that the tables located in the greenhouse used to display the plants were not rotted, but were in a usable condition, and (3) that the window frames which the defendant had covered with tar paper were not rotted, but were in good condition, and “paragraph 4 of the- complaint asserted that said representations were false and were made by the defendant and her husband with knowledge of their falsity and with the intent that the plaintiffs should believe the same, and should rely and act. thereon, and should be deceived and defrauded thereby”; that the plaintiffs believed such representations and in relying on them entered into the contract, and this they would not have done had they known that said representations were false.

Section 2 of the Act (Ill. Rev. Stat. 1971, ch. 29, par. 8.22) in substance states that any installment contract for the sale of a dwelling structure shall be voidable at the election of the buyer unless there is attached to the contract or incorporated therein a certificate of compliance stating that the dwelling structure was inspected within 30 days before the contract was executed by an inspector of the muncipality or county where the premises is located and that at the date of the execution of the contract the dwelling structure is not in violation of any building code, or, in the alternative, an express written warranty that no notice from a city, village or other governmental authority indicating that a dwelling code violation had been received by the seller, his principal or his agent within 10 years of the date of the execution of the installment contract, or, if such notices had been received,- they are specifically listed in the agreement. The trial court held that inasmuch as the sellers retained possession of the dwelling for the complete term of the contract with the proviso that they pay rent after January 1, 1973, the statute does not apply. This being true, the court finds that no relief is available -under Count I of the complaint.

The court found that no relief could be granted under Count II of' the complaint for the reason that it does not state the truth of the matter in regard to the boiler, tables and window frames, and fails to allege any specific injury to the plaintiffs. We have some difficulty in following the argument of the defendant and of the finding of the trial court. Since the defendant filed a motion to dismiss the allegations of Count II, it must for the purpose of the motion and our review be taken as true. Saying it as succinctly as is humanly possible, it appears to us that Count II succinctly states exactly what the defendant had misrepresented and that the defendant relied upon such misrepresentation and entered into the contract. Under such circumstances, the defendant represented to the plaintiffs that they were purchasing something that they did not have and did so well knowing that such was the truth. It is a well accepted principle that fraud vitiates all contracts, making them voidable at -the option of the injured party. (Pittman v. Lageschulte, 45 Ill.App.2d 207, 195 N.E.2d 587; Bresler Ice Cream Co. v. Millionaires Club, Inc., 71 Ill.App.2d 342, 218 N.E.2d 891.) A complaint should not be dismissed for failure to state a cause of action unless it clearly appears that no set of facts could be proved under the pleadings which would entitle the plaintiffs to relief. (Courtney v. Board of Education, 6 Ill. App.3d 424, 286 N.E.2d 25.) It necessarily follows that if the plaintiffs can prove what they state under Count II they have not only alleged but have established a cause of action entitling them to declare the contract void. In Solem Machine Co. v. Carroll, 2 Ill.App.3d 847, 277 N.E.2d 773, it is stated: “When fraud is charged, if the facts and circumstances, taken in aspect most favorable to the proponent may fairly be considered evidence tending to prove fraud in all of its elements, an issue is created for the jury.”

The disagreement about the sufficiency of Count I of this complaint is based upon an argument concerning the term “possession.” In this contract, the sellers reserved physical possession of the dwelling and its appurtenance and had the option to remain there paying rent until the termination of the contract. There is no reason to give the term "possession” any different meaning than it has heretofore been accorded in the law. Under the terms of this contract and its schedule of payment, it would not be completely paid off until the end of 10 years. It began in September 1971, and as we have noted, the sellers are given the option of remaining in actual physical possession until the end of the contract. Hence, if actual physical possession is meant by the statute (and it does not precisely cover the situation where the seller has only an option to remain in possession), it would seem that the protective benefits of the statute are lost. The common-sense interpretation of the statute insofar as in its definition of installment contract in section 1(e) is concerned, it states that such a contract is where “the consideration for such sale is payable in installments for a period of at least one year after buyer takes possession of the dwelling structure and the contract seller continues to have an interest, or security for the purchase price of otherwise in that property.” (Ill. Rev. Stat. 1971, eh. 29, par. 8.21 (e).) In our judgment, that must be construed to mean that, since the contract provides for the seller to pay rent, the seller is in fact the owner of two separate interests in the property; one is a security interest wholly unrelated to possession or occupancy and the second is that the occupancy is as a lessee and on no other basis. In short, so far as possession is concerned under the statute and under this contract, the buyer at least was vicariously in possession within the meaning of the law when the seller began to pay rent, or stating it differently, the possession of the tenant is the possession of the landlord in most all occasions, except as between the landlord and tenant themselves. It would seem abundantly clear that the purpose of the statute is not for the purpose of forcing a seller to comply with a nonexisting building code but to furnish information for the protection of the buyer as to the condition of the property he is purchasing without requiring that purchaser to search the records or cause an inspection of the house for possible violations not only of municipal or county ordinances but, as the statute states, other governmental dwelling authorities such as State health, State fire protection and environmental protection agencies. It is a simple matter for the owner of the house to make the assertion required by section 2 that within 10 years he has received no such information from any such agencies suggesting a violation or if he has, the list of such notices are attached to the contract. Accordingly, Count I also states a cause of action.

Accordingly, the judgment of the trial court is reversed and the cause is remanded with directions to vacate the judgment and direct the defendant to file an appropriate answer to the complaint.

Reversed and remanded with directions.

SIMKINS, P. J., and TRAPP, J., concur.


author: Mr. JUSTICE CRAVEN.

text:
    Elmer Bartolo, d/b/a Bartolo Trucking and Excavating Company, Plaintiff-Appellee, v. Skaggs Construction Company, Inc., Defendant-Appellant.—(The City of Springfield, Defendant.)
    (No. 12487;
    Fourth District
    February 6, 1975.
    James T. Mohan and Fred Prillaman, of James T. Mohan Law Offices, of Springfield, for appellant.
    Charles Gramlich and Edward G. Coleman, both of Springfield, for appellee.
   Opinion by

Mr. JUSTICE CRAVEN.


author: Mr. JUSTICE KASSERMAN

text:
    E. H. Spaulding, Plaintiff-Appellant, v. Peoples State Bank of Bloomington, Defendant-Appellee.—(Charles W. Johnson, Defendant.)
    (No. 12351;
    Fourth District
    February 6, 1975.
    Larry M. Leiken, of Eureka, for appellant.
    John P. Schwulst, of Bloomington, for appellee.
   Mr. JUSTICE KASSERMAN

delivered the opinion of the court:

Plaintiff appeals from the order of the circuit court entering judgment in favor of the defendant, Peoples State Bank of Bloomington, Illinois, a banking corporation, and against plaintiff.

The facts are not in dispute. The evidence indicates that E. H. Spaulding, the plaintiff, in November 1971, met defendant, Charles W. Johnson, in response to a newspaper advertisement in which Johnson offered a Cadillac for sale. On November 25, 1971, the parties agreed that Johnson would sell the car to Spaulding for $6200, and Spaulding agreed to pay $4700 cash and transfer a 1970 Chevy Nova to Johnson. The evidence indicates that Johnson had purchased the Cadillac from one Les Snow, and that he obtained a loan from the Peoples State Bank of Bloomington to help finance the purchase. He made application for a new certificate of title for the Cadillac by transferring to himself the title which was in the name of Les Snow, the application indicating a lien in favor of the Peoples State Bank.

On November 27, 1971, in the presence of Johnson, plaintiff delivered a $4700 bank money order to the Peoples State Bank, and Johnson was given credit on his loan in exact amount that was necessary to retire his loan, being approximately $3000, and was given the bank’s cashier’s check for the balance of the money order.

After the Johnson loan was paid, plaintiff asked for a certificate of title to the Cadillac and was told by an employee of the Peoples State Bank that Johnson’s application for a certificate of title had been sent to the office of the Secretary of State and had not been returned. Spaulding was then told by a bank employee that the transfer would take approximately 6 weeks, but when the title was returned by the Secretary of State to the bank, it would be forwarded to Spaulding.

Spaulding and Johnson left the bank, and, at Spaulding’s request, Johnson gave him a handwritten receipt for the sale of the Cadillac, describing the car by year and serial number. The receipt also stated that the certificate of title was in the mail. Spaulding refused to turn over the certificate of title to the Nova until he received the certificate for the Cadillac. Both Johnson and Spaulding then left the bank, each in the other’s car.

On December 6, 1971, Spaulding was asked by Illinois State Police if they might inspect the Cadillac, and a few days later it was impounded as a stolen vehicle. Spaulding had no further possession of the Cadillac, and a certificate of title was later mailed to Spaulding which showed Johnson’s endorsement and the bank’s release of its purported lien.

Spaulding immediately contacted Johnson concerning the loss of the Cadillac, and Johnson stated he knew nothing about the car having been stolen. Subsequently, Johnson returned the Nova to Spaulding, and Spaulding promptly made demand of the Peoples State Bank for a return of his funds.

The bank refused to make refund to Spaulding, and he then filed suit against the bank and Johnson; however, Johnson was later adjudged bankrupt and was discharged prior to commencement of this trial. A default judgment was entered in favor of Spaulding and against Johnson, and, after a bench trial, judgment was entered in favor of the Peoples State Bank and against Spaulding. Spaulding then perfected this appeal from the order of the circuit court entering judgment in favor of the bank and against him.

It is the contention of the appellant that the decision of the trial court results in an unjust enrichment of the defendant bank, and he argues that where a mutual mistake of fact exists in the contract the court should require full restitution to an innocent payor where the payee participates in the transaction.

The Peoples State Bank further raises the question as to whether it should be permitted in this court, after oral arguments have been heard, to amend its answer and allege the affirmative defense that it was a holder in due course of the bank money order.

It is our opinion that the trial court committed no reversible error in entering judgment in favor of the defendant bank and against the plaintiff, E. H. Spaulding.

Under the provisions of section 3 — 107(c) of the Illinois Vehicle Code (Ill. Rev. Stat. 1971, ch. 95%, par. 3 — 107(c)), a certificate of title issued by the Secretary of State is prima facie evidence of the facts appearing thereon. Obviously, the purpose of this section is to provide the public with a readily available means of identifying the owners and lienors to the vehicle described in the certificate of title. (Blake v. Illinois (1951), 21 Ill. Ct. Cl. 141.) To hold that either party is entitled to recover judgment based on this section of the Illinois Vehicle Code would render this section of the Code a nullity. Both the plaintiff and the bank were entitled to rely on the certificate of title to the Cadillac as prima facie evidence of the facts contained therein. To hold to the contrary would make the daily conduct of commercial transactions involving automobiles unduly burdensome. The record in this case indicates a wait of approximately 6 weeks for return of an automobile certificate of title after application has been made; therefore, for the extended period of 6 weeks the bank would be put in the position of being a guarantor of title to a vehicle until the application was processed. Once issued, the certificate of title is prima facie evidence of the facts appearing on it, and, absent information to the contrary, parties dealing with the vehicle described in certificate may do so in reliance thereon. In re German (7th Cir. 1961), 285 F.2d 740.

Plaintiff asks this court to order a refund of the money he paid to the bank on die theory that a mutual mistake of fact existed and that since the bank participated in the transaction, it would be unjustly enriched if it were permitted to retain the funds paid to it. This argument overlooks the fact that it was he, the plaintiff, who contacted Johnson and arranged to purchase the Cadillac; that it was he who, along with Johnson, sought out the bank to discharge Johnsons loan; and that it was he who delivered the payment to Johnson to retire his loan with the bank. Ihe bank was an impassive and inactive participant in the entire transaction. It received payment from Johnson but made no representation that the plaintiff was acquiring a valid certificate of title to the Cadillac. It did nothing other than release its purported lien on Johnson s automobile. It is impossible to conclude, as plaintiff does, where one of two innocent parties will suffer a loss because of a mutual mistake, the plaintiff and not the bank should be the one to be protected. Such a conclusion would be the equivalent of holding that the bank in loaning Johnson money to purchase an automobile is a guarantor of the title to the automobile. Such is not the case. Plaintiff dealt with Johnson, who represented that he had valid title to the Cadillac, and it was he upon whom plaintiff relied. The bank made no representation as to the validity of the title, nor did it in any way induce plaintiff to make the purchase. To the contrary, the bank’s only representation to plaintiff was that it was releasing its lien on the Cadillac.

In view of the foregoing, it is unnecessary to deeide the other questions raised on review, including the issue of whether or not the defendant bank should be permitted to amend its answer at this time; therefore, the judgment of the trial court is affirmed.

Judgment affirmed.

SMITH, P. J., and TRAPP, J., concur.


author: Mr. JUSTICE DEMPSEY

text:
    B. S. Livingston & Company, Inc., Plaintiff-Appellant, v. Bethlehem Steel Export Corporation et al., Defendants-Appellees.
    (No. 58097;
    First District (3rd Division)
    December 5, 1974.

      Rehearing denied January 30, 1975.

      Clausen, Hirsh, Miller and Gorman, of Chicago (Frank Schneider and James T. Ferrini, of counsel), for appellant.
    Bradley, Eaton, Jackman & McGovern, of Chicago (Michael A. Snyder, of counsel), for appellees.
   Mr. JUSTICE DEMPSEY

delivered the opinion of the court:

B. S. Livingston & Company, an exporter of steel, purchased 2,900 tons of secondary cold rolled steel from Bethlehem Steel Export Corporation for resale to a customer in Italy. Pursuant to agreement, Bethlehem wrapped the steel in waterproof paper and shipped it by the New York Central Railroad to a marine terminal owned and operated by the International Great Lakes Shipping Company at Calumet Harbor, Chicago. International had agreed to unload and store the steel, without cost to Livingston, at its open-air facilities until it could be shipped abroad on a freighter of the Yugoslav Line, for which International was the agent.

The purchase, shipping and storage agreements were made in July 1967, and in August of that year, at Bethlehem’s plant in Burns Harbor, Indiana, 775 packages of the steel were loaded on 38 open gondola cars. The cars were in transit 3 to 10 days and were delivered by New York Central to International at seven different times. The first two cars left Bethlehem on August 2 and arrived on August 8; the last three arrived on August 27. It had rained on August 8, 10, 18, 19, 26 and 27. Steel is subject to rust from rain and moist air and that bought by Livingston— secondary cold rolled — had more flaws than primary steel and was more susceptible to oxidation from exposure to water and humid atmosphere. International noticed that packages were wet, the wrappings were torn and that rust was forming on the sides and corners of the steel. On August 16 it reported its observations to Livingston. By August 22, 29 carloads had been delivered and on that date Livingston inspected the steel and confirmed the damage. Despite the damage, Livingston disagreed with International’s opinion that the material was not suitable for export to Europe. The contents of the nine cars delivered subsequent to August 22 were in essentially the same condition as that examined by Livingston on the 22nd.

International unloaded the steel from the gondola cars and stored it outdoors on wooden chocks and covered it with plastic and with canvas tarpaulins which were secured by large pieces of wood. Livingston encountered difficulty in consummating the contemplated sale to its Italian customer and the material remained on International’s lake-side dock until sometime in October 1967. In the meantime the customer reduced its order to 1,000 tons and Livingston negotiated the sale of most of the balance to a client in Germany. Considerable deterioration had occurred during storage and representatives of the two prospective purchasers examined the steel toward the end of September and rejected it as unsatisfactory. An effort was made to renovate the steel, but it was decided that this would be too expensive. Finally, the entire lot was sold to a warehousing firm at a considerable loss to Livingston.

Livingston filed a complaint for damages against Bethlehem, New York Central and International. The complaint alleged that each of the defendants committed one or more negligent acts: failure to adequately cover the steel from the elements during shipment; failure to properly load and unload the steel from the freight cars; careless and negligent handling of the material; shipment and storage in open rather than enclosed accommodations, and failure to prevent further damages after knowledge that the steel was being damaged. The second count of the complaint alleged that the defendants had exclusive possession and control of the steel and that no damage would have occurred to it if the defendants had exercised due care.

At the close of the evidence, the trial court dismissed the second count. The jury found in favor of Bethlehem, but returned a verdict against New York Central and International and assessed damages of $25,000. Post-trial motions were filed by New York Central, International and Livingston. The court granted a new trial to New York Central as to damages and entered a judgment notwithstanding the verdict for International on all issues. Livingstons post-trial motions were denied.

Livingston appeals from the n.o.v. judgment granted International and from the denial of its motion for a new trial against Bethlehem and International on Count II. It does not appeal the new trial New York Central received on the issues of damages.

The case was tried on Livingston’s erroneous theory that the negligence of one defendant was the negligence of all. It is apparent that the intent behind this theory was the desire to hold the two financially solvent defendants — Bethlehem and International — liable for any damage caused by New York Central (now the Penn Central) which is presently in financial difficulty. In keeping with this intent, it is to be noted that Livingston does not protest the partial new trial for damages allowed the railroad.

The evidence fully justified the jury’s verdict that Bethlehem was not guilty of negligence, but that New York Central and International were. In our view, however, New York Central and International were successive, not joint, tort-feasors.

The steel left Bethlehem’s plant in good condition. Each package was bound with steel straps running lengthwise and crosswise around it, wrapped in oil paper selected by Livingston, loaded in enclosed facilities and in accordance with the rules of the American Association of Railroads, and shipped in cars to which Livingston had no objection. To prevent the packages from slipping in the freight cars, they were placed on skids and separated by lengthwise wooden runners. 2" x 4" and 4" x 4" uprights were attached to the skids. No logical inference that there was negligence on Bethlehem’s part can be drawn from the condition of the steel at th© time it reached International’s terminal. Three railroads participated in transporting the material, the freight cars went through five switching yards and took as long as 10 days to reach their destination, during which time they had been exposed to rain.

On the other hand, the evidence presented at the trial supported the jury’s conclusion that New York Central’s handling of the shipment and International’s handling and storage of the steel contributed to its damage. There was testimony that 102 of the 775 packages were damaged when they arrived at the terminal. Some were torn, some had broken bands, some were wet, some had started to rust and others were bent from being jammed against the ends of the cars. Water dripped from several of them as they were lifted from the cars.

The railroad left the cars about 150 to 200 feet away from the unloading area. International’s employees moved the cars by pushing a tractor against the last car in the fine. The impact from that car set the next car in motion until the whole line of cars moved. A 2-foot downward slope over a distance of 300 to 400 feet caused the cars to roll to the unloading area. After the first car stopped, each following car bumped the preceding car and stopped. International’s superintendent testified that the procedure used to move the freight cars was not forceful enough to constitute a “humping” — a railroad term meaning heavy impact between cars. Still, he noted in his records that he observed humping when he checked the packages. He also testified that the freight cars were not covered or protected between their arrival at the terminal and their unloading. In one instance, three cars that arrived on August 23 were unloaded on the 28th; it rained on tire 28th and had rained on August 26 and 27.

In removing the packages from the cars, International used a crawler type crane and attached four clamps to each package before lifting it. The packages were lowered on to a dunnage (6' x 8' lengths of 4" to 4" lumber) and a forklift truck then carried four of them at a time approximately 150 feet to the storage area where they were placed on dunnages and piled 6 feet high. The piles were covered with plastic that draped over on to the ground and tarpaulins were placed over tihe plastic; both were then anchored with dunnage.

An official of Livingston watched the employees unload several cars on August 22. He looked at the packages before and after they were removed. He said they were carefully handled and that the forklifts used to transport them to the storage area were large enough to move the steel without bending or twisting it.

At the time International officials agreed to store the steel free of charge, they thought it would be on their premises about 30 days. Before the steel was shipped from Bethlehem, Livingston knew that the sale to its Italian customer was in trouble, but because it was bound to accept delivery it did not attempt to delay the purchase date. The incompleted sale, Livingston s negotiations with prospective buyers and other factors, prolonged the storage. It was not until September 11 that a letter of credit from its first customer for 1,000 tons was established to Livingston s satisfaction, and on September 15 a sale of some 1,700 tons was confirmed as to its second.

There had been rain on 7 of the August days the steel was on International’s dock and there were particularly heavy rains on September 20, 21, 26, 27 and 28. On the 26th a storm tore the covers off the piles of steel. International sent a telegram to Livingston reporting that the steel had been damaged and stating that International was not responsible for damage caused by bad weather. Although there was testimony that International replaced the coverings after the heavy-rainstorm on September 26, there was also testimony that they were not replaced until 2 days later.

On September 28,1967, representatives of the purchasers, accompanied by representatives of Livingston and International, inspected the steel. One of them, a chemical engineer who specialized in marine surveying, testified that some of the covers were flapping in tire wind, some had blown off the piles, the wrapping material was torn and the steel was exposed to the elements. He examined 15 packages selected at random and, whether the covering on a package was torn or not, the top sheet of steel in three-quarters of the packages was heavily rusted and the second sheet was spotted with rust. Four packages were sagging at the ends where they overhung the dunnage and 43 contained sheets with nicks and gouges on the edges or riffled corners which, in his opinion, could have been caused while the packages were being lifted or lowered, or by their being swung into a stationary object.

Over International’s objections, the jury was instructed that it could not allocate damages among the defendants and it was given a form of verdict compatible with the instruction. This was error — an error that was inadvertently recognized by Livingston, the party responsible for it, in its reply brief:

“If the defendants were not joint tort-feasors, then the jury should simply have been allowed to apportion damages. » 6 *
Certainly, the jury in the instant case would face a difficult task in apportioning damages, but that fact does not excuse the trial court’s refusal to permit the jury tp dp sp,”

The defendants were not joint tort-feasors. As stated in Yeazel v. Alexander (1871), 58 Ill. 254, 262:

“It is the general rule, that where an act is done by the cooperation of several persons, they may be sued jointly or severally; but one is never hable for the injury of another, unless they act in concert; and several will not be held hable for the acts of one without co-operation, or their conduct naturally produced the acts which resulted in injury. Where the acts of different persons are entirely distinct and separate as to any aid, advice, counsel or countenance, from one to the other, there can not be a joint liability.”

New York Central and International did not act in concert, had no contractual relationship between themselves, did not handle the steel at the same time, and bore no responsibihty for each others negligence.

In Greene Steel & Wire Co. v. F. W. Hartmann & Co. (1969), 299 N.Y.S.2d 654, 32 App. Div. 2d 538, 1970 A.M.C. 1341, it was held in an analogous situation that a shipping company and a storage company which were sued for damages to coils of wire were not joint tort-feasors. 6,600 coils of steel wire were bought in Germany, shipped to New York and stored on a pier. The coils were rusted when unloaded from the ship and were damaged further during storage. The plaintiff sued the shipping line, its agent and the company which owned and operated the pier. The trial court entered a joint judgment against the three defendants, but the judgment was reversed as to the owner of the pier. The reviewing court held that the owner of the storage facility was liable only for its own tortious conduct; that if it caused any damage to the wire it was successive to and separate from the damage which occurred aboard the ship, and that the plaintiff did not meet its burden of establishing the extent of the damage at the time the wire arrived in New York and the extent the damage was aggravated while in storage.

In its post-trial motion, International requested a judgment notwithstanding the verdict because it was the bailee of Livingstons steel; it contended that the Illinois law of bailment required Livingston to prove that the steel was in good condition when it was delivered to its terminal. It argued that since the evidence and the jury’s verdict against New York Central established the contrary, Livingston had not sustained its burden of proof. International also asked for a new trial because the trial court erred in treating the case as one of joint liability and in not instructing the jury concerning the apportionment of damages. As we have seen, the judgment n.o.v. was granted and the motion for a new trial was denied. No appeal was taken from the order denying the motion for a new trial.

In this court, International defends its judgment not on the bailorbailee relationship, but on the instructions and the form of verdict given the jury which cast Bethlehem, New York Central and itself in the legal posture of joint tort-feasors. Livingston answers that International should not be allowed to take advantage of the latter point because it did not file a cross-appeal from the denial of its motion for a new trial. In this Livingston is correct. However, while International cannot defend its judgment on tire ground of the Livingston-induced error from which it did not appeal, neither can Livingston be allowed to take advantage of its own error. Although International's judgment n.o.v. must be set aside because of the evidence of its negligence, in the interest of complete justice the damages assessed against it will also be set aside. New York Central was granted a new trial on the issue of damages and that will be our order as to International. (Ill. Const. (1970), art. VI, §6; Ill. Rev. Stat. 1973, ch. 110A, par. 366(a)(5).) This will enable the two defendants to meet on common ground in contesting the size of the loss sustained by Livingston and to defend in the same trial their own responsibility for that loss.

The evidence showed a gradation of damage to the steel which would make apportionment possible. The fact that the amount of damage caused by the negligence of each defendant may be difficult to ascertain is no reason why damages should not be allowed. Thomas v. Ohio Coal Co. (1916), 199 Ill.App. 50. As Professor Prosser has said:

“The question is primarily * * * the feasibility and practical convenience of splitting up the total harm into separate parts which may be attributed to each of two or more causes. Where a logical basis can be found for some rough practical apportionment, which limits a defendant’s liability to that part of the harm which he has in fact caused, it may be expected that the division will be made.” Prosser, The Law of Torts 313-314 (4th ed. 1971).

Because of our decision it is not necessary to consider Livingston’s alternative contention that error was committed in dismissing Count II of its complaint. Accordingly, the judgment entered in favor of Bethlehem is affirmed.

International’s judgment n.o.v. will be vacated. The verdict of the jury finding International liable will be reinstated; the verdict as to damages will be vacated. The cause will be remanded for a new trial not inconsistent with the views expressed in this opinion, on the issue of' damages.

Affirmed in part, reversed in part and remanded.

McGLOON and MEJDA, JJ., concur.


author: Mr. JUSTICE DIERINGER

text:
    Albert P. Nowicki, Plaintiff-Appellee, v. Evanston Fair Housing Review Board et al., Defendants-Appellants.
    (No. 58341;
    First District (4th Division)
    December 11, 1974.

      Rehearing denied January 2, 1975.

    Jack M. Siegel, Corporation Counsel, of Evanston, for appellants.
    Kirkland & Ellis, of Chicago (William D. Maddux, Raymond R. Cusack, and Gary M. Elden, of counsel), for appellee.
   Mr. JUSTICE DIERINGER

delivered the opinion of the court:

This is an appeal from a judgment entered by the Circuit Court of Cook County reversing a decision of the Evanston Fair Housing Review Board.

The only issue presented on appeal is. whether the decision of the Fair Housing Review Board was against the manifest weight of the evidence.

On January 17, 1972, following a hearing on a complaint brought by Horacio Lewis, the Evanston Fair Housing Review Board found tire plaintiff-appellee, Albert Nowicki, guilty of violating certain provisions of the Evanston Fair Housing Ordinance. The Board fined Nowicki $500. Plaintiff-appellee then filed his complaint for administrative review, seeking the review of the order of the Fair Housing Review Board. The trial court reversed the finding of the Board, and the instant appeal resulted.

Upon presentation of his oral argument before-this court in the case at bar, counsel for the defendants-appellants notified the court for the first time of two very recent supreme court decisions which are applicable to the instant case. Counsel for both the plaintiff-appellee and the defendants-appellants urged this court to disregard the cases and decide the present case on its merits. We cannot, however, ignore the decisions of the supreme court, and we will not do so.

In Cummings v. Daley (1974), 58 Ill.2d 1, tire supreme court, quoting Paper Supply Co. v. City of Chicago (1974), 57 Ill.2d 553, held:

<“tt « « "pjjg method of judicial review of the decisions of the defendant City’s administrative agencies is not a “function pertaining to its government and affairs” within the contemplation of section 6 of article VII of the Constitution of 1970, and the determination of the maimer or method of such review is not within the powers conferred upon the City.’” (58 Ill.2d 1, 4.)

In Cummings, the trial court quashed a return to a writ of certiorari which it had issued to review a decision of the mayor of the city of Chicago suspending the real estate licenses of three individuals. The supreme court affirmed, stating:

“* * * there was a jurisdictional defect in the Commission’s report which requires that the judgment of the circuit court quashing the return to the writ of certiorari be affirmed.” (58 Ill.2d 1, 4.)

In Paper Suppy Co., the appellate court held invalid a provision of the City of Chicago’s “head tax” ordinance which had attempted to adopt the provisions of the Administrative Review Act with respect to proceedings for judicial review of administrative decisions under that ordinance. The supreme court agreed, and the same result must follow here. The city of Evanston was without power to declare the Administrative Review Act applicable to administrative decisions rendered under the Evanston Fair Housing Ordinance. Although the record is silent on that question, the plaintiff-appellee proceeded under the Administrative Review Act. The appeal was taken and heard in the circuit court prior to the aforesaid opinions, therefore it could not have been anticipated the supreme court would hold that to properly challenge the decision of the Fair Housing Review Board the plaintiff-appellee should have filed a writ of certiorari with the circuit court.

Plaintiff-appellee’s counsel filed a motion asking this court to treat both appeals, first the one to the circuit court and then this one to the appellate court, as if a petition for a writ of certiorari had been properly filed in the circuit court, by now amending the complaint in the circuit court. Plaintiff-appellee’s motion must be denied because the appellate court cannot confer jurisdiction upon itself or upon the circuit court when the original proceeding was void for lack of jurisdiction.

For the reasons stated herein, the judgment of the Circuit Court of Cook County is reversed for lack of jurisdiction, the proceedings being a nullity, and it follows the order of the Fair Housing Review Board stands affirmed.

Circuit court reversed; board affirmed.

ADESKO, P. J., and JOHNSON, J., concur.


author: Mr. PRESIDING JUSTICE ADESKO

text:
      In re Estate of Cyrill Cerny, Deceased.—(Miles Mares, Adm’r of the Estate of Cyrill Cemy, Deceased, Petitioner-Appellant, v. Frances L. Morris, Respondent-Appellee.)
    (No. 59305;
    First District (4th Division)
    December 11, 1974.

      Salvatore E. Oddo, of Oak Park, for appellant.
    Robert D. Bjork, of Chicago, for appellee.
   Mr. PRESIDING JUSTICE ADESKO

delivered the opinion of the court:

This appeal arises from the denial of a petition to recover assets. At issue are numerous savings accounts which were established by the petitioner-appellant’s decedent with the respondent-appellee, Frances L. Morris, named as joint tenant. The petitioner, as administrator of the estate of decedent, Cyrill Cemy, sought to have the court declare these accounts to be assets of the estate and to have the surviving joint tenant, Frances L. Morris, deliver the funds in these accounts to the estate of the decedent. The trial court denied the petition, and we are of the opinion that it acted correctly.

This case was submitted to the trial court upon a stipulation of facts, numerous exhibits and a discovery deposition of Frances L. Morris. The stipulation of facts discloses that Cyrill Cerny died on April 21, 1969, and was survived by his wife, Marie Cerny, and his sister, Frances L. Morris. Marie Cerny died on April 26, 1969, 5 days after her husband and was survived by Miles Mares and other brothers and a sister. Frances L. Morris paid the funeral bill and final medical expenses of Cyrill Cemy. At the time of Cyrill Cemy’s death, numerous joint-tenancy accounts were found naming Frances L. Morris as joint tenant with Cyrill Cerny. Mrs. Morris claimed the funds in these accounts as surviving joint tenant and paid the requisite Illinois inheritance tax. In her deposition Mrs. Morris stated that she did not contribute any of the funds that were deposited in these joint-tenancy accounts. Frances L. Morris also received the proceeds of a life insurance policy insuring the life of Cyrill Cerny in which she was named beneficiary. The stipulation of facts also discloses that Mrs. Morris established out of her own funds several joint-tenancy savings accounts in California naming the decedent, Cyrill Cerny, as joint tenant. The stipulation also recited that the title to the residential real estate of Cyrill Cerny was in his wife’s name alone.

The issue in this appeal is whether or not the decedent intended to create a joint tenancy in favor of respondent, Frances L. Morris, in the numerous savings accounts that he established. The petitioner maintains that the accounts were created merely for the convenience of decedent and his wife, Marie Cerny. We do not agree.

The petitioner does not question the fact that the numerous joint tenancy savings accounts in issue were properly created according to statutory procedure. Therefore, in accordance with Illinois law, a presumption of donative intent in favor of the surviving joint tenant arises. It is incumbent upon the person claiming against the surviving joint tenant to prove by clear and convincing evidence the absence of such do-native intent. (In re Estate of Marx, 11 Ill.App.3d 727, 297 N.E.2d 637 (1973).) As our supreme court stated in Murgic v. Granite City Trust & Savings Bank, 31 Ill.2d 587, 590-91, 202 N.E.2d 470, 472 (1964):

“The legislative policy to treat the joint account as a useful technique for transferring intangibles dictates that the estate or other person claiming against the survivor should have the burden of disproving intent on the part of the decedent, and the degree of proof required to void the presumption should be clear and convincing. * * *
We hold that an instrument creating a joint account under the statutes presumably speaks the whole truth; and, in order to go behind the terms of the agreement, the one claiming adversely thereto has the burden of establishing by clear and convincing evidence that a gift was not intended. This burden does not shift to the party claiming under the agreement.”

We are of the opinion that petitioner failed in his burden of proof.

In support of his contention that respondent was named as a joint tenant merely for the convenience of the decedent and his wife, petitioner refers to a segment of respondent’s deposition in which she was asked the following question and gave the following response:

“Q. For what reason did he put you on those bank books?
A. Because his wife was [a] mental case and she couldn’t do anything, and I am the only one who could take care of her because they didn’t know even half the time, they didn’t know where her folks were.”

However, the deposition also contains the following question and answer:

“Q. What did he tell you to do, though, with the money?
A. He said, ‘Frances, the money is yours,’ same as mine, so I says, ‘Okay. It isn’t any more than fair that if something happens to me, there is only two of us here. Mary can do nothing, so there is only two of us here, so I put my name, my money in your name and you put all your money in my name. But the house is in Mary’s name and we leave it there.’ ”

The evidence in favor of petitioner is meager and falls far short of overcoming clearly and convincingly the presumption of donative intent.

Petitioner also refers to the fact that respondent made no deposits into the accounts and that decedent retained possession of the passbook until his death. However, it is well established that the making of all deposits and possession of the passbook are not controlling. In re Estate of Gubala, 81 Ill.App.2d 378, 385, 225 N.E.2d 646, 651 (1967).

For the reasons herein stated the judgment of the Circuit Court of Cook County is affirmed.

Judgment affirmed.

BURMAN and JOHNSON, JJ., concur.

       The deposition of Frances L. Morris was taken in California and she was represented by counsel. Petitioner’s attorney intended to call Mrs. Morris as an adverse witness pursuant to section 60 of the Civil Practice Act. However, due to her infirmities she was unable to attend and testify and it was agreed that her discovery deposition be received as the testimony of Frances L. Morris.


text:
      In re Sanford Anderson, a Minor.—(The People of the State of Illinois, Plaintiff-Appellee, v. Sanford Anderson, a Minor, Defendant-Appellant.)
    (No. 59381;
    First District (4th Division)
    December 11, 1974.

      James J. Doherty, Public Defender, of Chicago (Thomas Finegan, Assistant Public Defender, of counsel), for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., Jerome Charles Randolph, and Thomas D. Rafter, Assistant State’s Attorneys, of counsel), for the People.
   Mr. JUSTICE DIERINGER

delivered the opinion of the court:

A petition for adjudication of wardship of a juvenile was filed in the Circuit Court of Cook County, charging William Petrosaitis and Sanford Anderson, both aged 16, with the offense of attempted arson. At a bench trial on June 15,1973, the court found them delinquent. On November 11, 1973, William Petrosaitis completed probation, and a motion to vacate the finding of delinquency was sustained and his appeal became moot.

The sole issue on this appeal is whether the defendant Sanford Anderson, was proven guilty beyond a reasonable doubt.

Officer Thomas Rennie of the Chicago Police Department testified he and his partner were driving in a marked police car past the Piser Memorial Chapel parking lot at 5206 North Broadway at about 9:30 P.M. on January 11, 1973. He observed Sanford Anderson bending down by the rear of a vehicle, fumbling with some objects while the license plate was bent down. Rennie also saw William Petrosaitis standing about 5 feet away with what appeared to be a gas cap in his hand. The area was well fit with street lights and the light from a neon sign.

The officers drove around the corner and came through the alley into the lot where the vehicle was parked. Officer Rennie obseived the two boys walk away from the car and head south on Broadway. When they were stopped they denied having been around the vehicle. The officers returned to the car, looked beneath the real- license plate and found the gas cap was missing. Both boys denied knowledge of its whereabouts. After a search it was discovered about 15 feet away from the vehicle.

The officer conducted a protective search on the respondents, and Sanford Anderson was found to have a can of lighter fluid containing 1 fluid ounce, a cigaret lighter, a nail clipper, and a length of fuse. Petrosaitis also had a length of fuse, a lighter, and a 3-inch-long model rocket engine. No gasoline was detected on the fuses and no chemical analysis was undertaken.

Margaret Ford, a social worker for the Chicago Board of Education, appeared as a character witness on behalf of both boys. She stated that both were good students behaviorally and academically.

Sanford Anderson contends he was not proven guilty beyond a reasonable doubt because there was no proof of intent to commit the crime of attempted arson, nor was there proof of any step towards the actual commission of the crime, as required by section 8 — 4 of the Illinois Criminal Code (Ill. Rev. Stat. 1973, ch. 38, § 8 — 4). The officer stated he saw Sanford Anderson fumbling with some materials at the rear of the car, and the protective search disclosed materials which could have been used as incendiary devices. However, the link between the materials and the alleged crime was not proved. No inference of guilt can attach to the confiscated items because they could all be explained on a theory of innocence, that of launching a model rocket. The suspicion of guilt is insufficient, and it is the duty of the court to resolve all facts and circumstances on the theory of innocence rather than guilt if it can be reasonably done. People v. Dougard (1959), 16 Ill.2d 603.

While we do not presume the activities of the boys at the rear of the car were consistent with good citizenship, we hold the crime of attempted arson was not proven beyond a reasonable doubt. For these reasons the judgment of the Circuit Court of Cook County is reversed.

Reversed.

BURMAN and JOHNSON, JJ., concur.


author: Mr. JUSTICE HALLETT

text:
      In re Carmen Gonzales, a Minor.—(The People of the State of Illinois, Plaintiff-Appellee, v. Ramona Melendez, Respondent-Appellant.)
    (No. 59685;
    First District (1st Division)
    November 27, 1974.

      Opinion modified upon denial of rehearing January 28, 1975.

      Gary H. Palm, of Mandel Legal Aid Clinic, of Chicago (Beth B. Davis and James G. Wilson, Senior Law Students, of counsel), for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Sheldon Gardner, Kevin Sweeney, Edna Selan Epstein, and Paul P. Biebel, Jr., Assistant State’s Attorneys, of counsel), for the People.
   Mr. JUSTICE HALLETT

delivered the opinion of the court:

In the circuit court of Cook County (Juvenile Division) Carmen Gonzales, the minor child of Ramona Melendez, was adjudged to be a neglected minor within the meaning of the Juvenile Court Act. (Ill. Rev. Stat. 1971, ch. 37, par. 702 — 4(1) (b).) At the subsequent dispositional hearing, the child was placed in the custody of Richard S. Laymon of the Illinois Department of Children and Family Services. The mother has appealed from both orders.

The issues are (1) whether the evidence at the adjudicatory hearing was sufficient to support the finding of neglect; (2) whether the State was constitutionally required to fund the nonresident and indigent mother’s travel expenses to attend the adjudicatory and dispositional hearings; (3) whether the admission of hearsay evidence at the dispositional hearing, over the objection of respondent, was proper; and (4) whether evidence, which related to the respondent’s emotional condition, admitted at the dispositional hearing, was violative of the respondent’s psychiatrist-patient privilege.

After a careful review of the record, we conclude that the finding at the adjudicatory stage (that Carmen Gonzales was a neglected minor in that her environment was injurious to her welfare) is not supported by and is contrary to the manifest weight of the evidence. Accordingly, we reverse both orders and remand the cause to the trial court.

This case presents a novel factual situation in that Carmen and her mother, Mrs. Melendez, were both nonresidents of the State of Illinois on December 20, 1972, the date the petition for adjudication of wardship was filed. Mrs. Melendez, Carmen, and other members of Carmen’s family permanently resided in Springfield, Massachusetts. It appears from the record that sometime late in 1972, Mrs. Melendez and her children came to Chicago for the purpose of visiting Anita Lebrón, the child’s, aunt. It was during this visit that Carmen was admitted to the Illinois Masonic Hospital. Dr. Frederick G. Berlinger, the treating physicían, testified that Carmen was hospitalized for a complication of diabetes known as diabetes acidosis. Upon the stabilization of her condition, Carmen was released from the hospital.

During the first hospitalization of Carmen, Lois Führer, a registered nurse who taught classes for diabetic patients, met with Carmen to instruct her on the care of her diabetic condition. Ms. Führer testified that Carmen, who was then 8 years of age, seemed very knowledgeable about her condition and the manner of treating it. Carmen informed her that she had attended a summer camp for diabetic children while in the custody of her mother. Ms. Führer testified that she had supervised Carmen’s insulin injection technique and considered it very good, and also had supervised Carmen in the testing of her urine. According to the testimony of Ms. Führer, Carmen knew that it was imperative that she report certain symptoms if experienced by her. In addition, her testimony revealed Carmen had knowledge of the principles of a proper diabetic diet.

Ms. Führer was unsuccessful in her attempts to contact Mrs. Melendez regarding her child’s medical problem. However, upon discovering that Carmen would be staying with her aunt when released from the hospital, Ms. Führer contacted her aunt, who subsequently attended a seminar on dietary management for the diabetic and received printed literature on the disease. Ms. Führer testified that in speaking with Carmen’s aunt, she was informed that she was a nurses’ aid, familiar with the testing of urine in such cases.

After Carmen was released from the hospital, she was visited by Lee Bovian from the Visiting Nurse Association, upon the request of the Illinois Masonic Hospital. At her initial visit on December 11, 1972, Ms. Bovian reported that Carmen did not have her diet list, nor did she have the proper urine testing equipment, consisting of tablets usually provided to patients upon their release from the hospital. (The testimony was uncertain as to whether such items were provided to Carmen.) On this occasion, Carmen had already administered her insulin injection. Ms. Bovian returned the following day for the purpose of observing Carmen administer the prescribed dosage of insulin and to supply Die dietary list. At this second visit, according to the testimony of Ms. Bovian, Carmen used the proper procedure in administering the prescribed dosage of insulin.

On that same day of Ms. Bovian’s second visit, Carmen was scheduled for a routine “follow-up examination” by Dr. Berlinger. He testified that she was once again in a state of diabetes acidosis, and he readmitted her to the hospital. When asked his opinion as to what was the cause of Carmen’s relapse in so short a period of time, Dr. Berlinger responded,

“Well, there can be any number of causes for a diabetic to go out of control, but in such a short time, four days after leaving the hospital in excellent shape, * * * the most common cause of that is the misuse of insulin at home.”

Upon readmitting Carmen to the hospital for treatment of the relapse of diabetes acidosis, a suspected case of child neglect was reported by the hospital. Pursuant to the report, the petition for adjudication of wardship was filed, alleging that Carmen’s environment was injurious to her welfare in violation of section 2 — 4 of the Juvenile Court Act (Ill. Rev. Stat. 1971, ch. 37, par. 702 — 4(1) (b)).

On the basis of the above testimony, the trial judge entered a finding that Carmen was a neglected child within the said statute in that her environment was injurious to her welfare, and accordingly declared her a neglected minor, placing her in the custody of Richard S. Laymon of the Illinois Department of Children and Family Services.

Before the adjudicatory hearing, Mrs. Melendez had returned, with the other members of the family, to her permanent residence in Massachusetts. Counsel for the respondent presented a motion requesting an order that the State provide travel funds, enabling Mrs. Melendez to return to Chicago for the purpose of testifying at the adjudicatory hearing. This motion was denied by the trial court. Counsel for the respondent argued that because Mrs. Melendez was an indigent welfare recipient in Massachusetts, she was without the financial means to have the opportunity to be heard at the hearing as provided by statute (Ill. Rev. Stat. 1971, ch. 37, par. 701 — 20 (1)):

“Except as provided in this Section and paragraph (2) of Section 5 — 1, the minor who is the subject of the proceeding and his parents, guardian, legal custodian or responsible relative who are parties respondent have the right to be present, to be heard, to present evidence material to the proceedings, to cross-examine witnesses, to examine pertinent court files and records and also, although proceedings under this Act are not intended to be adversary in character, the light to be' represented by counsel. At the request of any party financially unable to employ counsel, the court shall appoint counsel.”

It is contended that the denial of the motion for travel funds effectively denied Mrs. Melendez. of the rights afforded her by virtue of this statute. Respondent contends that the denial of this motion rendered the statutory rights of Carmen’s mother meaningless in this situation, and in essence, constituted a denial of due process and equal protection. -

Immediately following the trial court’s finding of neglect, the dispositional hearing was held to determine whether guardianship should be established in Illinois or in Massachusetts. Ms. June Shore, who had been assigned to the case by the Department of Children and Family Services, testified that her attempts to contact the aunt with whom Carmen and her mother had been visiting prior to her relapse were futile. Ms. Shore had communicated with the Massachusetts’ agencies that had contact with Mrs. Melendez, and had received a written report from the public aid department in Springfield, Massachusetts. Over respondent’s objection, Ms. Shore was allowed to summarize the contents of the report, stating that Mrs. Melendez had been hospitalized at some prior point in time for a suicide attempt. The report, as summarized by Ms. Shore, also indicated that Mrs. Melendez had in the past lived with several different men and that her son had been sexually abused. The agency’s report revealed that Mrs. Melendez had voluntarily placed Carmen in a foster home. The report, it appears from the record, was silent as to the time and circumstances of this voluntary placement. None of the testimony given by Ms. Shore was verified or substantiated by further evidence, nor was the report submitted into evidence.

Further, Ms. Shore was allowed to testify, over the respondent’s objection, to a telephonic communication with Dr. Pomerantz, Assistant Regional Mental Health Administrator in Massachusetts, who had occasion to evaluate Mrs. Melendez, but had never examined Carmen. Ms. Shore stated that in the opinion of Dr. Pomerantz, Mrs. Melendez was emotionally in a better position without Carmen and that the child and the mother were destructive of each other in their interaction. Counsel’s motion to strike this testimony in the absence of a waiver of his client’s psychiatrist-patient privilege was denied by the trial court. This testimony of Ms. Shore relating the opinion of Dr. Pomerantz was unequivocally contradicted by an affidavit executed by Dr. Pomerantz, which subsequently was submitted to the court with a motion for a new trial. In the affidavit, Dr. Pomerantz stated that, in his opinion, “[I]f the child returns or does not return, it will not affect Mrs. Melendez’s basic psychiatric condition in any way.” In addition, the affiant stated, “At no time did I obtain the permission of Mrs. Melendez to release any information concerning her treatment by me.”

With regard to this testimony at the dispositional hearing, as distinguished from the adjudicatory hearing, it should be noted that the Juvenile Court Act (Ill. Rev. Stat. 1971, ch. 37, par. 705 — 1(1)) provides:

“After adjudging the minor a ward of the court, the court shall hear evidence on the question of the proper disposition best serving the interests of the minor and the public. All evidence helpful in determining this question, including oral and written reports, may be admitted and may be relied upon to the extent of its probative value, even though not competent for the purposes of the adjudicatory hearing.”

Pursuant to the State’s request that the court interrogate Carmen concerning her mother, preference for placement in Illinois or in Massachusetts, and her feelings about her present placement, the court conducted an in camera discussion with Carmen. In this discussion, Carmen said that she loved her mother and desired to see her. (She had not had any contact with her mother since Mrs. Melendez returned to Massachusetts.) In response to the court’s inquiry as to whether she wanted to live with her mother someday, Carmen answered that she did, even though she did not care for her mother’s husband. Regarding her preference for placement, Carmen’s statements appear to be somewhat inconsistent. She responded that she would like her mother to visit her if placed in a foster home. On the other hand, Carmen answered that she would prefer living in her present foster home rather than being placed in a foster home in Massachusetts, which would facilitate visitation by her mother.

At the termination of the proceedings, the court vacated the temporary custody order and appointed Richard S. Laymon of the Department of Children and Family Services guardian with the right to place. This agency was instructed by the court to use its best efforts to reestablish contact between Carmen and her mother. Presently, Carmen is residing in a foster home in Illinois.

Having stated the facts, we now consider whether the adjudicatory finding that Carmen Gonzales was a neglected minor is supported by or is contrary to the manifest weight of the evidence. The statute under which the petition for adjudication of wardship was filed (Ill. Rev. 1971, ch. 37, par. 702 — 4) defines a neglected minor as one under 18 years of age:

“(a) who is neglected as to proper or necessary support, education as required by law, or as to medical or other remedial care recognized under State law or other care necessary for his well-being, or who is abandoned by his parents, guardian or custodian; or
(b) whose environment is injurious to his welfare or whose behavior is injurious to his own welfare or that of others.” (Emphasis ours.)

Specifically, in the case of Carmen Gonzales, we must determine whether the finding that her environment was injurious to her welfare is contrary to the manifest weight of the evidence. The proper standard of proof applicable in an adjudication of neglect or dependency is a preponderance of the evidence, not proof beyond a reasonable doubt. (Ill. Rev. Stat. 1971, ch. 37, par. 704 — 6.) The burden of proof is, of course, on the State.

As stated in Petition of Breger v. Seymour (1966), 74 Ill.App.2d 197, 199-200, 219 N.E.2d 265:

“It is well established that parents have an inherent right to the society and custody of their own children. In re Johnson v. Johnson, 30 Ill.App.2d 439, 444, 174 N.E.2d 907. The State may only interfere with that inherent right where it has been forfeited by the parents, either through their misconduct, or their inability to provide proper financial or other care for their children. In re Ramelow, 3 Ill.App.2d 190, 198, 121 N.E.2d 41; In re Johnson v. Johnson, ibid., at 445.”

The natural parent has the superior right to the custody of his child, but such right must always yield to the welfare and best interest of the child. People ex rel. Pace v. Wood (1964), 50 Ill.App.2d 63, 200 N.E.2d 125, 127, citing Giacopelli v. Florence Crittenton Home (1959), 16 Ill. 2d 556, 158 N.E.2d 613.

The State’s interest in this particular case in which the parent is a non-resident is established in that the State, as parens patriae, has a responsibility to care for and protect any child within its borders. (People ex rel. Wallace v. Labrenz (1952), 411 Ill. 618, 624, 104 N.E. 2d 769.) Consequently, the legal residence of the child does not technically affect the jurisdiction of the court, so long as the child is physically present within the State. (In re Finch (1963), 40 Ill.App.2d 18, 189 N.E.2d 678; 27 I.L.P. Minors § 14 (1956). See also 1948 Op. Atty. Gen. 78, and Ill. Rev. Stat. 1971, ch. 37, par. 702 — 6(1).) We note, however, that in the present factual situation the State’s interest is indeed minimal.

In determining what constitutes sufficient evidence supporting a finding of neglect, the court is without specific guidelines. At best, nebulous language, such as “‘welfare’, best interest’, ‘good reason and ‘fitness’ have been discussed and applied in a multitude of circumstances, a variety of relationships and, depending upon the type of proceedings, with varying emphasis.” (In re Guardianship of Nichols (1966), 70 Ill. App.2d 376, 380, 216 N.E.2d 690.) There is no fixed standard. Indeed, this court has approved of a flexible standard of proof in order that different factual situations may be accommodated. In re Interest of Stacey (1973), 16 Ill.App.3d 179, 183, 305 N.E.2d 634.

The court recognizes that it is not the function of this court to substitute its judgment for that of the trial court, unless the trial courts findings are contrary to the manifest weight of evidence. (In the Interest of Garmon (1972), 4 Ill.App.3d 391, 395, 280 N.E.2d 19; citing Winslow v. Lewis (1957), 15 Ill.App.2d 65, 144 N.E.2d 782; Petition of Breger v. Seymour (1966), 74 Ill.App.2d 197, 219 N.E.2d 265; People v. Hackman (1971), 1 Ill.App.3d 1030, 275 N.E.2d 488; In the Interest of Stacey (1973), 16 Ill.App.3d 179, 305 N.E.2d 634.) After examining the facts of this case, we conclude, however, that the adjudicatory finding (that Carmen Gonzales was a neglected child in that her environment was injurious to her welfare) is not supported by and is contrary to the manifest weight of the evidence produced at the hearing. The evidence at that hearing demonstrated only that Carmen Gonzales was treated for diabetes acidosis twice within a relatively short period of time. No evidence was produced from which one could reasonably infer 'that the causative factor of this medical condition was her environment. It is a non sequitur to find that because Carmen had a severe diabetic condition her environment was injurious to her welfare. The mere fact of the severity of her condition does not give rise to an inference of parental neglect.

Although Dr. Berlinger testified that the most common cause of such a relapse is the misuse of insulin at home, he also conceded that there are many other possible causes for such a condition, especially in children. In light of Ms. Bovians testimony that she observed Carmen properly administer the prescribed dosage of insulin on the day Dr. Berlinger readmitted her, it is difficult to conclude that misuse of insulin in the home produced the relapse of the condition. As to the absence of the proper urine testing equipment and the lack of a dietary list in the home, this evidence is not sufficient to support a finding of neglect since there was no evidence that she had been given these items upon release from her first hospitalization. Further, according to the testimony of Ms. Führer, Carmen herself was aware of the principles of a proper diabetic diet, and her aunt had attended a class on dietary management for the diabetic. The State’s contention that parental neglect in failing to provide a proper diet for the child resulted in the relapse of Carmen’s condition is wholly unsubstantiated by the record.

Since we conclude that the trial court’s finding is not supported by and is contrary to the manifest weight of the evidence, it is not necessary to reach the other issues presented by respondent on this appeal.

Accordingly, the orders are reversed and the cause is remanded to the circuit court for the entry of an order dismissing the petition and discharging the minor from custody.

Reversed and remanded.

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