author: MR. PRESIDING JUSTICE BURKE

text:
    Milburn Bridges, Plaintiff-Appellee, v. Ford Motor Company, a Corporation, Cunningham-Limp Company, a Corporation, and Harold S. Alt, d/b/a William S. Alt & Son, Defendants-Appellants.
    Gen. No. 51,672.
    First District, Second Division.
    December 10, 1968.

      William H. Symmes, John M. O'Connor, Jr., of Kirkland, Ellis, Hodson, Chaffetz & Masters, of Chicago, for appellant.
    James A. Dooley, of Chicago, for appellee.
   MR. PRESIDING JUSTICE BURKE

delivered the opinion of the court.

This was an action to recover damages for personal injuries sustained by plaintiff when he fell from a steel truss at a construction site. The jury returned a verdict in favor of plaintiff and against all defendants in the amount of $105,000, and judgment was entered thereon. Defendants appeal.

Prior to November 27, 1956, defendant Ford Motor Company (Ford) engaged defendant Cunningham-Limp Company (Cunningham), a building contractor, to erect a plant building upon property owned by Ford in Indianapolis, Indiana. Plaintiff’s employer, Crawford Sprinkler Company (Crawford), was engaged as subcontractor to install the fire sprinkling system in the plant and the painting contract was let to defendant William S. Alt & Son (Alt).

General control of the construction work was exercised by Ford, Cunningham and the architect of the building. The evidence reveals that weekly meetings were held, attended by representatives of all subcontractors actively engaged in the construction and also by representatives of Ford, Cunningham and the architect. The purpose of the meetings, which were presided over by the representatives of Ford and Cunningham, was to determine the status and progress of the construction and to generally decide upon what work was to be completed by specified dates. The subcontractors’ work was coordinated to avoid interference by one craft with another, and schedules were drawn instructing the subcontractors where and when they were to work. There is further evidence that Ford had safety men at the construction site who would inspect equipment and generally oversee the work being done.

At the time of plaintiff’s accident the skeleton, or steel framework, and the roof of the building had been completed. Vertical steel columns supported the roof and the horizontal steel trusses which spanned the building. Four such vertical columns formed a rectangle which was denominated a bay, consisting of 2,000 square feet. The entire building was divided into four large areas, each such area consisting of 100 bays.

Alt was engaged to paint portions of the plant, including the steel trusses, and it was determined the spray method of painting would be employed. Substantial confliet exists in the evidence with respect to the manner in which the paint was being applied by Alt. Defendants’ witnesses in general testified that the paint was being sprayed in a fine, mist-like spray, from 12 to 18 inches away from the surface being painted. Plaintiff’s witnesses, including men from crafts other than Crawford who had been employed in the construction of the building, testified that the paint was being applied in a pencil-lead sized stream which at times would reach 20 to 30 feet from the spray gun nozzle. There is evidence that much of the area in which the painters were working was covered with paint, including tools, etc., on the floor, light bulbs, and the clothing of workmen of other crafts who were in the immediate area being painted. There is evidence that the paint, when applied to a vertical surface, would run down the side of that surface and form a pool or puddle on an adjacent horizontal surface. The top of the puddle would then dry, or “skim” as the workmen referred to the condition, leaving a thick, wet portion of paint underneath, but having the overall appearance of a totally dry area of paint. The foreman of the heating subcontractor testified that he made complaint to Cunningham and Alt of the manner in which the painters were performing their work and further requested that he be advised in advance as to where the painters were to be working so that he could schedule his work and “get the job done.” On the day of plaintiff’s accident Alt’s men were painting in an east-to-west direction in the building and the Crawford crew with whom plaintiff worked was installing eight-inch sprinkler mains near the inside roof of the building in a north-to-south direction. There is evidence that plaintiff’s crew commenced work in a bay which was then unpainted and that Alt’s painters later moved into the same bay and began “painting around” the sprinkler crew. There is contrary evidence that an Alt foreman; a short while prior to plaintiff’s accident, witnessed the crew with whom plaintiff was working attempting to set up ladders against freshly painted trusses and cautioned them to work in a different bay due to the fresh paint; this was denied by plaintiff and his foreman and co-workers.

There is evidence that the Crawford crews normally employed devices termed “rolling scaffolds” from which they installed the sprinkler pipe, but that on November 27, 1956, the date of the accident, the floor of the building was covered with building materials, forcing the plaintiff’s crew to use the steel trusses, ladders and movable “kickboards” or “catwalks” to install the pipes. The ladders were used for access to the trusses and kickboards from the floor. It appears that the lower lip of the steel trusses had the shape of an inverted “T” and that there was enough space on the horizontal portion of the lip to hold a man’s foot. Crawford’s men walked on the lip of the trusses to install the pipes, or placed the kickboards on the lips of parallel trusses when they had to work in the center of a bay. Prior to his accident plaintiff was working on a kick-board installing a length of pipe. He attempted to step onto the lower lip of the truss, either to secure an end of pipe or to descend to the ground, when his foot slid on newly painted steel. Plaintiff fell 20 feet to the concrete floor below, sustaining substantial injuries to his head.

Plaintiff’s foreman and three other disinterested witnesses, including the deputy sheriff who investigated the accident, testified that shortly after the accident they inspected the area on the steel truss where plaintiff placed his foot and observed a puddle of paint which had skimmed or dried on the surface. The skim had been torn off, exposing the wet paint underneath.

Defendants first maintain that judgment should have been entered for them as a matter of law because plaintiff was guilty of contributory negligence when he stepped onto the newly painted steel truss and further because defendants committed no wrongful act which caused plaintiff’s injuries.

It should be noted at the outset that the law of the State of Indiana, the situs of the accident, must govern the substantive rights and obligations of the parties involved. Beers v. Indianapolis Forwarding Co., 43 Ill App2d 303, 308, 193 NE2d 473. Although this action was initially instituted under a dual theory of defendants’ violation of the Indiana Dangerous Occupations Act and the Indiana Scaffold Act, the latter theory was abandoned and reference thereto stricken from the pleadings.

Section 20:304 of the Indiana Dangerous Occupations Act (Acts 1911, c 236, § 4, p 597; Burns’ Ind Stats Ann, 1964 Repl, c 3) provides in pertinent part:

“It is hereby made the. duty of all owners, contractors, subcontractors, corporations, agents or persons whatsoever engaged in the care, operation, . . . construction, erection, . . . painting, ... of any building, . . . factory or business of whatsoever kind, or in the erection, repair or operation or management of any machinery, mechanism, or contrivance, ... or in the manufacture, operation, preparation, transportation, production, marketing or use of any dangerous or other appliance, substance, commodity or article, to see and to require that all metal, wood, ... all contrivances, and everything whatsoever used therein are carefully selected, inspected and tested, so as to detect and exclude defects and dangerous conditions, and that all scaffolding, staging, hoists, ... or temporary or permanent structures, machinery, appliances, tools, mechanisms and all contrivances used are amply, adequately and properly constructed, to bear all weight and adapted to perform the services and meet the requirements for which they are designed or used with safety, . . . ; and, generally it shall be the duty of all owners, managers, operators, contractors, subcontractors, and all other persons having charge of, or responsible for, any work, mechanism, machinery, appliance, building, factory, plant, means, employment or business of whatsoever nature involving risk or danger to employees, or to the public, to use every device, care and precaution which it is practicable and possible to use for the protection and safety of life, limb and health, limited only by the necessity for preserving the reasonable efficiency of such structure, ways, work, plant, building, factory, elevator, cars, engines, machinery, appliances, apparatus, or other devices or materials without regard to additional cost of suitable materials or safety appliances, or safe conditions or operations, the first concern being safety to life, limb and health.”

It is apparent that the Indiana statute is broad enough to impose the duty upon all three defendants to see that no defects in any phase of the construction operations, including the scheduling of the work and the painting of the building, should involve a risk of danger to the men on the job. There is evidence that Ford retained control of the construction work by means of the weekly meetings, setting up of work schedules, and the employment of safety men at the job site. Likewise there is evidence that Cunningham had direct control over the construction operations not only as the general contractor, but also in the participation with Ford in the scheduling of the work on the building. Finally, there is evidence that Alt improperly applied the paint, causing it to form in puddles on surfaces used by men of other crafts in the performance of their duties. Under these circumstances the jury could properly have found all three defendants fall within the purview of the statute and to have breached the respective duties imposed thereby. Although defendants state, without discussion, that the statute did not apply to them inasmuch as they were “independent contractors” whereas the statute applied solely to “employers in charge,” whether or not the statute applied to them was a question of fact, on the evidence, for the jury to determine.

Plaintiff contends that the obligations imposed by the foregoing statute are absolute, so that liability rests with the party who violates the statute irrespective of the care, or lack thereof, on the part of the injured party. The cases relied upon by plaintiff in this regard are not in point inasmuch as they involve employer-employee situations and an Indiana statute creating absolute liability in those situations. ' See Gamble v. Lewis, 227 Ind 455, 85 NE2d 629; Larkins v. Kohlmeyer, 229 Ind 391, 98 NE2d 896. On the contrary, it would appear that the Indiana courts by implication, permit such defenses as contributory negligence, assumption of the risk, etc., to bar recovery in actions predicated upon the Indiana Dangerous Occupations Act. See Hagerman Const. Corp. v. Weber, — Ind —, 221 NE2d 901, which reversed — Ind App —, 202 NE2d 758, for the giving of an erroneous instruction on contributory negligence.

Nevertheless, the question of plaintiff’s contributory negligence was one of fact for the jury, and the record reveals sufficient evidence to warrant the jury in finding plaintiff free from contributory negligence. There is evidence that plaintiff’s crew was the first craft in the bay on the day he was injured, and that Alt’s painting crew later moved into the same bay, indicating a conflict in the scheduling of the work by Ford and Cunningham. There is evidence that Alt’s men were applying the paint in heavy quantities, resulting in the paint forming into puddles on horizontal areas of the steel trusses, and that skimming would occur, thereby creating a potentially dangerous condition. There is evidence that plaintiff and his co-workers were required to employ ladders, kickboards and the steel trusses in order to perform the installation of the sprinkler pipes on the day of the accident because rolling scaffolds were not employable due to the building materials scattered about the floor below. There is evidence that a Ford safety man was nearby at a time when the Alt crew was painting 10 to 30 feet from plaintiff’s crew. There is evidence that plaintiff’s foot came into contact with a puddle of paint, which had dried on top, as he attempted to step onto the truss, causing him to fall. Under the circumstances the jury could reasonably have found that plaintiff’s actions did not constitute contributory negligence.

Defendants contend that the trial court erred in failing to require plaintiff to submit a jury instruction accompanying mortality tables offered by plaintiff. Defendants maintain it was the duty of plaintiff, not defendants, to submit such an instruction inasmuch as plaintiff offered the mortality tables. In support of their position in this regard defendants rely upon the case of Avance v. Thompson, 387 Ill 77, 55 NE2d 57, and the pocket part comment to IPI 34.04 which deals with jury instructions to be given in cases where mortality tables are offered into evidence. The comment states that the court in Avance “indicated that it was the responsibility of the party offering the tables to accompany the offer with a proper instruction to the jury.” A reading of the Avance case, however, reveals no such “indication” on the part of the court. On the contrary, the court in Avance, at pages 84 and 85 of that opinion, after stating that the jury should be carefully instructed in this regard, alluded to the existing rule that a party who fails to request at trial that an instruction be given cannot complain on appeal of the failure to give that instruction. The court then went on to state that failure to give such an instruction would be prejudicial, but that it would not reverse on such matter alone, and that it was expressing its views in this regard for the benefit of the parties in the case inasmuch as the judgment was being reversed on other grounds and remanded for a new trial. Defendants here failed to request an instruction to accompany the tables offered by plaintiff and cannot now be heard to complain that failure to give such an instruction was error. Ill Rev Stats 1967, c 110, par 67(3); Sesterhenn v. Saxe, 88 Ill App2d 2, 232 NE2d 277.

Defendants also contend that the trial court should not have permitted plaintiff to introduce evidence of custom with respect to the application of paint by the spray gun method and the scheduling of work among the various crafts participating in the construction of a building, inasmuch as it was a tactic on the part of the plaintiff to prolong the trial. Both Illinois and Indiana allow the introduction of such evidence where otherwise pertinent to the issues in the case. Darling v. Charleston Hospital, 33 Ill2d 326, 211 NE2d 253; Southern Indiana Ry. Co. v. Davis, 32 Ind App 569, 69 NE 550. The evidence introduced by plaintiff in this respect was germane to his case. Defendants do not contend that the witnesses who testified as to custom were not qualified, nor do they argue in what manner this evidence harmed them other than to state that it was “prejudicial” and “particularly harmful.” It should be noted that defendants also introduced substantial evidence of custom and practice in the construction industry. We are of the opinion that the trial court properly allowed plaintiff to introduce this evidence.

Defendants maintain the trial court erred in giving several plaintiff’s instructions to the jury. With respect to Instruction #21, defendants’ counsel at trial specifically stated he had no objection to the instruction when it was offered. With regard to Instruction #15 dealing with future pain and suffering, there was evidence adduced at trial supporting this instruction. Defendants object to Instruction #3, which deals with circumstantial evidence, on the ground that the evidence conclusively showed plaintiff was injured as a result of his own contributory negligence; the record does not support this position. With respect to Instruction #19, defendants cannot now complain since their objection to the giving of that instruction was general. Irwin v. Omar Bakeries, Inc., 48 Ill App2d 297, 303-304, 198 NE2d 700.

There was no error in giving plaintiff’s Instruction #11 inasmuch as it informed the jury that negligence on the part of plaintiff’s employer or his coemployees could not be imputed to plaintiff. Southern Indiana Ry. Co. v. Davis, 32 Ind App 569, 69 NE 550.

Defendants challenge Instruction #18 on the ground that it informed the jury that a violation of the Indiana Dangerous Occupations Act was negligence per se rather than simply prima facie evidence of negligence. The case was submitted to the jury on the question of plaintiff’s contributory negligence and we are of the opinion that defendants were not prejudiced by the giving of this instruction.

Defendants object to plaintiff’s Instruction #20 on the ground that it “sought to impose liability for alleged acts which could not, and did not, constitute a cause of action,” namely, the improper scheduling of the work, the manner of application and amount of paint which was applied, building materials on the floor, and the like. The instruction finds support in the evidence and, together with the respective duties owed by the defendants, defines the roles played by each defendant and their deviations from the customs in the construction industry. It was not error to give this instruction.

The final point raised by defendants is that the amount of the verdict is excessive; they ask this court to order a remittitur. Plaintiff was a man of 32 years of age when he fell 20 feet onto a concrete floor. He was knocked unconscious, was barely breathing and had blood running from his eyes, ears and nose. There is evidence that he thereafter suffered prolonged unconsciousness, paralysis of an eye muscle, cerebral contusion, basilar skull fracture, permanent deafness in one ear, permanent brain damage (which one doctor testified plaintiff had adjusted to but not 100%), and prolonged dizziness, forgetfulness and fainting. Plaintiff spent five weeks in the hospital and testified that it was not until some four to six weeks after his release that he was able to remember the circumstances surrounding the accident. He did not return to work until 18 months after the accident, and although he was employed at the time of trial, his duties were simple, such as laying and arranging pipe on the ground and preparing them for the other workmen to install; plaintiff’s treating physicians ordered him not to work in high places. Plaintiff’s foreman testified that plaintiff was nervous, forgetful and sometimes walked unsteadily. There is sufficient evidence in the record to support the amount of the verdict.

For these reasons the judgment is affirmed.

Judgment affirmed.

MCNAMARA and LYONS, JJ., concur.


source: Caselaw Access Project

author: MR. PRESIDING JUSTICE McCORMICK

license: Public Domain

text:
    In the Matter of the Estate of Joseph Amschl, Deceased. Donald J. Amschl, Claimant-Appellant, v. Albert C. Linenthal, Executor-Appellee.
    Gen. No. 52,508.
    First District, Fourth Division.
    December 11, 1968.
    Rehearing denied January 16, 1969.

      Richard B. Caifano and Melvin B. Lewis, of Chicago for appellant.
    Linenthal & Linenthal, of Chicago (Albert C. Linenthal, of counsel), for appellee.
   MR. PRESIDING JUSTICE McCORMICK

delivered the opinion of the court.

Donald J. Amschl, claimant, filed a claim against Albert C. Linenthal, executor of the estate of Joseph Amschl, alleging that he was entitled to one-half of the estate. The trial court granted the executor’s motion to strike and dismissed the complaint with prejudice. Both the claimant and the executor agree that the only question before this court is the sufficiency of the amended claim to state a cause of action.

Joseph Amschl died on June 27, 1966; his wife, Anna, had predeceased him on November 27, 1963. The only heirs were Lorrelle M. Bartel, a daughter, and a son, Donald Amschl, the claimant. Joseph’s will was dated December 17, 1963. By that will he left $5,000 to his son, Donald; established a $50,000 educational trust for his grandchildren; and left the remainder in trust for his daughter, Lorrelle. The will was probated and Albert C. Linenthal was appointed executor. His preliminary evaluation of the estate was $325,000. The claimant filed a claim for approximately $162,500.

The claim as amended recited that Anna and Joseph Amschl had agreed upon a testamentary plan that each would leave all his property to the other, conditioned on survival, and failing survival, to their two children in equal parts, so that ultimately said children would each receive half of the total estate of Anna and Joseph. It was further alleged that in pursuance of the agreement Joseph and Anna each had properly executed a will carrying the testamentary plan into effect, and that the will signed by Anna had been in full force and effect at the time of her death. By its provisions it was alleged that Anna had bequeathed all her property to Joseph, who had acquired all of Anna’s property on her death by reason of said agreement. Claimant further alleged that he was unable to append a copy of the will for the reason that it was withheld and secreted by Lorrelle and others.

The executor demanded a bill of particulars, which the claimant provided. By that bill of particulars claimant stated that he did not know the exact date of the agreement between Anna and Joseph, but that it had been made about the time of the formation of the family business 20 years before; that the agreement had been both oral and written; that three other persons, including the executor, were present when the agreement was made. He further stated that Anna had left a will, but that it had never been filed for probate, as far as he knew, and that the executor named in her will was the same as the executor named in the will of Joseph. He stated that Joseph had acquired from Anna at her death one-half of the family business and sundry other properties; that he, the claimant, had first learned of the agreement from Joseph and Anna at the time it was made.

The claimant served a subpoena upon Lorrelle, calling on her to produce the will of Anna Amschl and records concerning the property owned by Anna at the time of her death. He also issued a deposition subpoena to the persons in control of the family business, asking for records showing ownership holdings at the time of its formation and at the time of Anna’s death.

The executor filed a motion to dismiss the claim which was heard before a magistrate on May 4, 1967, pleading the Statute of Frauds, failure to append a written instrument, failure of consideration, failure to state a cause of action, and the bar of the Statute of Limitations. In that hearing, when the claimant argued that .the will alleged to have been made by Anna Amschl was sufficient consideration and was a written instrument, the court made the extraordinary statement, “When we talk about a will we are not talking about a piece of paper; one that is admitted to probate is what we are talking about.”

The court then sustained the motion to strike the claim and allowed the claimant time to file an amended claim. The claimant did file an amended claim, and again a motion to strike was made by the executor. The motion was set and argued before a judge on June 26, 1967. The executor argued that the new claim was not an amended claim. The court said it did not make any difference what it was termed.

Two days after filing the amendment, claimant served notice of his motion for leave to take the depositions previously requested and to pursue other discovery. The next day the executor served notice of a second motion to strike the claim, returnable at the same time as claimant’s motion for discovery. These motions were argued before a different judge from the one who originally struck the claim.

The executor’s motion to dismiss relied upon the Statute of Frauds, failure of consideration, lack of jurisdiction, Statute of Limitations, and res adjudicaba. The motion was argued as a matter of law, and the court thereupon found that the claim as amended did not state a cause of action, and ordered that it be stricken with prejudice and taken for naught. On the same day, June 26, 1967, the court denied the motion of claimant for discovery. From these orders this appeal is taken.

Among other grounds for dismissing the claim, the executor relies upon the Statute of Frauds, and argues in this court that the alleged agreement between Anna and Joseph could not be considered since it had not been attached to the claim or produced by the claimant. However, we must note that the claim recited that the claimant’s parents had agreed upon a testamentary plan whereby each child would receive one-half of the estate, and that pursuant thereto Anna made a will by which Joseph acquired her entire estate. If the allegations are true (all allegations in the claim are admittedly true on a motion to strike), Anna’s will was a written instrument. It is alleged that she made a will, and in any case, the making of the will in accordance with the alleged agreement — whether oral or written — would be sufficient performance to take the matter from under the Statute of Frauds. In Anastaplo v. Radford, 14 Ill 2d 526, at 537, 153 NE2d 37, the court said, concerning the Statute of Frauds: “The statute is never available as a defense where there has been sufficient performance by one party in reliance upon the agreement.”

The executor argues that it has not been alleged that any consideration had passed from any of the parties referred to which would support the alleged agreement; however, the allegation of the execution of wills by Joseph and Anna pursuant to their agreement was adequate consideration. It has been held that the mutual love, respect and faith presumed to exist between Joseph and Anna would be adequate consideration for such an arrangement. Curry v. Cotton, 356 Ill 538, 191 NE 307.

The executor’s argument that the claim should be dismissed because of failure to set out an instrument in writing can be disregarded inasmuch as the claimant complied with section 36 of the Civil Practice Act by stating under oath facts showing that the instrument was not accessible to him.

A great deal of the executor’s argument, both before the trial courts and in this court, is not clearly understandable. Apparently he took the view that in order to prevent the dismissal of a claim for failure to state a cause of action, the question could be raised as to whether or not the allegations in the claim had been proved. That is not the law. The question of evidence or proof has nothing to do with this case. The sole question before this court is: did the amended claim state a cause of action ? Disregarding entirely the argument of the executor with reference to proof, it is our opinion that the amended claim did state a cause of action, and the orders entered in the trial court must be reversed and the cause remanded with directions to adjudicate the merits of the claim and grant full rights for discovery.

Reversed and remanded.

DRUCKER and ENGLISH, JJ., concur.

       Ill Rev Stats 1967, c 59, § 1. That no action shall be brought, . . . upon any agreement that is not to be performed within the space of one year from the making thereof, unless the promise or agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or some other person thereunto by him lawfully authorized.
      § 2. No action shall be brought to charge any person upon any contract for the sale of lands, tenements or hereditaments or any interest in or concerning them, for a longer term than one year, unless such, contract or some memorandum or note thereof shall be in writing, and signed by the party to be charged therewith, or some other person thereunto by him lawfully authorized in writing, signed by such party.
      Ill Rev Stats 1967, c 26, § 2-201. Formal Requirements; Statute of Frauds. (1) Except as otherwise provided in this Section a contract for the sale of goods for the price of $500 or more is not enforceable by way of action or defense unless there is some writing sufficient to indicate that a contract for sale has been made between the parties and signed by the party against whom enforcement is sought or by his authorized agent or broker. A writing is not insufficient because it omits or incorrectly states a term agreed upon but the contract is not enforceable under this paragraph beyond the quantity of goods shown in such writing.


author: MR. JUSTICE DAVIS

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Donald Anderson, Defendant-Appellant.
    Gen. No. 67-142.
    Second Judicial District.
    December 19, 1968.

      Edwin L. Douglas, Public Defender, of Wheaton, and John O. Vogel, Deputy Public Defender, of Glen Ellyn, for appellant.
    William V. Hopf, State’s Attorney of Du Page County, of Wheaton, and Frank Wesolowski, Jr., Assistant State’s Attorney, for appellee.
   MR. JUSTICE DAVIS

delivered the opinion of the court.

The accused, defendant Donald Anderson, was indicted for the offense of armed robbery, was tried, and found guilty by a jury verdict, upon which judgment was entered, sentencing him to serve not less than ten nor more than twenty years in the penitentiary. The issue upon appeal is whether the People proved beyond a reasonable doubt that the defendant was criminally responsible for his conduct at the time of the commission of the offense.

The evidence proved beyond a reasonable doubt that on November 13, 1965, the defendant, with gun in hand, robbed the Abbott Liquor Store, 4936 Main Street, Downers Grove, Du Page County, of currency and cash approximating $750, by taking this sum from the person of James Uhler, owner and operator thereof. He first entered the store shortly after 8:00 p. m., took a bottle of Coke from the cooler, and walked to the front of the store with it. At that time, Mr. Uhler, William Gurican, an employee, and certain customers were in the store.

The defendant told Mr. Uhler that he had no money, left the Coke bottle on the store counter and went outside, ostensibly to get money from his wife. In about ten or fifteen minutes he returned, took a quart of beer from the cooler, placed the bottle on the check-out counter, and looked at other merchandise until the remaining customers left the store, and the employee entered the walk-in cooler at the rear of the store. He then, at gunpoint, demanded and received the money in question from Mr. Uhler, who was then operating the cash register and check-out counter. The defendant was adequately identified by Mr. Uhler and his employee, and by the fingerprints upon the beer bottle. About six weeks later he was apprehended in California and returned to Du Page County.

On April 5,1966, there was a finding that the defendant was incompetent to stand trial and he was delivered to the Department of Mental Health of the State. On October 1,1966, he received an absolute discharge and was returned to Du Page County. After further examinations by psychiatrists, he was brought to trial on March 13,1967.

The defendant called two psychiatrists — Doctors Werner Tuteur and August Stiller — as witnesses. Doctor Tuteur examined the defendant on February 27,1966, and on February 21, 1967. Doctor Stiller examined him on March 26, 1966. Neither made psychological tests, but rather, interviewed the defendant to get his history; and observed his demeanor, character and personality traits during the interview.

It was the opinion of Doctor Tuteur that the defendant was mentally ill on February 27, 1966; that the mental illness affected his capacity to appreciate the criminality of his conduct and to conform it to the requirements of the law. He was also of the opinion that this condition might, or could have, existed on November 13,1965.

Doctor Tuteur gave the defendant an electroencephalogram test, which ruled out any organic brain damage. After the examination of February 21, 1967, Doctor Tuteur was of the opinion that the defendant had a schizophrenic reaction, chronic indifferentiated type, superimposed on a condition of mental deficiency.

Doctor Stiller was of the opinion that the defendant on March 26, 1966, was a schizophrenic with psychiatric tendencies, superimposed on his marginal endowment; and that the schizophrenia probably existed at the time of the robbery on November 13,1965. It was also his opinion that the defendant was a follower, and that on each of said dates he could not appreciate the criminality of his conduct and was unable to conform it to the requirements of the law.

On cross-examination, both psychiatrists stated that they did not verify the history of conduct related by the defendant, but that they believed he was telling the truth.

Caroline Lytton, who had taught educable mentally handicapped children, testified that the defendant had been in her class in 1949, 1950 and 1951, and that he had difficulty in getting along with his peers.

In rebuttal of this testimony, the People called Doctors Donovan George Wright and John Hannai, and Captain Herbert Mertes of the Du Page County Sheriff’s office. It was the opinion of Doctor Wright that the defendant was not insane but was suffering from a severe character disturbance, and from a moderate to severe impairment of intelligence. He stated that the defendant was clearly in the dull normal range of intelligence, but that he was not mentally defective.

Doctor Hannai was of the opinion that the defendant suffered from a personality disorder and had a learning problem. On cross-examination, he stated that it was his opinion that these conditions probably would not impair the defendant’s capacity to appreciate the criminality of his action, but might impair, to some extent, his capacity to manage his behavior and conform it to his understanding.

Both Doctors Wright and Hannai testified that the defendant admitted to them that he had exaggerated and fabricated in his prior interviews to suit his purpose, because he wanted to go to the hospital rather than back to jail. Doctors Wright and Hannai had the benefit of the reports of Doctors Tuteur and Stiller when they made their examinations of the defendant. Also, Doctor Wright had the additional benefit of certain psychological tests which were made by Doctor Seigel.

Captain Mertes testified that in returning the defendant from California to Du Page County, he noted nothing unusual about his conduct with reference to lack of substantial capacity either to appreciate the criminality of his conduct or to conform it to the requirements of the law.

Sections 6-2(a), (b), 6-4, and 3-2(a) (6) of the Criminal Code have application to the case at bar. They provide:

“6-2 Insanity, (a) A person is not criminally responsible for his conduct if at the time of such conduct, as a result of mental disease or mental defect, he lacks substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law.
“(b) The terms ‘mental disease or mental defect’ do not include an abnormality manifested only by repeated criminal or otherwise anti-social conduct.”
(Ill Rev Stats 1967, c 38, par 6-2(a), (b).)
“6-4. Affirmative Defense. A defense based upon any of the provisions of Article 6 is an affirmative defense.”
(Ill Rev Stats 1967, c 38, par 6-4.)
“3-2. Affirmative Defense, (a) ‘Affirmative Defense’ means that unless the State’s evidence raises the issue involving the alleged defense, the defendant, to raise the issue, must present some evidence thereon.
“(b) If the issue involved in an affirmative defense is raised then the State must sustain the burden of proving the defendant guilty beyond a reasonable doubt as to that issue together with all the other elements of the offense.”
(Ill Rev Stats 1967, c 38, par 3-2(a), (b).)

Under the foregoing provisions of the Criminal Code, once the sanity of the defendant was placed in issue, it became an affirmative defense on behalf of the defendant, and the People then had the burden of proving beyond a reasonable doubt that the defendant was free of a mental defect or mental disease which would cause him to lack substantial capacity either to appreciate the criminality of his conduct, or to conform it to the requirements of the law, together with all other elements of the offense. People v. Gold, 38 Ill2d 510, 514, 515, 232 NE2d 702 (1967).

Two doctors testified as experts for the defendant and two for the People in support of their respective theories of the case. The evidence was conflicting. It appears that Doctors Wright and Hannai, at the time of their respective examinations of the defendant, had the benefit of use of the prior examination reports of Doctors Tuteur and Stiller. In addition, Doctor Wright had the benefit of psychological tests in reaching his opinion that the defendant was not insane but was suffering from a severe character disturbance, and from a moderate to severe impairment of intelligence; and that he was not mentally defective, even though in the dull normal range of intelligence.

The opinions of Doctors Tuteur and Stiller that the defendant was mentally ill on November 13, 1965, and that this illness affected his capacity to appreciate the criminality of his conduct and to conform it to the requirements of the law, were based, at least in part, on the history related by the defendant, which was not verified. When the defendant was examined by Doctors Wright and Hannai, he admitted that he had exaggerated and fabricated in his past interviews with Doctors Tuteur and Stiller to suit his then purpose. Further, the electroencephalogram test, given by Doctor Tuteur, ruled out any organic brain damage with reference to the defendant.

None of the doctors included, as a part of the defendant’s history, the facts surrounding the armed robbery in question. These facts clearly included premeditation and planning on the part of the defendant. Such circumstances would tend to refute the opinion of Doctor Tuteur that the defendant was a follower only. The fact that the defendant left the State was also a circumstance which the jury could consider with reference to his capacity to appreciate the criminality of his conduct.

Counsel for the defendant submitted a hypothetical question to Doctor Stiller, which included facts containing elements of premeditation and planning in connection with an armed robbery. In answer to the hypothetical question, Doctor Stiller commented on this circumstance and stated that if the hypothetical person was as mentally ill in November of 1965 as the defendant was at the time of the examination in March of 1966, then the hypothetical person could not conform his conduct to the requirements of the law.

It was in the light of all the testimony, that the jury found that the People had proven beyond a reasonable doubt, that the defendant had no mental disease or defect whereby he lacked substantial capacity either to appreciate the criminality of his conduct or to conform it to the requirements of the law; and found that the People had also so proven all other elements of the offense.

The evidence on the sanity issue in the case at bar was in conflict: that with reference to the commission of the offense by the defendant was without conflict. The conflict on the sanity issue gave rise to a factual question which the jury was peculiarly suited to determine, and its findings will not be disturbed unless they are so manifestly against the weight of the evidence as to indicate that the verdict was based on passion or prejudice. People v. Ford, 39 Ill2d 318, 321, 235 NE2d 576 (1968); People v. Thomas, 409 Ill 473, 478, 100 NE2d 588 (1951).

On review of a criminal cause, we will not reverse a judgment of conviction unless the evidence is so palpably contrary to the verdict, or so unreasonable, improbable or unsatisfactory, as to justify entertaining a reasonable doubt as to the defendant’s guilt. People v. Lobb, 17 Ill2d 287, 294, 161 NE2d 325 (1959). The evidence in the case at bar does not raise such doubt. Consequently, the judgment of the trial court is affirmed.

Judgment affirmed.

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


author: TRAPP, J.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. S. A. Harper, Defendant-Appellant.
    Gen. No. 10,896.
    Fourth District.
    December 19, 1968.
    Donald B. Mackay, Public Defender, of Bloomington, and Robert E. Williams, Assistant Public Defender, for appellant.
    Hugh A. Henry, Jr., State’s Attorney, of Bloomington, for appellee.
   TRAPP, J.

Defendant was sentenced to the Illinois Youth Commission upon his plea of guilty to a charge of auto theft, c 95i/2, § 4-102, 111 Rev Stats, a misdemeanor.

The State’s Attorney has confessed error in the magistrate’s denial of defendant’s petition for probation in the following circumstances — the defendant is 15 years of age. He, with two boys, aged fourteen and fifteen, respectively, stole an automobile. Defendant was the driver of the automobile which was wrecked.

The probation officer was not called to testify at the hearing on probation, but his written report discloses no prior convictions. Defendant testified that he resided at the home of his parents, was in his final year of grammar school, and that his school grades were in the range D or F. Defendant also testified that he had violated the curfew law of the town in which he resided and had been expelled from school for three days for smoking on school property.

Following the hearing, the State’s Attorney recommended that probation be granted. The magistrate granted probation to each of the two boys charged with defendant.

By reason of the error confessed, it is not necessary to examine the several issues raised upon the appeal. The conviction upon the plea of guilty is affirmed, but the cause is remanded with directions to vacate the sentence imposed, and to enter an order granting probation.

Conviction affirmed, cause remanded with directions.

SMITH and CRAVEN, JJ., concur.


author: MR. JUSTICE SULLIVAN

text:
    People of the State of Illinois, Plaintiff-Appellee, v. James Thomas, et al., Defendants-Appellants.
    Gen. No. 52,174.
    First District, Third Division.
    December 19, 1968.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Herbert Becker, Norman W. Fishman, and James J. Doherty, Assistant Public Defenders, of counsel), for appellants.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and James R. Kavanaugh, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE SULLIVAN

delivered the opinion of the court.

Defendants appeal from an order finding them guilty of robbery. A jury trial was waived by the defendants, who pleaded not guilty. They received the following sentences : defendant Marvin Hampton was sentenced to the penitentiary for a term of not less than three nor more than five years; defendant James Thomas was sentenced to the penitentiary for a term of not less than five nor more than ten years; and Hughie Lewis was granted probation for three years with the condition of probation being that the first nine months of probation be served in the Cook County jail.

The defendants contend that they were not proven guilty beyond a reasonable doubt because the identification by Carlatus A. Jackson, the victim and sole witness for the prosecution, was not entitled to any weight because of the manner in which the lineup was conducted and because the identification was vague and uncertain.

The defendant Hughie Lewis contends that he should not have been convicted at all because he was neither a principal nor an accomplice.

The victim, Carlatus Jackson, testified as follows: On December 3, 1966, he was returning home from Mt. Sinai Hospital, where he worked, at about 7:00 p. m. He noticed four men walking together on the opposite side of Ogden Avenue toward Kedzie Avenue. The four men crossed Ogden Avenue and Marvin Hampton, one of the defendants, grabbed Jackson by the collar and told Jackson that “we are police officers.” The defendants, James Thomas and Hughie Lewis, were within touching distance of the victim Jackson. Without any provocation, James Thomas struck the victim in the mouth. At this time a cruising squad car approached the scene, and Marvin Hampton told the victim not to say anything and not even to look around. The defendants Lewis, Thomas, Hampton and a fourth unidentified man remained at the victim’s side. No one in the group said anything to the police officers and the police officers said nothing to them. When the police car left, the defendant Thomas removed the victim’s wallet, which contained a ten-dollar bill and some personal papers, from the victim’s pocket and the group continued searching the victim. When nothing else was found on the victim, the defendant Thomas struck the victim in the stomach and the group then ran and fled the scene. The street at the location of the robbery was well lighted at the time of the incident. The victim then proceeded home and called the police. The police came to the victim’s home about 45 minutes after his call and took him to the Damen Avenue Police Station. The defendants had been arrested by officers of the Chicago Police Department about one ancT one-half blocks from the scene of the crime between 7:30 and 8:00 p. m. in connection with another complaint. The police informed the victim that they might have the men in the station. The victim first saw the defendants in a room sitting on a bench and later in a lineup of four. The victim identified three of the four men in the lineup, namely defendants Thomas, Hampton and Lewis, as his assailants.

The defendants first contend that the identification by Carlatus Jackson was not entitled to any weight because of the manner in which the lineup was conducted. They contend the foregoing because the police told the victim when he arrived at the station that “they might have the men in there.” The police told the victim to wait outside. The three defendants then appeared in a lineup of four. The victim identified the three defendants.

The defendants argue that the identification made by the victim was the result of a definite suggestion of the police and they practically told him that they had the men he suspected. In support of their argument, the defendants cite People v. Boney, 28 Ill2d 505, at page 508, 192 NE2d 920, wherein the court said:

“The manner of conducting the ‘line-up’ which complainants viewed consisted of placing the defendant together with three or four of complainant husband’s co-workers personally known to him. We have repeatedly condemned similar practices (People v. Mikka, 7 Ill2d 454), and long ago stated regarding identification procedures: ‘The proper way is to have the witness, without suggestions from any officers or any interested persons pick out the guilty party from a number of persons unknown to the witness.’ (People v. Saunders, 857 Ill 610, 622.)”

The defendants also cite the case of People v. Gardner, 85 Ill2d 564, 221 NE2d 232, in which the court stated that eyewitness identification ranks at the top of all factors that account for conviction of the innocent.. In People v. Boney, supra, the court said on page 509:

“However, ‘There is no requirement in the law that an accused person must be placed among a group of persons for the purpose of testing the ability of a witness to identify him as the guilty person,’ (People v. Crenshaw, 15 Ill2d 458, 464), and the manner ‘does not render the identification testimony incompetent, but only goes to the weight of the evidence.’ (People v. Mikka, 7 Ill2d 454, 458-9; People v. Washington, 26 Ill2d 207, 210.)”

The court in Boney continued by saying that at times improper or unsubstantiated identification had led to reversals of convictions, but that in those cases there existed additional elements of elapsed time between the crime and the identification, contradictory opinions among the identifying witnesses, a question as to whether the witness saw the crime or had sufficient opportunity to observe the one acting, a proof of good reputation of the accused or the existence of a reliable alibi. In People v. Horodecki, 15 Ill2d 130, 154 NE2d 67, the court held that if the victim were given an opportunity to view the suspect with a group of other people under proper safeguards, the proof of identification offered at the trial of the cause would be considerably strengthened. The court there also stated on page 135:

“However, the failure to do so does not render the identification incompetent, (People v. Coli, 2 Ill2d 186,) nor detract from the essential requirement that a person charged with a crime must ultimately be identified in a court of proper jurisdiction by competent evidence beyond a reasonable doubt pursuant to constitutional safeguards. It was for the jury to weigh the testimony and determine the credibility of the several witnesses. (People v. Coli, 2 Ill2d 186; People v. Barad, 362 Ill 584; People v. Nicholson, 404 Ill 122; People v. Leach, 398 Ill 515.)”

The defendants also argue that the identification should carry no weight because it was unsatisfactory and doubtful. They support this argument on the basis that the defendants denied the testimony of the victim Jackson, and that Hampton, one of the defendants, testified that he was walking to the hospital to get his arm wound stitched and stated positively that he did not rob Jackson, and that the defendant Lewis, while denying that he had robbed Jackson, also said he had never seen Jackson before that day. In support of this contention, the defendants cite People v. Gold, 361 Ill 23, 196 NE 729, wherein it was stated that an identification made by a stranger without sufficient opportunity to definitely fix features or characteristics must be an opinion or conclusion of the identifying witness. Defendants also cite People v. McGee, 21 Ill2d 440, 173 NE2d 434, in support of the statement that where the conviction of a defendant rests upon identification which is doubtful, vague and uncertain it would not produce an abiding conviction of guilt.

In the case at bar, Jackson’s identification was made within forty-five minutes after the crime was committed. He was able to observe the defendants at the scene while they were within arm’s length of him on a well-lighted street. The time involved in the commission of the crime was lengthened by reason of the fact that a squad car approached just as the defendants were about to commit the crime and they were delayed until the squad car left. The victim in this case during his direct examination was positive in his identification of the defendants and his testimony was not shaken at any time during the trial. He reaffirmed his identification on redirect examination. The trial judge before whom this case was tried was able to observe the demeanor of the witness, his candor or lack of candor, and was able to determine his credibility. The identification by the victim in this case was not doubtful, vague or uncertain.

It is well established that the defendants’ identification was a question for the determination of the court in this case, which determination will not be disturbed because it was not so unsatisfactory or implausible as to justify a reasonable doubt of defendants’ guilt. (People v. Pecho, 362 Ill 568, 200 NE 860; People v. Napper, 78 Ill App2d 451, 223 NE2d 194.) The identification and guilt of the defendants in this case was proven beyond a reasonable doubt.

We then come to the contention raised by defendant Lewis to the effect that he neither aided nor abetted in the crime of robbery in that he was neither a principal nor an accomplice and therefore should not have been convicted. The defendant Lewis argued that he did nothing to the victim Jackson when the robbery was perpetrated. He did not steal the wallet; he did not hit Jackson and he did not touch him. He also argues that the record is silent as to any prior conversation with defendant Lewis relating to his having planned to rob Jackson or anyone else. He reasons from the foregoing that he was not a principal and likewise he was not an accomplice. He argues that just because he happened to be present when the crime occurred is not sufficient to make him an accomplice. In support of his argument defendant cites People v. Hrdlicka, 344 Ill 211, 176 NE 308, wherein one Grysh who was a judge of election saw Hrdlicka change the markings on ballots. Grysh did not participate in the alteration and said nothing, but certified the returns as being true and correct. The court in holding Grysh not guilty said on page 222:

“The knowledge that a crime is being or is about to be committed cannot be said to constitute one an accomplice nor can the concealment of knowledge or the mere failure to inform the officers of the law when one has learned of the commission of a crime. (1 RCL 157) It cannot be said that Grysh aided, abetted or assisted in the commission of the crimes. They are affirmative in character. It is not sufficient that there is a mere negative acquiescence not in any way made known to the principal malefactor.”

There was nothing in that case to indicate that Grysh, the election judge, had aided, abetted or assisted in the act committed by the defendant Hrdlicka.

Defendant Lewis also cites the case of People v. Richie, 317 Ill 551, 148 NE 265, wherein the court said on page 558:

“To constitute one guilty of a crime as principal he must be present or participate or do some act at the time of the commission of the offense in furtherance of the common design. . . .” (Emphasis supplied.)

Lewis also cites the case of People v. Barnes, 311 Ill 559, 143 NE 445. In that case Bowers and a Lillian Barnes were convicted of the larceny of an automobile. Bowers was arrested while, driving a stolen car in which Lillian Barnes was riding with her five-year-old child. Lillian Barnes had asked Bowers where he had picked up the car, and he told her that it was none of her business. She denied having any knowledge as to where Barnes got the automobile and did not encourage, aid, abet or assist him to steal it. The court in reversing her conviction held that in order for a party to be convicted as a principal it must be shown that he or she by some affirmative act actually advised, encouraged, aided or abetted the perpetration of the crime and that a mere presence of a person is not sufficient to constitute him a principal unless there is something in his conduct showing a design to encourage, incite or in some manner aid, abet or assist the actual perpetrator of the crime.

Defendant also cites People v. Bongiorno, 358 Ill 171, 192 NE 856, which case employed the same language cited in People v. Richie, supra. Other cases to the same effect are cited by the defendant. In People v. Johnson, 61 Ill App2d 319, 210 NE2d 344, after discussing the principle enunciated by the Supreme Court, the court said on page 323:

“The case of People v. Thickstein, 14 Ill2d 132, 150 NE2d 813 (1958) dealt with a conviction of robbery where the appellant claimed there was no direct evidence in the record that he did any affirmative act in connection with the crime or joined in a common design to commit it. The Supreme Court said,
“ ‘While mere presence or negative acquiescence is not enough to constitute a person a principal, circumstances may show there is a common design to do an unlawful act to which all assent. In such cases it is not necessary that each one shall take an active part in the commission of the crime. Whatever is done in furtherance of the design is the act of all, and each is guilty of the crime. (Citations omitted.)
“ ‘In a criminal prosecution the factual issues are for the jury to determine, and this court will not disturb its finding unless the proof does not meet the requirements of law. From the facts and circumstances in this record, the jury could reasonably find that plaintiff in error knew the robbery was to be committed, that he participated therein, and that he is guilty as a principal.’ ”

In People v. Bracken, 68 Ill App2d 466, 216 NE2d 176, this court said, on page 472:

“If the proof shows that a person is present at the commission of a crime without disapproving or opposing it, it is competent for the jury to consider this conduct in connection with other circumstances and thereby reach the conclusion that he assented to the commission of the crime, lent to it his approval, and was thereby aiding and abetting in its commission.”

In the instant case the evidence showed that the four men crossed the street together and that Hampton grabbed the victim. The victim identified two of the other three as defendants Thomas and Lewis. The defendant Lewis stood within touching distance to the right side of the victim during the occurrence. While the robbery was in progress, a police car pulled up to the scene and the victim was cautioned to remain silent, which he did. Lewis and Thomas remained at the victim’s side. Thomas removed the victim’s wallet and searched and struck the victim all in the presence of Lewis. Lewis and the other defendants then fled the scene together. Lewis did nothing which would indicate his disapproval or opposition to the robbery. The court in People v. Washington, 26 Ill2d 207, 186 NE2d 259, stated on page 209:

“It is the defendant’s first contention that the evidence of the prosecution shows at best only his mere presence at the crime and his negative acquiescence therein, and is therefore insufficient to support a finding that he aided, abetted or assisted in the robbery. While it is true that mere presence or negative acquiescence is not enough to constitute a person a principal, one may aid and abet without actively participating in the overt act and if the proof shows that a person was present at the commission of the crime without disapproving or opposing it, it is competent for the trier of fact to consider this conduct in connection with other circumstances and thereby reach a conclusion that such person assented to the commission of the crime, lent to it his countenance and approval and was thereby aiding and abetting the crime.”

We conclude from the evidence in this case that the defendant Lewis was proven to be a participant in the act of robbery and that Lewis together with the other two defendants were proven guilty beyond a reasonable doubt.

Affirmed.

DEMPSEY, P. J. and SCHWARTZ, J., concur.


author: ALLOY, P. J.

text:
    The M. A. Felman Co., an Illinois Corporation, Plaintiff-Appellee, v. WJOL, Inc., an Illinois Corporation, Defendant-Appellant.
    Gen. No. 68-14.
    Third District.
    December 23, 1968.

      Gray, Thomas, Wallace & Feehan, of Joliet, for appellant.
    Sonnenschein, Levinson, Carlin, Nath & Rosenthal, of Chicago, and Herschbach, Tracy, Johnson & Wojtak, of Joliet, for appellee.
   ALLOY, P. J.

This is an appeal from a judgment of the Circuit Court of Will County in favor of plaintiff, the M. A. Felman Co., as against defendant, WJOL, Inc., in the sum of $51,-962.19. The judgment followed a finding (pursuant to a motion for summary judgment) by the Circuit Court of Will County that plaintiff was entitled to such damages as a result of defendant’s breach of contract. The record discloses that plaintiff M. A. Felman Co. operated the Boston Store in Joliet, Illinois. Mr. A. J. Felman was the principal owner and chief executive of the plaintiff corporation prior to June, 1932. He was also the sole owner of all stock of WCLS, Inc., which then operated a Joliet radio station. On June 21, 1932, Felman sold all the stock in the radio station corporation to R. W. Hoffman, for a stated consideration of $10 and the promise of certain free broadcasting time “so long as said station WCLS is operated as a radio broadcasting station.” The free broadcasting time was to consist of 120 minutes each weekday and 90 minutes on Sunday. This original agreement also was conditioned so that no more than three announcements would be made in each 15-minute period. An amendment was made of this agreement on August 9, 1937, pursuant to which $5,000 was paid to Felman. The free broadcasting time was reduced from 13^ hours a week to 5y% hours a week with such free time to continue “so long as station WCLS is operated.” The corporate name of WCLS was later changed to Joliet Broadcasting Co., with the station letters WJOL. The shareholders of Joliet Broadcasting Co. conveyed all interest in their stock to WJOL, Inc., which continued to operate station WJOL. Felman assigned his contract rights to the plaintiff corporation (the M. A. Felman Co.) in 1945 for a period of ten years, and subsequently renewed this assignment by two succeeding instruments, the last of which conveyed to the plaintiff corporation all right, title and interest under the contract.

In 1945 the radio station sought to renew its license but was given only a temporary permit due to the fact that the Federal Communications Commission (hereinafter referred to as FCC) was then in the process of working on regulations with regard to types of contracts which allowed for free broadcasting time. On April 1, 1949, the FCC adopted Rule 3.109, which provided in substance as follows:

“Special rules relating to contracts providing for reservation of time upon sale of a station, (a) No . . . renewal of license . . . shall be granted . . . to a . . . broadcast station which has a contract . . . (under) which . . . transferor retains any right ... to use the facilities of the station for any period whatsoever.
“(b) In the case of . . . transfer . . . before February 15, 1949 . . . the Commission . . . (may issue) a license despite . . . such contract . . . if . . . within 6 months from . . . this rule. (The contract is modified to contain at least the following provisions:) C(
“3. A prohibition against the resale or reassignment of any of the broadcast time reserved by such modified contract.
“4. An express negation of any right with respect to reversion or assignment of license.
“5. An express provision setting forth a definite expiration date of the contract . . . Such expiration date shall not extend beyond February 15, 1964 . . .
“6. An express provision giving to the licensee the right to terminate the contract . . . for substantial cause . . . upon the payment of a lump sum . . . ,”

Prior to this time, in 1949, plaintiff sought to enjoin enforcement of the FCC rule on the ground that it deprived plaintiff of property without due process of law. This litigation terminated in the United States Supreme Court. The only issue there was apparently whether the FCC had the power to issue its rules. There was no determination of the effect of the rules as between plaintiff and defendant.

The plaintiff contended at FCC hearings that it would be clearly unjust if in the course of determining standards which would govern the station’s broadcasts, the FCC would attempt to invalidate the Felman contract which had been entered into in good faith and had been fully disclosed to the FCC and had been fully performed by Felman. The FCC Chairman indicated that the question of contract liability was not involved. It was likewise clearly indicated that the Commission did not in any manner attempt to determine whether or not there would be a liability to Felman in the event the Commission regulation and decision became final. The FCC Chairman stated that this was a wholly separate issue which should be dealt with as a civil matter. When the station license was up for renewal in 1950, the defendant radio station representatives told the FCC that they had not yet reached an agreement with plaintiff, but they stated to the FCC that they would not recognize any obligation under this contract of August 9, 1937, which was not consistent with the provisions of said Section 3.109. The FCC renewed the license of WJOL and such license was continued from that time on by the FCC. The radio station continued to furnish plaintiff program and advertising time (as it had done for years) until February 15, 1964. The station advised the plaintiff in writing on February 10, 1964, that it would not operate under the contract after February 15, 1964, and that after such date it would refuse to give broadcasting announcements delivered to the station by plaintiff under the terms of the contract.

Action for breach of contract was filed by plaintiff on April 23, 1964, seeking damages of $14,741 for each year subsequent to the time of the breach of the contract. The facts were undisputed and the trial judge granted a motion for summary judgment in favor of the plaintiff. Judgment was entered for the plaintiff as against defendant with damages set at $51,962.19. The judgment covered damages from February 15, 1964, through August 24, 1967. In the process of determination of this cause, the trial court stated “The action of the FCC under its rule-making power does not affect the validity of the contract between licensee and third party. This is basic. The rights of the parties under the contract are to be determined by the law of Illinois. I cannot see how the doctrine of impossibility of performance or commercial frustration can be applied here. Felman has performed completely and nothing more by him needs to be done. Performance by defendant is not rendered illegal or contrary to public policy. Clearly, the payment of damages, or the money equivalent of the thing to be delivered, is possible, is legal, and does not offend the regulatory agency.” The present owners of WJOL purchased their stock in November of 1954. The damages referred to were predicated upon damages of .$14,741 for each year subsequent to the breach based upon the value of the broadcasting time during each of such years.

On appeal in this Court, defendant radio station corporation asserts (1) impossibility of performance of the contract resulted solely from legal action of the governmental agency and presented an effective defense to an action based upon its breach; (2) the obligations alleged to have been assumed under the Felman contract contemplate possible termination by the very contract terms, and are subject to the regulations of the FCC; (3) the suit based upon an alleged breach of the contract of August 9, 1937, is barred by the Statute of Limitations; (4) that there was no proper legal basis for the suit being brought by the plaintiff, M. A. Felman Co., or against defendant, WJOL, Inc.; (5) that the conduct of the parties before and after the order of the FCC renewing the broadcasting license coupled with the combination of attending circumstances brought into being a new contract implied in law or implied in fact; and (6) that the damages awarded below were improper and illegal.

On the question of the doctrine of impossibility or commercial frustration as being a basis for absolving defendant completely from any liability to pay damages, it would be well to analyze the doctrine generally. In Illinois and other states, when performance of a contract becomes impossible because governmental laws or regulations make such performance illegal, nonperformance may be excused. This rule assumes that the possibility of such illegality was not provided for in the contract or contemplated by the parties when they entered into an agreement. Also, such illegality must not have come about because of any action or nonaction on part of either of the parties to the contract. Some early cases on this issue involved prohibition cases where property was leased for tax purposes only and it became illegal to operate a tavern. In such situations, nonperformance by the lessee of the lease was excused (Levy v. Johnston & Hunt, 224 Ill App 300). Similarly, where a contract contemplated the continued existence of a particular person, thing or condition, and later the person died or the thing was destroyed, or the condition was changed in a way not contemplated by either party, the courts of this State recognized that performance may be excused (First Nat. Bank of Danville v. Taylor, 329 Ill App 49, 67 NE2d 306; O’Hern v. DeLong, 298 Ill App 375, 19 NE2d 214).

In the cases referred to, such as the prohibition cases, since the lessee could not continue to operate a tavern because it was illegal, the lessee was excused from performance. In Leonard v. Autocar Sales & Service Co., 392 Ill 182, 64 NE2d 477, the defendant, a lessee of certain premises, argued that his obligation to pay rent had been terminated because the government acquired use of his premises by condemnation. The court noted that the tenant was entitled to receive compensation from the government for the value of the leasehold taken. Therefore, “there is no hardship or injustice in holding it to the payment of the rent which is the consideration for which the term was granted” (page 191). In the case before us the broadcasting time formerly made available to plaintiff was, upon being denied to plaintiff, made available for sale to others. Damages awarded to plaintiff simply represent the fair value of such broadcasting time, so far as the record is concerned, and merely reflects the additional income which defendant was able to obtain as a result of its failure to perform the agreement in consequence of its adherence to the FCC regulation. The application of the impossibility-frustration doctrine (as an excuse for nonperformance as was the situation of the tenant in Leonard v. Autocar Sales & Service Co., supra) would confer an additional benefit upon the defendant seeking to invoke the doctrine. This would result in an inequitable situation as between the parties to the contract. Neither party, applying equitable principles, should benefit at the expense of the other. Since defendant cannot render performance in the form in which it was called for by the contract, it should not be relieved of all obligations, but should respond in damages which would place both parties in substantially the same position as if there had been no breach.

We note that the FCC itself specifically recognized that the regulation did not abrogate the contract or nullify plaintiff’s rights or forbid payment of compensation to plaintiff. The Felman contract had reserved broadcast time for the purpose of advertising. The basic purpose would still be achieved, not by granting free advertising time contrary to Rule 3.109, but by payment of damages so that such advertising time could be purchased with such payment. To apply the impossibility-frustration doctrine so as to relieve defendant of any obligation to plaintiff (even though plaintiff has completely performed), would make Rule 3.109 effective for a purpose which it was not intended to have and confer upon the FCC the power to affect or destroy private contract rights.

The basic consideration is whether under Illinois law, defendant’s inability to perform would defeat plaintiff’s right to recover compensation by reason of such inability to perform. We have noted in Leonard v. Autocar Sales & Service Co., supra, and in Warshawsky v. American Automotive Products Co., 12 Ill App2d 178, 188, 138 NE2d 816, that inability to perform contractual obligations does not amount to a “legal impossibility” which excuses the promissor of all liability. The parties hereto agree that the FCC regulation did not in any manner make the contract illegal. The trial court correctly summarized the rules when it stated that payment of damages would in no way contravene public policy. So far as the record in this case is concerned, it is apparent that the FCC anticipated that there would be actions or agreements resulting in allowance of damages for failure of performance on part of the radio station. As stated in Phelps v. School Dist. No. 109, 302 Ill 193, at 197-8, 134 NE 312:

“When made, the contract was lawful and valid. Its performance was rendered impossible by the subsequent happening of a contingency which could not be foreseen or known when the contract was made, and the rule is that if one of the parties desires not to be bound in the event of the happening of such a contingency he must so provide in the contract. The general doctrine is well settled, that when a party contracts to do a thing without qualification, performance is not excused because by inevitable accident or other contingency not foreseen it becomes impossible for him to do that which he agreed to do.”

In Schiller Piano Co. v. Illinois Northern Utilities Co., 288 Ill 580, 123 NE 631, the Supreme Court of this State refused to invoke a rule that adoption of the Public Utilities Act destroyed plaintiff’s contract rights. Plaintiff Piano Co. owned a manufacturing plant adjacent to a dam and owned 117 horsepower created by the dam. The horsepower was conveyed to a power company in consideration of the power company agreement to furnish electric power, perpetually, free of charge. As in the case before us, the plaintiff had completely performed its side of the bargain. The amount of electricity to be furnished was subsequently adjusted and thereafter the utility company, following passage of the Public Utilities Act, refused to perform stating that the contract had become unlawful. The Supreme Court concluded that the Public Utilities Act did not make performance of the contract unlawful and did not nullify plaintiff’s rights. The court stated that it would be inequitable to apply the impossibility-frustration doctrine against a party who has fully performed and that the statute would not be construed to cause such result. The court stated (at page 587):

“It jars unpleasantly on one’s sense of justice to say the effect of the statute was to destroy or confiscate appellant’s property for the benefit and advantage of appellee ... On the contrary, it would offend against good morals and common honesty, now that appellant has conveyed its property to appellee, to give the statute the effect of having relieved appellee of the obligation to pay for it.”

Defendant cites the case of Hite v. Cincinnati, I. & W. R. Co., 284 Ill 297, 119 NE 904, in support of its contention. In that case, the grantors in a deed to the railroad made in 1880 provided that the railroad would allow free passage to the grantor and his son during their lives. In 1913, the Commission ruled that such transportation was illegal. An action for ejectment was instituted and the court denied ejectment stating (at page 299):

“In such a contract as this, if the condition has been performed the obligation necessarily is discharged, and it is also discharged if instead of the condition having been performed its performance has been prevented by the act of law.”

The court then stated, to show that the grantor did actually receive the entire consideration for the deed (at page 300):

“Appellant dealt with the railroad company knowing that it was a public utility and that any contract made with it relating to its service was subject to alteration or abrogation by the State in its exercise of that police power.”

It is notable that in the Hite case, monetary damages of some type were not sought but the action was actually for ejectment, so the question of damages, apparently, was not considered in that case. In the later Schiller Piano Co. case, to which we have referred, plaintiff also did not attempt to obtain damages, but the court there recognized the inequalities which could result if future performance was excused by application of the impossibility doctrine where no monetary or other adjustment was made between the parties.

Defendant’s contention that the Felman contract was terminated by its own terms when Rule 3.109 was adopted or that if it did not terminate it was replaced by an implied contract which in effect deprived plaintiff of his rights under the existing agreement is not justified on the record in this cause. If WJOL had ceased operation or lost its license then, of course, the Felman contract rights would have terminated. The radio station, however, had at all times remained in operation and the advertising time reserved under the contract continued to have a value. The FCC did not destroy the value of defendant’s radio station and it did not purport to render the plaintiff’s contract worthless. The fact that the contract and assignment to plaintiff both refer to rules and regulations of the FCC did not show that it was the intention of the parties that the contract obligations would be terminated in the event of the adoption of limiting FCC regulations. Regulations referred to in the contract, on the basis of the record, were those relating to standards governing the propriety of material to be broadcast. There is nothing in the record which would justify the conclusion that the contract ceased to exist at the time of the adoption of the regulation in 1949. The circumstance that defendant continued to fulfill its obligations under the contract until 1964 indicated that both parties considered that the contract was in full force and effect and not terminated by virtue of the regulation.

Similarly, we find no substance in the contention that the contract was amended by implication to contain the terms recommended by the FCC. The parties entered into negotiations with reference to the possible modification of the contract following the adoption of the regulation but could come to no agreement as between them. Negotiations were entered into for the express purpose of settlement and without prejudice to any future claim. No contract could be implied in fact as against an express declaration of a party, nor could there be any basis for construing a contract implied in law, in support of defendant’s theory of nonliability.

The record shows that continuously, until February 1964, the radio station provided time to plaintiff in compliance with the terms of the contract. The action in the instant case was filed on April 23,1964, approximately nine weeks after defendant’s first act of nonperformance. We, therefore, find no merit in the contention of defendant that the ten year statute of limitations had run when the first breach in fact occurred on February 16, 1964. The doctrine of anticipatory breach certainly would not be applicable where plaintiff has completely performed and defendant has not (Guaranty Bank & Trust Co. v. Reyna, 51 Ill App2d 412, 424, 201 NE2d 144).

As we noted in the statement of facts, the original contract was executed by WCLS, Inc., which thereafter changed its name to Joliet Broadcasting Co. and the defendant, WJOL, Inc., succeeded to the assets of Joliet Broadcasting Co. We do not believe that WJOL, Inc., by reason of such acquisition acquired the assets free of liabilities. It does not appear that WJOL contended that it took such assets free of liabilities since it performed under the contract until 1964. Similarly, on the record, all the rights under the contract had been assigned to the plaintiff and plaintiff was clearly entitled to maintain the present action.

The issue which has given us the most concern is the question as to whether the damages awarded in the court below were proper. Such damages were measured by the actual value of the advertising time, and, in effect, simply gave plaintiff the equivalent of the value of the advertising time which was the basic consideration for the transfer of the radio station. A further contention is made that the amount to be paid during each year should have been reduced by $5,000 a year. This is based on the fact that Mr. Felman was to receive $5,000 per year as consideration for his assignment of the contract to plaintiff-corporation so long as such radio time was furnished. If that corporation owes Felman $5,000, then Felman’s right to recover that amount from the corporation is something which would be litigated or determined entirely between Mr. Felman and the plaintiff corporation. Defendant’s liability would not be affected thereby.

On the basis of the record before us, it appears that neither party to this action did in fact suffer loss on the basis of the judgment rendered in the trial court. The damages awarded to the plaintiff did not impose a penalty on defendant. Defendant simply is paying for the radio time which presumably it is selling for the exact amount which it pays to plaintiff. Our attention was not directed to any other factors which would make such payment inequitable from standpoint of the defendant. Adoption of defendant’s contention, as an extension of the impossibility-frustration doctrine as an excuse for nonperformance, would unjustly enrich defendant and deprive plaintiff of his property without compensation.

Since we find no reversible error in the record, the judgment of the Circuit Court of Will County will, therefore, be affirmed.

Affirmed.

STOUDER and SCHEINEMAN, JJ., concur.