author: MR. JUSTICE DRUCKER

text:
    George F. Mueller & Sons, Inc., Plaintiff-Appellant, v. Jerry Morris and Jack David, Defendants-Appellees.
    Gen. No. 53,906.
    First District, Fourth Division.
    September 9, 1970.
    J. Edward Jones, of Blue Island, for appellant.
    Milton J. Kolman, bf Chicago, for appellees.
   MR. JUSTICE DRUCKER

delivered the opinion of the court.

Plaintiff appeals from an order vacating a default judgment entered against defendants and setting the case for trial.

On October 28,1967, plaintiff filed a complaint alleging that defendants breached a contract which granted plaintiff an exclusive concession for a cigarette vending machine and claiming loss of profits in the sum of $5,563.12. In their answer defendants admitted that they had entered into a contract with plaintiff but alleged that the contract lacked mutuality and consideration and was no longer in effect since it had expired.

On April 15,1968, a portion of defendants’ answer was stricken by agreement, and defendants were given thirty days to answer or plead over. The record does not indicate which portions of the answer were stricken and which remained in effect.

On October 1,1968, plaintiff filed a notice of motion in which it requested that a default judgment be taken against defendants “for want of answer.” The hearing on plaintiff’s motion was transferred from Room 1307 to Room 1310 instanter. In Room 1310 a default judgment for $5,563.12 and costs was entered in favor of plaintiff.

On December 13, 1968, defendants filed a motion to vacate the default judgment, and a hearing was to be held thereon on December 23. However, due to the illness of defendants’ counsel the motion was not heard.

On February 4, 1969, defendants filed a petition in support of their motion to vacate. The petition alleged that defendants had a meritorious defense to plaintiff’s cause of action “in that there was a failure of consideration, rescission, lack of mutuality and a repayment of the supporting loan upon which the contract was based and acceptance by the plaintiff of the loan repayment.” The petition also alleged that defendants had no notice of any-hearing on October 1,1968, the date on which the default judgment was entered; that plaintiff’s counsel had set a deposition to be taken on October 11, 1968, at 1:00 p. m.; that defendants and their attorney were present; that plaintiff’s counsel left a message that the deposition would not proceed; that plaintiff’s counsel never informed defendants that a default judgment had previously been entered; and that defendants’ attorney had been diligent. Plaintiff filed a motion to strike the petition, thus questioning only the legal sufficiency of the facts alleged in the petition. Hawthorne Paper Sales Co. v. Kolf, supra.

At the hearing on defendants’ petition, which was considered as a petition under section 72 of the Civil Practice Act (Ill Rev Stats 1967, c 110, § 72) defendants’ counsel stated that he never received notice of plaintiff’s motion for default judgment; that defendants were not informed of the default judgment at the deposition scheduled for October 11, 1968; and that defendants first learned of the default in December 1968 when they were served with a citation to discover assets.

Plaintiff’s attorney stated that he personally took the notice of motion for default to the office of defendants’ counsel and that one of the girls at the desk initialed it. The notice was initialed “P.K.” or “R.K.” and signed Milton J. “Coleman” or “Koleman.” The court noted that this was an incorrect spelling of the name of defendants’ attorney which was Kolman. Defendants’ counsel then told the court that none of the secretaries in the office had the initials “P.K.” or “R.K.”

Plaintiff’s attorney also told the court that he was not informed that defendants were present for the October 11, 1968, deposition. He introduced a copy of a letter which he allegedly sent to Mr. Kolman on October 8, 1968. The letter read:

“October 8, 1968
“Mr, Milton J. Kolman “Attorney at Law “38 N. La Salle Street “Chicago, Illinois
“Dear Sir:
“I shall not be able to proceed with the deposition of Jerry Norris and Jack David on October 11, 1968 pursuant to the notice heretofore served upon you.
Very truly yours,”

The letter made no mention of the default judgment previously entered on October 1,1968.

Based upon these circumstances, the court found that there was some question as to whether or not defendants’ counsel had notice of the default hearing on October 1; that defendants’ answer was on file although an unspecified portion of it was stricken by agreement; that plaintiff’s notice of motion for default judgment stated that the hearing was to be held at 9:30 a. m. in Room 1307, when in fact judgment was entered at 1:00 p. m. in Room 1310; that plaintiff’s correspondence of October 8 made no mention of the default judgment; and that plaintiff waited for more than thirty days before serving an execution or citation. The court vacated the October 1, 1968, default judgment and set the case for trial. It is from this order which plaintiff appeals.

In Ellman v. De Ruiter, 412 El 285, 293, 106 NE2d 350, the court, in discussing the pattern of conduct followed by plaintiffs’ attorney after default judgments were entered against defendant, stated:

While there was no duty on the attorney to notify defendant of the default judgments, fair dealing would require that he inform defendant of the defaults when the question arose instead of pursuing a course calculated to keep the defendant in ignorance until the time he could make a direct attack on the judgments had expired. Somewhat similar conduct was condemned in McKiernan v. Taylor & Lynch Cartage Co., 263 Ill App 657. . . . Considering the record in its entirety, we agree with the Appellate Court that such conduct cannot be condoned and that defendant is entitled to relief. To prevent a failure of justice and a further suit in equity, we conclude, for the reasons previously set forth, that it is within the spirit of the Civil Practice Act, and within the scope of the function of the motion which has replaced the writ of error coram nobis, that defendant be given summary relief in this proceeding.

In Gary Acceptance Corp. v. Napilillo, 86 Ill App 2d 257, 230 NE2d 73, the court also referred to plaintiff’s counsel’s conduct after he had obtained a default judgment. The court stated at page 263:

A further factor to be taken into consideration is the plaintiff’s failure to levy an execution until after the thirty-day period had expired. We have had occasion to express our views on this common strategy. Jansma Transp., Inc. v. Torino Baking Co., 27 Ill App2d 347, 354-355, 169 NE2d 829, 832. In that case we said (pp 354-355):
“While no duty is imposed upon a party or counsel to sue out an execution promptly in order to inform a defendant of a default within the thirty-day period, yet failure to do so is a circumstance which casts a cloud upon the entire proceeding. [Citation omitted.] On a petition to vacate, the court may properly take it into account in appraising the worth of the defense to the petition.”

In the instant case the record supports the trial judge’s findings. Defendants’ petition alleged that they appeared for a deposition on October 11, ten days after the default judgment had been entered (a fact which, in itself, supports their allegation that they had not received notice of the motion for default judgment), and were advised that plaintiff’s counsel had left a message that the deposition would not proceed. Plaintiff’s counsel told the court that he had sent a letter, which defendants claimed was not received, which stated that he “shall not be able to proceed” with the deposition. This was allegedly mailed by him seven days after the default judgment. Under either set of facts there was a clear inference that the cause was still pending and that plaintiff’s counsel for reasons best known to himself was not able to proceed. We do not consider this conduct “fair dealing” as enunciated in Ellman, supra.

The order vacating the default judgment of October 1, 1968, and setting the case for trial is affirmed.

Affirmed.

STAMOS, P. J. and ENGLISH, J., concur.

       Since only a part of the answer was stricken, defendants were not in default “for want of answer.” Hawthorne Paper Sales Co. v. Kolf, 41 Ill App2d 346, 349, 190 NE2d 604.

       In oral argument in this court plaintiff’s counsel stated that when Mr. Schostok, who appeared for defendants in the trial court hearing, told the trial court that he did not have a secretary by the name of P.K. or R.K., he was referring to his own office and not to Mr. Kolman’s office where the notice was allegedly served. This argument was not advanced to the trial judge who found that “counsel states that no one by that name [referring to the initials] is in their office.” We are, therefore, precluded from considering this argument.


source: Caselaw Access Project

author: MR. JUSTICE ENGLISH

license: Public Domain

text:
    Marcelle Keeshin, Roxanne Louise Keeshin, a Minor, by Marcelle Keeshin, Her Mother and Next Friend, and Scott Avery Keeshin, a Minor, by Marcelle Keeshin, His Mother and Next Friend, Plaintiffs-Appellees, v. Allen Schultz, Ida Schultz, Nathan Sugarman, Goldie Sugarman, and Canadian Ace Brewing Company, an Illinois Corporation, Seneca Hotel Company, a Partnership, and American National Bank & Trust Company of Chicago, Defendants, Nathan Sugarman, Individually, and Nathan Sugarman and Goldie Sugarman, Co-trustees, Appellants.
    Gen. Nos. 54,211, 54,338. (Consolidated.)
    First District, Fourth Division.
    September 9, 1970.

      Moses Levitan and Mayer, Friedlich, Spiess, Tierney, Brown & Platt, of Chicago (George V. Borbrinskoy, Jr., Herbert A. Friedlich and Robert F. Finke, of counsel), for appellants.
    Don H. Reuben and John J. Sullivan, of Chicago (Michael W. Coffield, of counsel), for appellees.
   MR. JUSTICE ENGLISH

delivered the opinion of the court.

This is a consolidated interlocutory appeal, pursuant to Supreme Court Rule 307(a)(1), from two orders granting preliminary injunctions restraining payment by the American National Bank & Trust Company, as escrow agent, to two trusts (hereafter the “Sugarman Trusts”). Previously, on motion of plaintiffs Roxanne Louise and Scott Avery Keeshin, the court had entered summary judgment in their favor and against defendant Nathan Sugarman on the issue of liability for breach of fiduciary duties with respect to two trusts (hereafter the “Keeshin Trusts”) of which those plaintiffs are beneficiaries.

A similar motion by plaintiff Marcelle Keeshin had been denied.

The following statement of facts is taken from appellants’ brief, with only irrelevant or argumentative comment deleted:

“(a) Background of the 1961 Settlement. Alex Greenberg died in December, 1955. The principal assets of his estate consisted of controlling shares of stock in two corporations, Seneca Hotel Company and Canadian Ace Brewing Company. Alex’s daughter, Ida Schultz, and his sons-in-law, Allen Schultz (an attorney) and Nathan Sugarman (a professor of chemistry at the University of Chicago), were named in the will as co-executors and as co-trustees of three separate testamentary trusts each of which being for the primary benefit of one of Alex’s three daughters, Goldie Sugarman, Ida Schultz and Marcelle Keeshin. Among its other provisions, the will provided that majority decision among the three co-executors or co-trustees should control.
“Almost from the beginning of administration, conflicts arose between Ida and Allen Schultz, on the one hand, and Nathan Sugarman, on the other. These conflicts led to the proceedings for appointment of independent counsel for Nathan Sugarman which are described in the opinion of this Court in In re Greenberg’s Estate, 15 Ill App2d 414. As set forth in that opinion independent representation was ultimately denied by this Court.
“Thereafter there was intensification of the conflict between Nathan Sugarman and his co-executors relating to a variety of issues, two of which are directly relevant to the present litigation. Nathan Sugarman desired that Canadian Ace begin to pay dividends in view of its increasing profitability. Allen and Ida Schultz (who were two of the three directors of Canadian Ace,, the third director not being a party to the present proceeding) insisted that all profits be reinvested in the brewery, and in this policy they were vigorously supported by Marcelle Keeshin and her husband, Sanford, who, after the death of Alex Greenberg, had become an officer and second highest salaried employee of Canadian Ace. Further conflict arose over the question of whether Alex Greenberg’s estate had a valid claim against Sanford Keeshin for a sum in excess of $49,000 representing, in Professor Sugarman’s opinion, a loan by Alex Greenberg to Sanford Keeshin. Marcelle and Sanford Keeshin joined Ida and Allen Schultz in resisting this claim.
“Shortly before January, 1961, . . . litigation was commenced by certain owners of Seneca Hotel stock concerning the consequences attendant upon termination of the voting trust into which a controlling block of Seneca stock had been placed. On January 10, 1961, a proposal was made to Nathan Sugarman on behalf of Allen Schultz whereby the three testamentary trusts would purchase all Seneca Hotel stock not owned by the Greenberg family. Nathan Sugarman . . . made a counterproposal whose essence was that the Sugarman trusts sell their shares in Canadian Ace and Seneca Hotel.
“(b) 1961 Settlement. Nathan Sugarman’s counter-proposal led to a meeting on January 13, 1961, attended by Nathan Sugarman, Allen Schultz, Louis Biro (a partner of Allen Schultz) and Theodore and Moses Levitan (attorneys representing Nathan Sugarman). At that meeting, an agreement was reached whereby the Sugarman family would be enabled to sever its financial involvement with the Schultz and Keeshin families.
“The salient provisions of that agreement were as follows. The 400 shares of Canadian Ace stock owned by the Sugarman Trusts and the 200 shares owned by Goldie Sugarman, individually, would be sold to Canadian Ace for the aggregate price of $1,000,000 payable over 15 years. The Seneca Hotel shares owned by the Goldie Sugarman Testamentary Trust would be sold to Canadian Ace for $332,-550 payable over 15 years, although it was subsequently determined that such a purchase might exceed Canadian Ace’s corporate powers and, therefore, Allen Schultz, individually, and the Keeshin and Schultz Testamentary Trusts were substituted as purchasers. All claims of Alex Greenberg’s estate against Sanford Keeshin would be released. Nathan Sugarman would receive $35,000 for services as co-executor .... Ida and Allen Schultz would resign as co-trustees of the Goldie Sugarman Testamentary Trust and Allen Schultz would resign as co-trustee of the Goldie Sugarman Living Trust. Nathan Sugarman would resign as co-trustee of each of the four Keeshin and Schultz Trusts. The adult beneficiaries of the six trusts involved, and their spouses, would execute, on their own behalf and that of their descendants, releases and indemnification agreements to the resigning co-trustees.
“The foregoing agreement was implemented in March and May of 1961. Pursuant to an escrow agreement dated May 26, 1961, the periodic payments for the Canadian Ace and Seneca Hotel stock were made to the American National Bank, as escrow agent, which would deposit the moneys to the accounts of the Sugarman Trusts.
“(c) The Present Litigation. Six years later, in May, 1967, after Canadian Ace had suffered a decline in fortunes, a complaint was filed on behalf of Marcelle Keeshin and her two children, then both minors, Roxanne Keeshin and Scott Avery Keeshin. The complaint sought to set aside the 1961 settlement. In January, 1969, after Roxanne Keeshin had attained her majority, additional counsel filed an appearance in her behalf and a guardian ad litem was appointed for Scott Avery Keeshin, still a minor.
“In March, 1969, the discovery deposition of Nathan Sugarman was taken, and ... a motion for summary judgment against Nathan Sugarman ‘as to liability’ . . . was filed on behalf of [Roxanne Keeshin and on behalf of Scott Avery Keeshin by his guardian ad litem.] . . . Thereafter a similar motion was filed on behalf of Marcelle Keeshin. The affidavit of Nathan Sugarman, setting forth essentially the facts contained herein, was filed in opposition to the motion.
“On June 23, 1969, the summary judgment motion of Marcelle Keeshin was denied, but that filed on behalf of Roxanne and Scott Avery Keeshin was granted as of June 13, 1969. . . . Temporary injunction orders were entered on June 13, 1969 and July 31, 1969 [re Canadian Ace and Seneca, respectively] restraining payment by the American National Bank to the Sugarman Trusts of moneys received under the 1961 Escrow Agreement.
“Appeals from the injunction orders were perfected and have been consolidated for argument herein.”

We consider the following additional facts relevant to this appeal:

Plaintiffs’ motion for summary judgment was based upon the grounds that:
“1. As a matter of law, defendant and co-trustee NATHAN SUGARMAN breached his fiduciary duties to plaintiffs as beneficiaries of the Mareelle Keeshin Trust and the Mareelle Greenberg Trust by the following acts:
“(a) Defendant SUGARMAN, acting as co-trustee of the Sugarman trusts and the Keeshin and Greenberg trusts, preferred his wife, defendant GOLDIE SUGAR-MAN, and the Sugarman trusts to the detriment of the Keeshin and Greenberg Trusts by liquidating the Sugarman holdings in Canadian Ace Brewing Company, Inc. and failing to simultaneously liquidate the Keeshin and Greenberg trust holdings in said corporation.
“(b) Defendant SUGARMAN as a matter of law violated his fiduciary obligations to the Keeshin and Greenberg trusts by subordinating their interest in Canadian Ace to the Sugarman trusts interests.
“(c) Defendant SUGARMAN failed to make any accounting to the plaintiffs as beneficiaries of the Keeshin and Greenberg trusts at any time during or subsequent to his tenure as co-trustee of said trusts and by his own admission never examined the books of said trusts or its affairs.
“2. Defendant SUGARMAN resigned as co-trustee of the Keeshin and Greenberg trusts without making any final accounting and without making any assessment or inquiry as to the financial future of the trusts he abandoned.”

The release agreement entered into by Marcelle Keeshin was not executed by a legal guardian on behalf of the minor beneficiaries of the Keeshin Trusts. Nor was the agreement presented to any court for approval.

Plaintiffs are contingent beneficiaries of the Sugar-man testamentary trust, since the will of Alex Green-berg provides that if, prior to December, 1975, Goldie Sugarman should die without leaving issue surviving, then the Sugarman testamentary trust should be divided between the Keeshin and Schultz testamentary trusts.

The complaint contains dozens of prayers for relief. Judgments are sought not only against Nathan Sugar-man, but also against the other trustees, and against Goldie Sugarman, with enforcement against the Sugar-man Trusts as well as against the individual concerned. Plaintiffs also seek an accounting against the three trustee defendants, there never having been one, either at the time of the various resignations or at any other time. Another of the alternate prayers for relief, of particular importance in the context of the orders appealed from, is that which seeks to have the entire “1961 Settlement” declared null and void, the transfers of property and payments of money thereunder restored, the security for debt reconveyed, and all unperformed obligations thereunder held unenforceable.

Practically all of the issues raised by the pleadings remain undecided, the only determination having been the summary judgment as to liability against Nathan Sugarman, and the merits of that judgment are not before us. The only issue which is before us is whether or not the trial court abused its discretion in issuing the preliminary injunctions in question. As stated in Simpkins v. Maras, 17 Ill App2d 238, 249, 149 NE2d 430:

“An application for an injunction is addressed to the conscience and sound discretion of the court, and it is not controlled by technical legal rules, and unless a reviewing court finds that the discretion has been abused, the order will not be set aside.

See, also, Aurora v. Warner Bros. Pictures Distributing Corp., 16 Ill App2d 273, 285, 147 NE2d 694.

Plaintiffs contend that support for the preliminary injunctions in the instant case is to be found in the most frequently used basis for such injunctions, namely, the preservation of the status quo pending final determination on the merits of the complaint. Authorities in support of this general proposition are too numerous to require citation. It is our understanding, however, that the status quo to be maintained under that principle is “the last, actual, peaceable, uncontested status which preceded the pending controversy.” See O’Brien v. Mutual, 14 Ill App2d 173, 187, 144 NE2d 446, and cases there cited. During the status prior to the instant controversy, the escrow bank was making the payments which have now been enjoined, so we do not consider that the status quo doctrine, in its general outline, is applicable to this case.

We do believe, however, that there is a narrower concept of status quo maintenance which is acceptable and appropriate to this case. The property and funds which were placed in escrow through implementation of the “1961 Settlement” constitute the very res which plaintiffs allege would never have come into existence had it not been for breaches of defendants’ fiduciary obligations. Among other relief sought, the complaint asks the court to set aside that entire settlement by restoring the escrowed property to the trusts as they were constituted before the acts of which defendants are accused. Plaintiffs also seek an accounting of their trusts. In this situation, the court can be seen as having not only the discretion but the duty, when requested, to attempt preservation of the property or fund in controversy so that ultimate success by plaintiffs may not result in a meaningless victory. By issuing its injunctions for this purpose, the court need not have decided that plaintiffs will probably be granted the basic relief they seek, although in this case an indication of the chancellor’s thinking may be found in the summary judgment against Nathan Sugarman.

We conclude, therefore, that the preliminary injunctions appealed from, were issued through proper exercise of the court’s discretion to maintain the property or fund in controversy pending final adjudication of the litigation. In this conclusion, we believe we are supported by the following cases, even though they employ the words “status quo,” because close reading of the opinions discloses that the term refers to the status quo necessary to prevent dissipation or destruction of the res in controversy: Weingart v. Weingart, 23 Ill App2d 154, 159, 161 NE2d 714; Fishwick v. Lewis, 258 Ill App 402, 410; Seay & Thomas, Inc. v. Kerr’s, Inc., 58 Ill App2d 391, 402-403, 208 NE2d 22; Forster v. Fruin & Walker Co., 170 Ill App 89; 21 ILP, Injunctions, §§ 4, 12; 42 Am Jur 2d, Injunctions, §13; Harman v. Jones, 18 Eng Chanc Rep (4 Myline & Craig) 298, 300. See, also, City of Monmouth v. Payes, 39 Ill App2d 32, 40, 188 NE2d 48; Chicago Motor Coach Co. v. Budd, 346 Ill App 385, 389-390, 105 NE2d 140; Northern Illinois Coal Corp. v. Langmeyer, 340 Ill App 423, 429, 92 NE2d 802; Peoples Gas Light & Coke Co. v. Slattery, 287 Ill App 379, 388-389, 5 NE2d 285; Miollis v. Schneider, 77 Ill App2d 420, 425, 222 NE2d 715.

As mentioned above, the injunction orders recited that they were being entered “by reason of the granting of the joint motion for summary judgment.” Defendants contend that the injunctions were therefore erroneously issued because a judgment against Nathan Sugarman could not properly be satisfied out of a trust fund in which he has no beneficial interest. Plaintiffs suggest various answers in response, but, under the views which we have expressed, we find it unnecessary to decide this point. We do note, however, that the reasons stated by the trial court for the entry of its order do not limit the grounds available to a reviewing court in deciding to affirm. Miller v. Chicago Transit Authority, 78 Ill App2d 375, 381, 223 NE2d 323.

Defendants also argue that the injunctions in this case amount to equitable attachment in anticipation of a money judgment, and are therefore invalid, citing, principally, Phelps v. Foster, 18 Ill 309, 311, and Lewis v. West Side Trust & Savings Bank, 288 Ill App 271, 6 NE2d 481. We have reviewed these cases and the principle for which they stand, and do not consider them applicable to the facts of the case now before us. Nor do we consider pertinent defendants’ contention that the injunctions are in violation of section 49 of the Chancery Act. Ill Rev Stats 1967, c 22, § 49.

The preliminary injunctions appealed from are affirmed.

Affirmed.

STAMOS, P. J. and DRUCKER, J., concur.

       The estate’s shares of Seneca stock were part of a voting trust. The estate’s holdings of Canadian Ace stock consisted of 750 shares of the 1750 outstanding. During his lifetime, in 1945, Alex Greenberg had established two trusts for the primary benefit respectively of Goldie Sugarman and Ida Schultz, the principal asset of each trust being 150 shares of Canadian Ace. A similar trust was created by Alex’s wife Esther for the primary benefit of Marcelle Keeshin. Nathan Sugarman and Allen Schultz were the two cotrustees of each of the three living trusts.


text:
    Banner Insurance Company, Plaintiff-Appellant, v. Clotilde Avella, et al., Defendants-Appellees.
    Gen. No. 54,371.
    First District, Fourth Division.
    September 9, 1970.
    Rehearing denied and opinion modified October 5, 1970.
    Vincent J. Biskupic and Frank J. Merrill, of Oak Brook, for appellant.
    George B. Collins, Alan O. Amos, Collins & Amos, of Chicago (Jeffrey Schulman, of counsel), for appellees.
   MR. JUSTICE DRUCKER

delivered the opinion of the court.

Plaintiff appeals from a summary judgment declaring the rights of defendants to a defense and payment under plaintiff’s policy of insurance.

The following facts as set forth in the pleadings and cross-motions for summary judgment are not in dispute. On November 8, 1966, the plaintiff issued to the defendant Pio Mugnaini its standard form automobile insurance policy. On April 19, 1967, while the policy was in full force and effect, Pio’s automobile, driven by defendant Anna Mugnaini and carrying the defendant Clotilde Avella, was involved in an accident. At the time of the accident Anna was driving Pio’s automobile with his permission.

Clotilde filed a lawsuit against Anna wherein she sought to recover damages for the personal injuries she suffered as a result of the negligence and wilful and wanton misconduct of Anna. Pio was not sued by Clotilde.

Plaintiff obtained a “reservation of right” from Anna and appeared and entered a defense in her behalf in the lawsuit filed against her by Clotilde. Plaintiff then filed its complaint for declaratory judgment to adjudicate its rights and liabilities under the insurance policy issued to Pio.

Clotilde is the natural mother of Anna and Anna is the lawful daughter-in-law of Pio, the named insured under plaintiff’s insurance policy. At all times the defendants Anna Mugnaini, Pio Mugnaini, and Clotilde Avella were residents of the same household located at 6226 North Lowell Avenue, Chicago, Illinois.

In the declaratory judgment action cross-motions for summary judgment were filed by plaintiff and defendant Clotilde Avella. The trial court entered summary judgment against plaintiff finding that the defendant Anna Mugnaini had the right under plaintiff’s insurance policy to a defense of the claim being made against her by the defendant Clotilde Avella and that the defendants had the right to payment by plaintiff of any judgment entered in the cause entitled Clotilde Avella v. Anna Mugnaini, 67 M2 10801. Plaintiff appeals from this judgment.

Opinion

The automobile insurance policy issued to Pio by the plaintiff provides in Part I — Coverage A that plaintiff agrees “[t]o pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages” because of bodily injury and property damage. (Emphasis supplied.) Under the title “Persons Insured” the policy states:

“The following are insureds under Part I:
“ (a) With respect to the owned automobile,
“ (1) the named insured and any resident of the same household,
“(2) any other person using such automobile to whom the named insured has given permission, provided the use is within the scope of such permission”;

Definitions under Part I are:

“named insured” means the individual named in Item 1 of the declarations and also includes his spouse, if a resident of the same household; “insured” means a person or organization described under “Persons Insured”;

It is conceded that by the terms of the policy Anna is one of the persons designated as “insured.”

Plaintiff argues, however, that the following portion of the exclusionary clause relieves it from liability under the policy:

“Exclusions. This policy does not apply under Part I . . . “(d) to bodily injury or property damage to (1) a relative, or (2) the spouse or any parent, son or daughter of the insured or spouse, or, (3) the named insured”; (Emphasis ours.)

Defendants claim that Anna is not “the insured” but rather “an insured” and therefore the exclusion does not apply to her. In effect they argue that the words “the insured” as used in the exclusionary clause relate only to the “named insured” and therefore do not apply to other persons designated as “insureds.”

In Tenopir v. State Farm Mut. Co., 403 F2d 533 (9th Cir 1968), the court held that “the insured” included “the named insured.” However, in its opinion the court at page 536 discussed the interpretation of the word “the”:

And the policy itself uses the phrase “the insured” in the coverage clause (p 2), upon which Tenopir must rely to have Golliheair be an insured, just as it does in the exclusion clause (p 4), on which the company relies. If “the insured” means, in the coverage clause, more than one insured, why does it not mean more than one insured in the exclusion clause?

We conclude that since defendants claim coverage as one of “the insured,” they must also accept designation as “the insured” under the exclusionary clause. Therefore we find that “the insured” in part (2) clearly refers not only to the “named insured” but to all persons designated as “insureds” under Part I— Liability, “Persons Insured.”

We would also point out that in part (3) of the exclusion clause specific reference is made to the “named insured.” Therefore it is manifest that if part (2) was to apply only to the “named insured” those words would have been used instead of “the insured.”

Where the language in a policy is clear and unambiguous it must be taken in its plain, ordinary and popular sense. Miller v. Madison County Mut. Auto Ins. Co., 46 Ill App2d 413, 197 NE2d 153; Dodge v. Allstate Ins. Co., 89 Ill App2d 405; 233 NE2d 100; and Consumers Const. Co. v. American Motorists Ins. Co., 118 Ill App2d 441, 254 NE2d 265. In the instant case the exclusion against a claim made by a parent of the insured is clear and unequivocal. There being no ambiguities contained within the exclusionary clause of plaintiff’s policy, neither coverage nor protection is afforded to the claim of Clotilde Avella, the parent, against Anna Mugnaini, her daughter and the insured.

We would note that our holding is in accord with the purpose of an exclusionary clause which is to avoid the possibility of collusive claims in a close, overfriendly and intimate relationship between family members. See Kentucky Farm Bureau Mutual Ins. Co. v. Harp (Ky Ct of App), 423 SW2d 233, and Perry v. Southern Farm Bureau Cas. Co., 251 Miss 544,170 So2d 628.

The judgment of the trial court granting Avella’s motion for summary judgment is reversed and the cause is remanded with directions to conduct further proceedings not inconsistent with this opinion.

Reversed and remanded with directions.

STAMOS, P. J. and ENGLISH, J., concur.


author: PER CURIAM.

text:
    Nancy L. Lock (Nee Lutz), Plaintiff-Appellant, v. Carlton W. Lutz, Defendant-Appellee.
    Gen. No. 69-154.
    Fifth District.
    September 10, 1970.
    Pratt, Mosele, Cohn & Day, of East Alton, for appellant; John W. Hoefert, of Alton, for appellee.
   Opinion

PER CURIAM.

Not to be published in full.


author: ALLOY, J.

text:
    Anthony Perino and Marquette National Bank, as Trustee Under Trust No. 2400, Plaintiffs-Appellees, v. Protect-All-Shelters, Inc., an Illinois Corporation, Paul B. Stadtler, M. N. Vernon, and George M. Novak, Defendants, George M. Novak, Appellant.
    Gen. No. 68-38.
    Third District.
    September 11, 1970.
    Walter C. Wellman, of Lyons, for appellant.
    Krusemark & Bertani, of Joliet, for appellee.
   ALLOY, J.

Plaintiffs Anthony Perino and Marquette National Bank, as Trustee under a certain trust, initiated an action for specific performance as a seller under a contract for sale of real estate. The original contract was entered into between Perino, as seller, and Protect-All-Shelters, Inc., an Illinois corporation, on June 6, 1963. Legal title to the land was in the name of Marquette National Bank as Trustee under a land trust for the sole benefit of Anthony Ferino. The agreement covered 38.74 acres of land in Will County for an agreed sale price of $83,800. It was contemplated by the purchaser that it would subdivide the land into Spencer Highlands Subdivision Unit No. 2. Purchaser was to pay $1,000 on the $83,800 purchase price for each lot selected for the first 83 lots and $800 per lot for the balance selected. The purchaser was to select only lots fronting on Ricky Drive and, thereafter, on the street immediately east and parallel to Ricky Drive. The agreement also provided that the purchaser was to pay a total of $25,000 on or before December 1, 1963, $10,000 on or before January 15, 1964, and $15,000 on or before April 15, 1964, and the entire balance on or before December 31, 1965. In addition to other standard provisions, in Paragraph VI it was specifically provided that in the event the purchaser shall not pay $25,000 of the purchase price on or before December 1, 1963, or in the event the entire purchase price shall not have been paid on or before December 31, 1965, then upon twenty (20) days’ prior notice to the purchaser advising it of its default or defaults hereunder, and providing further that the same are not cured within said period of time, the agreement and all rights and interest of the purchaser therein would be forfeited and terminated and any and all moneys paid by the purchaser shall be forfeited and retained by the seller in full satisfaction and liquidation of all damages sustained by the seller. It was further provided that all titles to real estate previously obtained by the purchaser would be retained by it, its nominee or designee and the parties thereafter would be “fully and completely relieved of any and all obligations” under the terms of the contract. The original contract was signed by Anthony Ferino as sole beneficiary under the land trust as seller and Protect-All-Shelters, Inc., by Paul Stadtler as president and attested by M. N. Vernon as secretary. Marquette National Bank also signed agreeing to be bound by the terms of the contract.

On the trial of the cause it was shown that Protect-All-Shelters, Inc. was not able to obtain approval of the subdivision plat of the property being purchased and as a result, the corporation was in serious financial difficulty, which finally resulted in the corporation being involuntarily dissolved. It was clear at this time that defendant-purchaser would not be able to pay the required $25,000 due by December 1, 1963. As a result, Mr. Perino, Mr. Vernon and Mr. Stadtler met at Marquette Bank on December 6,1963, to work out an amendment of the June 6,1963, agreement. The amendment provided that it was an amendment to the original agreement. The amendment recited, in lieu of the $25,000 due on or before December 1, 1963, that $10,000 was to be paid on or before January 15,1964, and $15,000 on or before April 15, 1964. There was also a change in the area where lots could be selected which permitted the buyers a larger selection. The forfeiture provision in Item VI was amended to show the change from $25,000 due on or before December 1, 1963, to the payments due in January and April, 1964, referred to. The amendment was signed by Perino as seller and by Paul B. Stadtler as president and M. N. Vernon as secretary respectively of Protect-All-Shelters, Inc., a corporation. The amendment was also signed by Paul B. Stadtler, M. N. Vernon and George M. Novak over signature lines noted below with the designation “individually.”

There was evidence at the trial of the action that Perino would not agree to the extension unless Stadtler, Vernon and Novak agreed to be personally responsible under the agreement. The names of Stadtler, Vernon and Novak which were signed to the amendment do not appear in the body of the amendment.

On January 16, 1964, M. N. Vernon, Inc., gave the trustee Marquette Bank a check for $5,000 as payment for conveyance of five lots. The trustee cashed the check and Mr. Vernon took the deed to the lots. He kept this deed until June 1964 but did not record it. In June 1964, he returned the deed to the five lots to the trustee and it is still held by the trustee and has never been recorded. There was evidence that this deed was given to Vernon to be used for the purpose of negotiating for purchase of a six-inch strip of ground which was needed to allow lots to be laid out in the proposed subdivision.

On April 27, 1964, the trust officer of Marquette National Bank wrote Protect-All-Shelters, Inc. c/o Novak and Novak in Chicago, a letter as follows:

“MARQUETTE NATIONAL BANK “63rd and Western Avenue Chicago 36 Rlinois
“GRovehill 6-5100
“April 27,1964
“Protect-All-Shelters, Inc.,
“c/o Novak and Novak, Attorney at Law,
“77 West Washington Street,
“Chicago, Illinois
“Re: Our Land Trust #2400 “Protect-All-Shelters, Inc.— “purchaser,
“Anthony Ferino — seller
“Gentlemen:
“Pursuant to the terms of Agreement dated June 6, 1963, as amended December 6, 1963, between the above parties, there was due to be paid on or before April 15, 1964, by the purchaser, the additional sum of $15,000.
“Since this sum was not paid, as provided, we hereby serve you notice of default and in accordance with provision VI of said Agreement, we hereby further notify you that unless said default is cured by depositing with us said sum of $15,000 on or before May 18, 1964, said Agreement shall be forfeited including the rights and interests of the purchaser thereunder.
“MARQUETTE NATIONAL BANK, as Trustee under Trust #2400,
“By: /S/ ROBERT J. WESLEY Trust Officer
cc: Anthony Ferino”

Ferino, when shown a copy of the letter, stated that the first time he saw it was in court, but he admitted that a carbon copy might have come to him. The trust officer who signed the April 27, 1964 letter, testified that he had talked to Ferino either the day before or the same day the letter was sent out. He also stated that Mr. Ferino told him he hoped to find some other party to purchase the land. The trust officer contacted an attorney who said the forfeiture notice would be required to comply with the provisions of the agreement to terminate the agreement. There was testimony that Mr. Ferino was called and that the letter was sent out pursuant to Mr. Perino’s instruction.

The evidence presented at the trial disclosed that after the original contract was entered into there was a change in the rules of Will County Health Department with the result that only 90 lots could be laid out on the tract involved instead of the 130 lots originally planned. Ferino had nothing to do with the change in the rules or the number of lots which thereafter could be built because of percolation tests on the tract.

During the trial of the specific performance action there was evidence presented with respect to a six-inch strip of ground (which strip was located between the tract being sold and Ricky Drive). At the time the contract was entered into this six-inch strip of ground was owned by a Mr. McTee. The evidence showed that Ferino had sold the property to McTee in 1961 and that McTee had subdivided it into Spencer Highlands Subdivision No. 1. McTee purchased 341 feet from Ferino and McTee’s Spencer Highlands Subdivision No. 1 was laid out using 340.5 feet, with the remaining six inches being on the east side of Ricky Drive so that there could be no access from the property which is the subject of the instant specific performance action directly onto Ricky Drive unless an easement was obtained over the six-inch strip. There was some dispute as to whether the existence of this six-inch strip was known by Novak, Stadtler and Vernon prior to the time they signed the amendment to the agreement in December 1963. There was evidence to show that the individual defendants had tried to obtain title to the strip from McTee, and, in fact, paid $5,000 for the five lots in order to use the lots to bargain with McTee for the strip.

In the complaint by Ferino and Marquette Bank, action was instituted against the Protect-All-Shelters, Inc., a corporation, and the three individuals who had signed the amendment. At the close of the case the court decreed specific performance and directed that the defendants pay the balance due on the contract of $73,800 within ten days, on receipt of a deed to such land. The decree further provided that on failure to pay such amount, a judgment be entered against all defendants for $73,800.

Issues involved in this case were (1) whether the letter of April 27, 1964, amounted to a forfeiture of the contract and thus prevented plaintiff from seeking specific performance of the contract, (2) whether the individual defendants Stadtler, Vernon and Novak became obligated personally by affixing their signatures to the December 6, 1963, amendment to the original agreement between Ferino and Protect-All-Shelters, Inc., a corporation, (3) whether the plaintiff Ferino was guilty of fraud in securing the execution of the June 6, 1963, agreement, (4) whether the contract was cancelled by a verbal agreement between Mr. Ferino and defendant Vernon when the $5,000 was paid and the deed to the five lots was thereafter returned, (5) whether the finding of the trial judge was contrary to the manifest weight of the evidence, and (6) whether the trial judge was correct in ordering specific performance and a judgment for $73,800.

A fundamental issue for determination is whether the letter of April 27, 1964, effected a forfeiture of the contract. If such forfeiture was actually made, plaintiff could not maintain the action for specific performance, and the remaining issues need not be determined.

It is noted that the letter of April 27, 1964, specifically recited that it was served pursuant to Article VI of the contract. It provided that unless the default was cured by depositing with the bank the sum of $15,000 on or before May 18, 1964, the agreement would be forfeited (including the rights and interest of the purchaser thereunder). It is clear that a vendor under a contract could not forfeit the contract and also seek specific performance. As noted in Solomon Iron & Metal Co. v. Bradford, 33 Ill App2d 452, at 455, 179 NE2d 697:

“It is apparent that a vendor cannot at the same time forfeit or rescind a contract and also insist upon payment of the purchase price (Wollenberger v. Hoover, 346 Ill 511, 544, 179 NE 42). It is pointed out that the remedy based on the theory of affirmance of a contract is inconsistent with the remedy arising out of the same facts based on a contrary theory of disaffirmance or rescission. Obviously, if a vendor cancels the contract he cannot inconsistently continue the liability of a purchaser for the purchase money.”

Supporting the same principle are Jones v. Dove, 382 Ill 445, 47 NE2d 447 and Hayne v. Fenton, 321 Ill 442, 151 NE 887.

While the plaintiff Ferino denies any knowledge of the letter and also denies directing that it be sent, the representative of the bank who signed the letter testified that he conferred with Ferino before and after sending the letter and, in fact, consulted an attorney for Ferino before wording the letter to be sure that he was complying with the terms of the contract. He also testified that Ferino told him that he (Ferino) hoped to find some other party to purchase the property.

It is contended by Ferino that the return of the deed to the five lots which had been given to Vernon on January 16, 1964 (prior to the forfeiture notice) supports the contention that there was no forfeiture of the agreement. Vernon had testified that he paid $5,000 for the deed to the five lots and attempted to exchange the five lots for the six-inch strip so as to make it possible to go ahead with the subdivision. That deal fell through. He returned the deed to Ferino on June 15,1964, for the stated purpose of eliminating any further obligation under the contract. On appeal in this Court, Vernon contends that he is entitled to a refund of the $5,000 which he paid for the deed to the five lots prior to the forfeiture notice.

Whether the individual defendants are considered to be principals or guarantors, all of the parties to the agreement and the amendment to the agreement had entered into an arrangement in which the corporation, Protect-All-Shelters, Inc., was still named and carried as the nominal principal and the nominal purchaser. The notice of forfeiture was given to such principal, and there was no contention by the individuals that such notice was inadequate. On the contrary, defendants contend that the forfeiture notice effectively terminated the agreement. On the basis of our review of the record, we must agree with such contention. Nor do we believe that the record sustains the contention of plaintiff that the notice of forfeiture could be construed as an effort by plaintiffs simply to eliminate the interest of Protect-All-Shelters, Inc. while still retaining the three individual defendants as responsible parties on the contract. The forfeiture notice contained no specification or language which would justify construction. The notice expressed a clear and unequivocal intention to forfeit the contract.

In view of the evidence in the record, however, we do not believe that Vernon is entitled to a return of the $5,000 payment made for the five lots. His testimony was to the effect that the deed was returned for the purpose of eliminating any obligation under the terms of the contract and not, as Perino contends, to procure an extension of time to perform under the contract. We do not believe that the record sustains Perino’s contention.

For the reasons stated, therefore, the judgment of the Circuit Court of Will County will be reversed and this cause is remanded to such court with directions to vacate the decree and the judgment entered in this cause, and to enter judgment in favor of defendants in this cause in accordance with the views expressed in this opinion.

Reversed and remanded with directions.

RYAN, P. J. and STOUDER, J., concur.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Adam Rodriguez, Defendant-Appellant.
    Gen. No. 54,387.
    First District, Fourth Division.
    September 9, 1970.
    Rehearing denied October 8, 1970.

      Wesley S. Walton, of Chicago, for appellant.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Robert A. Novelle and Alan M. Polikoff, Assistant State’s Attorneys, of counsel), for appellee.

       § 9-2. Voluntary Manslaughter
      (a) A person who kills an individual without lawful justification commits voluntary manslaughter if at the time of the killing he is acting under a sudden and intense passion resulting from serious provocation by:
      (1) The individual killed, or
      (2) Another whom the offender endeavors to kill, but he negligently or accidentally causes the death of the individual killed.

        Serious provocation is conduct sufficient to excite an intense passion in a reasonable person.
      (b) A person who intentionally or knowingly kills an individual commits voluntary manslaughter if at the time of the killing he believes the circumstances to be such that, if they existed, would justify or exonerate the killing under the principles stated in Article 7 of this Code, but his belief is unreasonable.
      § 7 — 1. Use of Force in Defense of Person
      A person is justified in the use of force against another when and to the extent that he reasonably believes that such conduct is necessary to defend himself or another against such other’s imminent use of unlawful force. However, he is justified in the use of force which is intended or likely to cause death or great bodily harm only if he reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or another, or the commission of a forcible felony.

   MR. JUSTICE ENGLISH

delivered the opinion of the court.

OFFENSE CHARGED

Murder. Ill Rev Stats 1965, c 38, §§9-1, 9-1 (a) (2). JUDGMENT

After a bench trial, defendant was found guilty of the lesser included offense of voluntary manslaughter (Ill Rev Stats 1965, c 38, § 9-2) and sentenced to a term of 3 to 10 years.

CONTENTION RAISED ON APPEAL

Defendant was not proven guilty beyond a reasonable doubt of the offense of voluntary manslaughter.

EVIDENCE

Eileen Sanchez, for the State:

She is a daughter of the deceased, Antonio Sanchez, and on the evening of June 10, 1967, attended a party at his house where defendant was present. There were between 10 and 20 people at the party, mostly from her family. She danced with defendant, who was drinking a beer, and he told her that if she would “go away with him, he’d buy clothes, a house and a car” and she wouldn’t have to go to work. After the dance, she went to the kitchen to talk with a girl friend, when defendant came up from behind and began to hug and kiss her. She walked away from him because her father, who was looking at them, came toward them. She went to the bedroom and didn’t hear her father say anything to defendant.

Gladys Cortez, for the State:

She is a daughter of the deceased and was present at the party when defendant arrived at approximately 9:00 p. m. There were about 15 people present. She saw defendant’s wife carrying a paper bag that contained bullets.

Santos Gonsalez, for the State:

Deceased was his father-in-law. He saw defendant and his wife arrive at the party between 9:00 and 10:00 p. m. He was in the kitchen with defendant, deceased, and his brother, Hector, and overheard a conversation between defendant and deceased. Deceased told defendant that “in his house you have to show more respect.” Defendant said that he had a gun, and then stuck his hand in his pocket. Witness noticed a bulge in defendant’s pocket. Deceased told defendant that “he should go from his house and he didn’t want no part of him.” Deceased, who had no weapon, grabbed defendant’s elbow and “was showing him to the door.” He then gave defendant a small shove up the stairs and told him to get out. Defendant went out, and deceased moved up to the third step, when the witness heard a shot which he could see had been fired by defendant from outside the open window and screen door. Deceased had received a wound in his hand and rushed, with others, into the courtyard where he tried to get the gun away. Witness then saw defendant shoot deceased twice more and strike him in the face with his fist. At this point, the others were wrestling with defendant to pry the gun free, and deceased had fallen to the floor. The witness picked up a soda pop bottle, struck defendant from behind, and continued to strike defendant after he “went down.” Defendant’s wife was hitting the witness with some object at this time.

Hector Gonsalez, for the State:

His testimony with respect to the incident was similar to that of his brother, Santos. When he was coming out of the door, the last two shots were fired by defendant, and he saw that defendant and deceased were about two feet apart. Neither he nor his brother nor Antonio Sanchez, Jr., nor deceased had struck or threatened defendant prior to this time. He succeeded in taking the gun away from defendant. A gun was identified as the one used by defendant and was admitted into evidence.

George Sams, for the State:

He is a detective and arrested defendant on June 11, 1967, at approximately 4:45 a. m. At the time of the arrest, defendant had a bandage on his chest six inches long and two inches wide. He had conversations with the Gonsalez brothers, who stated that, after the shooting, they had struck defendant with a beer bottle. Santos Gonsalez told him that defendant had had a gun in his belt. He had a conversation with defendant at the police station and took a written statement from him which was introduced into evidence without objection. The statement was essentially the same as his testimony, set forth below, except he affirmatively stated that when someone handed him a bag with a gun in it, he fired three or four shots; then, when the gun was taken from him, he took the bag, which had bullets in it, and he and his wife ran home.

Jose Mercado, for the defense:

He knew defendant and saw him on the day in question on the ground in an alley where fifteen people were hitting him. He watched for two minutes from a distance of twenty feet. The alley was approximately 20 feet wide and he was standing to the side. He was attracted to the alley because of screaming and “everything going on,” and saw defendant being beaten. He heard shots, although he didn’t see who fired them, and ran.

Felix Alvarez, for the defense:

He was with Jose Mercado on the night in question and saw defendant, whom he knew, “on the floor” in an alley. He did not see anyone else.

Carmen Rodriguez, for the defense:

She is. defendant’s wife and attended the party with him. They arrived at 8:00 p. m. or 9:00 p. m. and “the lady of the house invited my husband to dance.” Deceased then told the lady not to dance again with defendant. Defendant then went to the kitchen to get a beer and deceased grabbed him around the neck and told him that he wanted to fight. Defendant said he didn’t want to fight, but deceased took him out the rear door. Deceased’s son had a bat with which he hit defendant. The witness was hit in the face with the bat by Santos Gonsalez. There were fifteen people, all hitting her husband with bats and clubs for more than an hour while he was on the floor. She "took him away” in a cab to prevent his being killed. He was badly beaten and full of blood.

Adam Rodriguez, in his own behalf:

He had known deceased as a friend for seven years, and deceased asked him to come to the party. He and his wife went and there were between 25 and 28 people. He danced with deceased’s daughter and wife and drank two beers. He then left for ten minutes and bought eighteen cans of beer and a pint of whiskey. He returned and danced with deceased’s wife. After the dance, deceased told her "to go to sleep, son of a bitch, don’t dance no more with him.” Deceased then came into the kitchen, grabbed him by his collar, and pushed him out the door into the alley. Deceased’s son hit him with a bat across the back of the head. They knocked him to the floor and the “whole bunch” jumped him, and he was beaten across his chest and head. He was hit with a club and a rubber water pipe, and had two of his front teeth kicked out. This continued for ten minutes when someone dropped a bag and said, “there is a gun inside, defend yourself.” He was not carrying a gun with him, nor was his wife carrying a bag at the party. Someone said he fired a few shots, but he didn’t know if he did. His wife pulled him into the alley to try to straighten him up because of a pain in his neck. They ran down the alley because “the bunch” came toward them again and went home. He called his mother and told her to call the police “to come pick him up” because “they said there was a couple of shots fired.” He made a statement which he signed. He spent six days in the County Jail hospital. His head and chest were swollen and he was bleeding from the nose and mouth.

OPINION

Defendant’s sole contention on appeal is that the evidence is insufficient to sustain a conviction for voluntary manslaughter under either paragraph of the statutory definition of that crime as quoted in the footnote above.

Primarily, he argues that the testimony of the State’s witnesses, if believed, could not support a conviction for that crime under paragraph (a) because there is no evidence of serious provocation that would have caused "defendant to act “under a sudden and intense passion.” In the alternative, he asserts that if the testimony of the defense witnesses is believed, then the only conclusion to be drawn is that defendant justifiably acted in self-defense or that his belief in the necessity for the use of deadly force was reasonable under paragraph (b).

The proposition is correct, as stated by defendant, that without evidence of serious provocation, mere words not being sufficient, a finding of voluntary manslaughter under paragraph (a) cannot stand, citing People v. Lopez, 93 Ill App2d 426, 235 NE2d 652; People v. Brown, 78 Ill App2d 327, 223 NE2d 311; People v. McMurry, 64 Ill App2d 248, 212 NE2d 7; People v. Bailey, 56 Ill App2d 261, 205 NE2d 756. While there exist significant differences in the testimony adduced by the State and by defendant, we find that, when the evidence is taken as a whole, there is a definite resolution of the issue of provocation. It is apparent that deceased displayed a hostile attitude toward defendant during the course of the party. This is borne out by the testimony of Eileen Sanchez who stated that deceased saw defendant hug and kiss her and then come toward them. Then, as related by the Gonsalez brothers, a quarrel ensued in which deceased and defendant exchanged strong words, with defendant stating that he had a gun. Deceased ordered him to leave the house and grabbed his elbow, shoving him toward the door. Defendant’s wife’s account was that deceased attempted to prod defendant into a fight and collared him about the neck before taking him outside. Defendant’s own version was that deceased approached deceased’s wife after she had danced with defendant, and told her to stop dancing with him and to go to sleep; that deceased then came to the kitchen and grabbed defendant by the throat and neck and pushed him outside where he was hit with a bat. This testimony, regardless of the fact that some of it originated with defense witnesses, indicates that more than “mere words” passed between deceased and defendant. It was sufficient to warrant the court’s finding that, at the time of the killing, defendant was “acting under a sudden and intense passion resulting from serious provocation” by deceased. People v. Cooke, 93 Ill App2d 376, 236 NE2d 97.

With respect to defendant’s assertion that he acted in self-defense, this is essentially an issue of fact for the trial judge whose duty it was to resolve conflicts in the testimony in the light of paragraph (b) of the section defining voluntary manslaughter. See footnote above. People v. Johnson, 108 Ill App2d 150, 156, 247 NE2d 10. Here, the trial court obviously believed the testimony that defendant fired the fatal shots before he was attacked by deceased’s relatives, and rejected the contrary account of the incident by defense witnesses. People v. Jordan, 18 Ill2d 489, 492, 165 NE2d 296. On this state of the record, we will not substitute our judgment for that of the trier of fact. People v. Parker, 120 Ill App2d 71, 78,256 NE2d 67.

We conclude that the evidence was sufficient to establish guilt under either paragraph (a) or (b) of section 9-2 of the Criminal Code. Ill Rev Stats 1965, c 38, § 9-2 (a) and (b).

Accordingly, the judgment is affirmed.

Affirmed.

DRUCKER and LEIGHTON, JJ., concur.


author: JUSTICE ABRAHAMSON.

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Roger L. Knell, Defendant-Appellant.
    Gen. No. 69-136.
    Second District.
    September 11, 1970.
    William Bomp, of Loves Park, for appellant;
    Philip G. Reinhard, State’s Attorney of Winnebago County, of Rockford, and William R. Beu, Assistant State’s Attorney of Rockford, for appellee.
   Opinion by

JUSTICE ABRAHAMSON.

Not to be published in full.


author: JUSTICE THOMAS J. MORAN

text:
    Larry Allen Powers, a Minor, by Mary Ann Powers, His Mother and Next Friend, and Kenton L. Powers, Individually, Plaintiffs-Appellants, v. Larry S. Telander, Carol Hollenbaugh, George R. Schroeder, Winnebago County Superintendent of Highways, County of Winnebago, District Engineer, Division of Highways, District No. 2, and Department of Public Works and Buildings, Defendants-Appellees.
    Gen. No. 70-1.
    Second District.
    September 11, 1970.

      Maynard and Brassfield, of Rockford, for appellants.
    William J. Scott, Attorney General of State of Illinois, of Chicago, and Francis T. Crowe, Assistant Attorney General, of Chicago, for appellees.
   JUSTICE THOMAS J. MORAN

delivered the opinion of the court.

The plaintiffs brought suit against, among others, the District Engineer, Division of Highways, District #2, and Department of Public Works and Buildings for personal injuries occurring on a State highway in Winnebago County, Illinois.

The State entered a special and limited appearance and moved for a dismissal of the action as to the above named defendants on the ground that the trial court was without jurisdiction. The motion was founded upon Article IV, section 26 of the Illinois Constitution which states: “The State of Illinois shall never be made defendant in any court of law or equity.” The motion was allowed and the court found no just reason for delaying enforcement or appeal of its order. Consequently, this appeal followed.

The complaint, as it concerns the two named defendants, alleged that they were insured at the time of the occurrence; the policy of insurance waived the constitutional prohibition set forth above and the policy fully and adequately protects the defendants from any personal liability arising out of the lawsuit.

Plaintiffs’ position on appeal is that (1) Article IV, section 26 of our constitution is not an absolute prohibition, but an available defense depending upon whether the relief sought would or would not adversely affect the State, and (2) since the constitutional provision was waived by the terms of the insurance policy, the defendants were subject to the jurisdiction of the court.

Plaintiffs do not seek to attack the constitutional prohibition but desire to avail themselves of the doctrines expressed in Moore v. Moyle, 405 Ill 555, 92 NE2d 81 (1950) and Molitor v. Kaneland Community Unit Dist. No. 302,18 Ill2d 11,163 NE2d 89 (1959). In Moore, complete immunity from tort liability of charitable institutions was overturned and in Molitor the same result was accomplished with regard to governmental agencies.

Prior to Moore, the rule of law exempting charitable institutions from liability for negligent acts of its servants was bottomed upon the theory that to allow recovery would in effect divert the corpus of the trust to purposes other than those intended by the donor. Parks v. Northwestern University, 218 Ill 381, 75 NE 991 (1905). Since Parks, but before Moore, districts of the Appellate Court differed as to whether such immunity was absolute when the pleadings disclosed liability insurance. See, Myers v. Young Men’s Christian Ass’n of Quincy, Ill., 316 Ill App 177, 44 NE2d 755 (1942); Piper v. Epstein, 326 Ill App 400, 62 NE2d 139 (1945) and Wendt v. Servite Fathers, 332 Ill App 618, 76 NE2d 342 (1947).

However, with Moore, the Court, after affirming the principle enunciated in Parks (trust funds of charitable institutions are immune from liability arising out of torts committed by its servants), extended the rule by eradicating absolute immunity and allowing recovery where it could be shown that the corpus of the trust would not be impaired or depleted. (However, see the comment in Molitor, supra, pp 19-20.)

Prior to Molitor, sovereign immunity from tort liability was extended from the State to local governmental units by court decisions. The decisions reasoned that protection of public funds in governmental immunity cases was as essential as protection of trust funds in charitable immunity cases. However, Molitor discarded the protection of public funds theory.

In Moore, the complaint alleged that the charitable institution involved was fully insured and its trust funds would not be affected (same as the instant case). In Molitor, there was no similar allegation. However, both cases were alike in at least two respects, they both involved tort immunity and this immunity was created by the courts. In the case at bar, the immunity in question originated in the Illinois constitution.

Plaintiffs suggest that we examine the constitutional provision with the same progressive reasoning as the Supreme Court applied in Moore and Molitor. It is argued that if we were to apply the rule of law found in Moore (that charitable institutions do not enjoy absolute immunity) to the provision in question; then add the language found in Molitor (that protection of public funds is not a valid reason in today’s society for continuing the immunity rule), especially where, as in the instant case, there is insurance coverage, we would then conclude that the plaintiffs could maintain their suit against the defendants.

What the plaintiffs seem to have overlooked is the fact that we are here concerned with a constitutional prohibition and not a court created rule of law. It is our duty to interpret the constitution, not overrule it by avoiding its plain language. It is our opinion that the immunity granted to the State by Article IV, section 26, is absolute.

Plaintiffs argue that in many instances the legislature has passed, and the Supreme Court has approved, various legislative enactments which have allowed the State to be sued. They cite, The People v. Illinois Toll Highway Commission, 3 Ill2d 218, 120 NE2d 35 (1954) as an example. In that case, the defendant broached the same argument as found herein. The question of absolute immunity was not before the court. The question revolved around whether the defendant was in fact a part of the State. The Court found it not to be a part of the State but an independent entity and under no circumstances could the funds of the State be reached to satisfy its obligations. We do not find that case to be analogous to the circumstances in the case before us.

The question then arises as to the legal status of the defendants herein. As to the defendant, Department of Public Works and Buildings our Supreme Court has determined that it is a part of State government and not subject to suit. Noorman v. Department of Public Works and Buildings, 366 Ill 216, 222, 8 NE2d 637 (1937) and Posinski v. Chicago, M., St. P. & P. R. Co., 376 Ill 346, 350, 33 NE2d 869 (1941). As to the defendant, District Engineer, Division of Highways, District #2, it should be noted that the plaintiffs have named the office and not any individual. Whether suit against the Director is in fact a suit against the State depends upon the type of action brought and the relief sought. The case before us is one grounded in negligence and the relief sought is money damages. In reality it is a suit against the State and therefore prohibited. Posinski, supra, 351.

The plaintiffs final contention is that the constitutional prohibition against the State being sued was waived by the issuance of the insurance policy since public funds would not be affected.

The State is immune from suit without its consent. Clark v. State of Illinois, Department of Labor, 71 Ill App2d 365, 372, 219 NE2d 143 (1966); and the consent must be expressed by affirmative action of the General Assembly, Edelen v. Hogsett, 44 Ill2d 215, 217, 254 NE2d 435 (1969). Even the Attorney General of Illinois does not have the power to waive this constitutional prohibition, as the sole authority to do so rests with the legislature, The People v. Sanitary Dist. of Chicago, 210 Ill 171, 173-174, 71 NE 334 (1904). Applying this law to the facts of this case, we find that there has been no effective waiver on the part of the defendants.

Judgment affirmed.

DAVIS, P. J. and ABRAHAMSON, J., concur.


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    Agatha Barnes, Plaintiff-Appellant, v. William Powell, Defendant-Appellee. LaSalle National Insurance Company, a Corporation, Intervenor-Appellee, v. Agatha Barnes and William Powell, Respondents-Appellants.
    Gen. No. 69-86.
    Third District.
    September 11, 1970.

      John P. Hayes, John B. Cashion, and Martin Smith, of Chicago, for appellant.
    Robson, Masters, Ryan, Brumund & Belom, of Joliet, and Sidney Z. Karasik, of Chicago, for appellee.
   ALLOY, J.

Plaintiff Agatha Barnes was injured while riding as a passenger in an automobile owned by her and her husband and driven by a friend to whom she had given permission to drive the automobile. The driver had no automobile insurance of his own. Plaintiff asserts a right to recover against the insurance company which insured the automobile (her husband's insurance company), on the theory that the driver to whom she had loaned the automobile was an uninsured motorist.

The record discloses that plaintiff was riding in an automobile driven by William Powell which was involved in a one-car accident when it ran off the road striking a large rock. On the date of the accident, the certificate of title to the automobile was in the name of Ernest Barnes, although the bill of sale for the automobile contained the names of both Ernest Barnes and Agatha Barnes and the automobile was also licensed in both names. Ernest Barnes, husband of plaintiff, was named an insured on the automobile insurance policy of LaSalle National Insurance Company. Mrs. Barnes and her husband were separated in October, 1964. William Powell, the defendant, was a tenant in an upstairs apartment rented to him by plaintiff Mrs. Barnes. She had given defendant William Powell permission to drive the automobile, and was riding in the automobile owned by her and her husband as a passenger at the time of the accident.

After Mrs. Barnes filed an action against William Powell, LaSalle National Insurance Company (which insured the automobile) intervened and asked for a declaratory judgment determining whether LaSalle National Insurance Company was responsible under.its policy to defend William Powell and pay up to the policy limits in the event Powell was found liable for the accident. Plaintiff answered and counterclaimed for declaratory judgment requesting a determination as to whether she had any coverage for her injuries under the “Uninsured Motorists Coverage” section of the LaSalle National Insurance Company policy. The pleadings admitted that William Powell had no insurance policy of his own. It was also admitted at a hearing that plaintiff Mrs. Barnes was not entitled to any coverage under the liability section of the LaSalle policy, which was in the amount of $20,000-$40,000. The policy contained a $1,000 medical coverage provision and the LaSalle Company admitted that this amount was due Mrs. Barnes. The policy also contained a $10,000-$20,000 uninsured motorist coverage provision. This provision specified that the company would pay all sums which the insured or his legal representative would be legally entitled to recover as damages from the owner or operator of an “uninsured automobile” because of bodily injury sustained by the insured caused by accident and arising out of “the ownership, maintenance or use of such uninsured automobile.” It also contained an arbitration clause. The policy identified persons “insured” as the named insured and any relative and any other person while occupying an insured automobile. An insured automobile is defined as an owned automobile used by the insured or “by any other person to whom the named insured has given permission to use such automobile.” An “uninsured automobile” is defined in the policy as an automobile in which there is “no bodily injury or liability bond or insurance policy applicable ... for the use of such automobile.” There is also an express provision that “uninsured automobile” shall not include “an insured automobile.” The “named” insured was specifically designated to mean the individual or husband and wife named in the declaration.

On May 13, 1969, the trial court entered an order finding that there was no coverage for plaintiff under either the “liability” or “uninsured motorist” coverages of the LaSalle policy. On appeal in this Court, plaintiff specifically contends that the “uninsured motorist” coverage should be made available to plaintiff; that such coverage was not reduced by the $1,000 medical pay provision ; and, that the arbitration clause of the policy was invalid.

At least in a factual sense, we are dealing with a novel question, since there are no cases which have been called to our attention or that we have discovered which dealt with the problem of a single car accident involving an automobile owned by a plaintiff, where the driver is selected or approved by plaintiff and the owner as a passenger is injured in the accident. Under the wording contained in the LaSalle insurance policy, it is made reasonably clear that the uninsured motorist coverage was not designed to be available to plaintiff. The policy refers to damages from the owner or operator of “an uninsured automobile.” Obviously, the automobile in the case before us was not an “uninsured automobile,” since there was a policy of insurance covering it. The policy likewise specifically provides that an “uninsured automobile” could not be an “insured automobile” such as the automobile in the case before us. Counsel for the parties substantially agreed that under the policy terms there was no uninsured motorist coverage specifically provided for. It is contended, however, that the policy must be regarded as providing uninsured motorist coverage, irrespective of the policy language, in view of the public policy of this state and the statute providing for uninsured motorist coverage (1969 Ill Rev Stats, c 73, § 755a).

The argument of plaintiff is based principally on the language of the court in the case of Smiley v. Estate of Toney, 44 Ill2d 127, 254 NE2d 440. In the Smiley case, two cars were involved in an accident where the driver of the car causing the accident had liability insurance with $20,000-$40,000 limits. Plaintiffs recovered a judgment for more than defendant’s liability limits and sought to recover from their own insurance company for the difference, on the theory that the driver of the other automobile was “uninsured” to the extent that their damages exceeded the proceeds of the other driver’s liability insurance. It was argued in that case that the restrictive definition of an uninsured vehicle contained in that insurance policy was invalid because it conflicts with the purpose of the uninsured motorists section of the Insurance Code. The Supreme Court in that case refused to expand the uninsured motorist coverage to allow plaintiff to recover on the theory that the driver of the automobile causing the accident was insured within the limits that met the minimum requirements of the Illinois Financial Responsibility Law, and that, therefore, the defendant was not an “uninsured motorist.” The court, however, in that case stated (at pages 130-1):

“We are not persuaded that the policy definition of an ‘uninsured vehicle’, if it is unambiguous, must always control the application of the statute. The statutory coverage is mandatory, and it may not be whittled away by an unduly restrictive definition. Indeed, the defendant concedes as much, pointing out that ‘research of the case law’ indicates that before the uninsured motorist provisions of a policy come into operation it is necessary ‘that the tortfeasor does, in fact, constitute an uninsured motorist, either being insured for less than the Financial Responsibility Law of the state in which the accident occurred, or by his insurance company denying coverage due to a variety of reasons.’ And indeed, it is generally recognized, for example, that despite a contrary policy definition, the purpose of an uninsured vehicle statute requires that a motorist be considered uninsured if he carried liability insurance in an amount below the minimum required by the financial responsibility law.”

The implication of the language of the Smiley case is that if the definition in the policy of what is an “uninsured motorist” is so strict that it actually circumvents the purpose of the statute relating to uninsured motorist coverage, the court would not hesitate to override the policy definition and use its own definition of what constitutes an uninsured motorist. We agree that insurance companies should not be permitted to “whittle away” the benefits of uninsured motorist coverage by restricting the definition of what constitutes an uninsured motorist. Upon this basis, plaintiff argues that the court should disregard the terms of the LaSalle policy and find that Powell was really an “uninsured motorist.”

We have noted, however, that in most of the Illinois cases involving interpretation of uninsured motorist coverage, the court has been dealing with the problem of conflicting “excess” and “pro rata” and “other insurance” clauses in the policies, and, in no case which has been called to our attention, has there been an effort to extend uninsured motorist coverage to a factual situation such as we have before us in the present case. In the Smiley case and in Tindall v. Farmers Automobile Management Corp., 83 Ill App2d 165, 226 NE2d 397, the courts refused to broaden the uninsured motorist coverage, basing their conclusion on the fact that the driver at fault was carrying insurance in compliance with the financial responsibility law.

In Dreher v. Aetna Casualty & Surety Co., 83 Ill App 2d 141, 226 NE2d 287, plaintiff was injured by another automobile and the driver of such automobile was insured by a company that became insolvent between the time of the accident and plaintiff’s recovery of a judgment. Plaintiff argued that he should have uninsured motorist coverage in this situation, but such coverage was refused by the court even though it felt that a liberal construction should be made in favor of the policyholder. The court in that case stated (at pages 143-4) that it found nothing either in the statute or case law to sustain the contention that the public policy of the state, at the time, required that an insurance company extend coverage beyond the terms of the contract of insurance to include an automobile which was insured at the time of the accident, but which subsequently became uninsured by reason of the insolvency of the carrier. We simply cite this case as an example of an interpretation which has been made by other Illinois courts in attempting to maintain the uninsured motorist coverage on a basis consistent with the statute.

Under section 755a (c 73, 1969 Ill Rev Stats) which requires insurance companies to offer uninsured motorist coverage on all automobile insurance policies, it is expressly provided that such insurance is offered for “protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles and hit-and-run motor vehicles.” As we interpret the statute, we find it difficult to rationalize a conclusion that liability should be imposed under such statute, as to one who drives the automobile with the owner’s permission and with the owner as the injured passenger in the car. While it may be argued that the driver is truly uninsured as to the plaintiff, since he had no automobile insurance policy of his own nor any liability coverage, we must note the fact that plaintiff herself gave Powell permission to drive the automobile and she got in and rode with him. As we read the statute, the theory of uninsured motorist coverage is to protect people from being injured by other drivers who have no insurance and, presumably, over whom they have no control. While it may be consistent with the broad ultimate objectives of uninsured motorist coverage to cover persons such as defendant in this case, we do not believe that we would be justified, under the statutory provisions, to extend the interpretation of uninsured motorist coverage to a situation such as we have in the instant case. It is our conclusion that, on the basis of the language of the act, the instant case involves a situation to which the act was not intended to apply. While we favor a liberal construction of all such statutory provisions, we agree that the facts before us present a unique situation which, in all probability, was not contemplated by the legislature when it enacted the statute. It is probable that other similar situations may arise and that the public policy of this state, as expressed by the legislature, should require a broadening of such coverage. As we have, indicated, however, we believe this is a legislative problem and we do not believe that we would be justified in interpreting the statute to provide for such coverage under the facts before us.

In view of our determination, the question of the effect of the arbitration provision and whether or not the $1,000 medical payment should be set off need not be discussed.

The judgment of the Circuit Court of Will County will, therefore, be affirmed.

Affirmed.

RYAN, P. J. and STOUDER, J., concur.


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    People of the State of Illinois, Plaintiff-Appellee, v. Steve Ira Turner, Defendant-Appellant.
    Gen. No. 69-98.
    Third District.
    September 11, 1970.

      Theodore A. Gottfried, of Ottawa, for appellant.
    James N. De Wulf, State’s Attorney of Rock Island County, of Rock Island, for appellee.
   ALLOY, J.

Defendant Steve Ira Turner was found to have violated his probation and was sentenced for the crime of burglary to which he had previously pleaded guilty. The sentence was fixed at two to ten years.

The record shows that defendant and a Mr. Bleyaert broke a window in a display case with a pop bottle and took two tape recorders. Defendant was drunk at the time of that crime. The tape recorders were thereafter returned. On February 13, 1968, defendant pleaded guilty to burglary and was granted probation for a two-year period. Approximately a year later on March 19, 1969, a probation revocation hearing was held. At the hearing there was extensive evidence offered of defendant’s escapades along with several other boys and two girls, ages 13 and 14, who represented themselves to be age 16. These two girls had run away from home and had spent part of the first night with a man. On the next day, as the two girls walked past a gas station, four boys, one of whom was defendant, called to them and they began talking. They got into a car with two of the boys and later ended up in defendant’s apartment. The girls drank beer in defendant’s apartment and spent time in the bedroom with various boys. One of the girls testified she had sexual intercourse with defendant. Defendant denied that he had sexual intercourse with the girl, but testified as to other improper sexual conduct with her while she spent the night in his apartment, along with the other girl and three other boys. Defendant testified that he thought both the girls were 16. The record shows that the girls were of very low moral character.

Two witnesses, defendant’s employers, testified at the hearing as to defendant’s honesty. The president of a Moline furniture and appliance business stated that he had loaned the defendant his car several times and that defendant always brought it back when he said he would. His partner testified that defendant had the keys to two of his stores which housed merchandise worth $175,000, and that the employers trusted defendant and felt that defendant should be put on probation. Following such hearing, the trial judge sentenced defendant on the original burglary conviction to a sentence of two to ten years. On appeal in this Court, defendant contends that the sentence is excessive and requests the Appellate Court to exercise its statutory power to reduce the sentence.

While there is no question that there was sufficient evidence of a probation violation, the sentence which was imposed in this case should relate directly to the crime of burglary and should not be a sentence for any possible crime committed after probation (People v. Morgan, 55 Ill App2d 157, 204 NE2d 314; People v. Smith, 105 Ill App2d 14, 245 NE2d 13). Under the terms of 1969 Ill Rev Stats, e 110A, Supreme Court Rule 615b (4), the reviewing court is authorized to modify sentences imposed by trial judges by reducing punishment imposed in the trial court.

As stated in People v. Taylor, 33 Ill2d 417, 211 NE2d 673, a reviewing court should proceed with caution in modifying the penalty imposed by the trial court. The court stated there that where it is contended that the punishment in a particular case is excessive, though within the limits prescribed by the legislature, a reviewing court should not disturb the sentence unless it clearly appears that the penalty constitutes a great departure from the fundamental law in its spirit or purpose or that it violates section 11 of Article II of the Illinois Constitution, which requires that all penalties shall be proportionate to the nature of the offense. In People v. Grigsby, 75 Ill App2d 184, 220 NE2d 498, where a five to fifteen-year sentence was reduced to two to five years, the defendant had pleaded guilty to burglary with intent to commit theft. The Appellate Court after citing the Taylor case referred to, which stressed caution in reducing sentences, stated that to countenance the sentence in that case would emasculate the obvious intent of the policy of the statute providing for review and reduction of sentence. In the Grigsby case, the defendant (age 27) was not armed when the crime was committed and it was his first offense. In People v. Marshall, 96 Ill App2d 124,238 NE2d 182, a sentence for robbery was reduced from five to twelve years to three to six years, even though defendant had a prior criminal record, which even included armed robbery and assault with a deadly weapon. The only reason which appears to have prompted reduction of the sentence in the Marshall case was the fact that defendant was unarmed and took only $8 and appeared to be an habitual drunkard.

Upon analysis of the record, the basic question remains as to whether the sentence of two to ten years in the instant case is a sentence which is really proportionate to the nature of the offense. It is noted that the original court action in the burglary case involved only a two-year period of probation. The defendant at the time of the commission of the burglary was drunk, was only 24 years of age, and it was also his first offense. Under the circumstances, we feel that the fixing of the ten-year maximum in this case was not consistent or proportionate to the nature of the offense involved. The sentence of defendant is, therefore, modified from the two to ten-year sentence as imposed in the Circuit Court of Rock Island County to a sentence of two to four years, with appropriate credit for all time served heretofore.

Affirmed and sentence modified.

RYAN, P. J. and STOUDER, J., concur.