text:
    Consumers Construction Company, a Corporation, Plaintiff-Appellant, v. American Motorists Insurance Company, a Corporation, Defendant-Appellee.
    Gen. No. 69-106.
    Second District.
    December 31, 1969.

      Geister, Schnell, Richards and Brown, of Elgin, Lewis W. Schlifkin and Jerome H. Torshen, of Chicago, for appellant.
    O’Brien, Burnell, Puckett and Barnett, of Aurora, for appellee.
   PRESIDING JUSTICE THOMAS J. MORAN

delivered the opinion of the court.

This is an appeal from a declaratory judgment action brought by the plaintiff, Consumers Construction Company, against the defendant, American Motorists Insurance Company. The trial court entered judgment for the defendant and denied the plaintiff’s post trial motion. The plaintiff appeals both rulings.

Plaintiff entered into a contract on April 2, 1962, with the Board of Education of School District No. 46 (Board) to construct an elementary school. The construction was completed on November 15, 1962. Prior to the contract, the defendant issued a Comprehensive General Liability Policy providing coverage to the plaintiff. A certificate of insurance, requested by the Board, was issued to it.

On August 20, 1965, the Board filed a complaint against the plaintiff which charged:

“5. That at divers times during the period of construction the defendant * and its subcontractors whose acts and omissions for which the defendant * is responsible under the terms of said contract, violated same by various acts and omissions contrary to the plans and specifications therein referred to, made a part thereof and provided for by the . . . architect or in the alternative, failed to construct said school in a good and workmanlike manner, to wit:

“(a) Employed subcontractors who were inexperienced in the work they undertook to perform.

“(b) Improperly constructed the caissons supporting the building.

“(c) Omitted the hangers that were to be provided under the cement slab for the support of various piping facilities.

“(d) Improperly supervised and directed various employees and subcontractors.” * (Plaintiff herein)

On March 28, 1967, plaintiff filed a complaint for declaratory judgment against the defendant alleging the issuance of the policy; the issuance of the certificate of insurance; the contract between the Board and the plaintiff; completion of the work; the instigation of the suit by the Board; the tender of the defense of that suit to the defendant; the refusal of the defendant to defend and the denial of coverage by the defendant.

Defendant answered the charges of the complaint and denied that their refusal to defend or provide coverage was contrary to the policy, and, by a subsequent and further defense asserted that certain exclusions in the policy specifically excluded the claim asserted in the Board’s complaint against the plaintiff.

The Board was allowed to intervene but such intervention has no effect upon the present questions since no appeal has been taken by it. It appears from the record that the court decided the case upon the basis of the pleadings, exhibits admitted by the court, a comprehensive memorandum of law filed by the parties and the arguments of counsel. Being so advised, the court found and ordered that defendant had no duty to defend plaintiff in the Board’s case, and that the policy in question provided no coverage to plaintiff under the allegations of that complaint.

The policy in question is composed of four pages of insuring agreements, a declaration page, two rating schedule pages, and 21 endorsements or amendments. It is complex; however, those portions pertinent to these proceedings are:

“Coverage B—Property Damage Liability. To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of injury to or destruction of property, including the loss of use thereof, caused by accident.
“Exclusions—This policy does not apply: . . .
“(h) Under Coverage B, to injury to or destruction of . . . (4) any goods, products or containers thereof manufactured, sold, handled or distributed or premises alienated by the named insured, or work completed by or for the named insured, out of which the accident arises; . . . .”

From one of the rating schedule pages, followed by rating figures, is the following:

“General Contracting—building construction (not prefabricated):
“Buildings—N.O.C.”

The parties agree that the exact question presented by the facts of this case and the provisions of the particular policy of insurance have never been passed upon by the courts of review in Illinois. This Court is unable to find precedent in this jurisdiction relating to the specific provisions of the policy but finds several well-reasoned and persuasive decisions from our sister jurisdictions which we believe dispose of the issues in this case.

Provisions identical in substance and almost word for word, were considered by the Court of Appeals of California in the case of Liberty Bldg. Co. v. Royal Indemnity Co., (Cal), 346 P2d 444 (1959). In that case the plaintiff, a building contractor, had' constructed a large number of stucco dwelling houses upon its own property, most of which were sold prior to completion. After the buyers took possession, many of the houses developed defects in the outside stucco walls. The buyers brought suit and others lodged complaints against the plaintiff. The plaintiff tendered the defense of the suit to the defendant insurance company which the insurer refused. Thereafter the plaintiff settled the claims upon the advice of counsel after discovering that the defects in the stucco were due to an improper mixture which allowed water to absorb into the stucco. Suit was brought by the plaintiff-contractor against the insurer to recover the amounts paid in settlement. The trial court dismissed the suit and this was affirmed on review.

In considering the coverage afforded by the policy and specifically the exclusion, the Court found that damage to the stucco was excluded from coverage of the policy. Its reasoning is succinct and is equally applicable to the case at bar. At page 446 of the opinion, the court stated:

“This breach was assigned as the came of the damage to the stucco, and defendant argues that such damage is excluded under the policy. In this connection, Exclusion (f) expressly excludes from liability under the policy, damage sustained by any ‘goods or products ... or premises alienated ... or work completed . . . out of which the accident arises.’ . . . This Exclusion means that if the insured becomes liable to replace or repair any ‘goods or products’ or ‘premises alienated’ or ‘work completed’ after the same has caused an accident because of a defective condition, the cost of such replacement or repair is not recoverable under the policy. However, if the accident also caused damage to some other property or caused personal injury, the insured’s liability for such damage or injury becomes a liability of the insurer under the policy, and is not excluded. For example, if a contractor builds a house and as a result of an improper mixture of the stucco, water is absorbed into the walls and the stucco cracks and falls off and a child is injured by the falling stucco, the injury to the child would not be excluded under Exclusion (f) but the replacement cost of the stucco would be excluded. Also, if the water absorbed into the walls should reach the interior walls and injure a valuable painting hanging there, the damage to the painting would be recoverable under the policy while the damage to the walls would not. The principle here applicable is well stated in Heyward v. American Casualty Company of Reading, Pa., D.C., 129 F Supp 4. At page 8 the court said: ‘This Exclusion means that the policy will not protect the insured if he has to repair or replace some product or work which proved defective and caused an accident. The Exclusion has no reference to liability for damage to other property or personal injury arising out of such accident.’ ”

In the present case the complaint is for the negligence in the performance of the contract by the plaintiff. The claim arises out of work completed by the insured for the “damage” caused by its work. No claim is made for damage to another’s property. The reasoning of the Liberty case is appropriate and, in this court’s view, the results should be the same.

Plaintiff maintains that there is further coverage under the policy of defendant by reason of the assessment of a particular premium in the premium schedule of “products—General Contracting—building construction (not prefabricated); Building—N.O.C.” It is maintained that the specific rating of this item on the rate schedule sheet provides products-hazard insurance and, therefore, defendant agreed to insure the final product rendered by plaintiff to the Board. Allegedly, the presence of this coverage creates an ambiguity and the exclusion set out in “h” (4) must be disregarded. This exact contention was considered by the Supreme Court of Appeals of West Virginia in the case of McGann v. Hobbs Lumber Co., 150 W Va 364, 145 SE2d 476 (1965). In that case the exact and identical coverage and exclusion language was used in the policy considered by the court as is before the court in this case. The schedule attached to the policy contained substantially identical rating information. Exclusion “(j) (4)” referred to in the opinion is identical with Exclusion (h) (4) in the present case. The court, at p 479, stated:

“The above quoted policy provisions give rise to this controversy. Aetna contends that the damage referred to in this case having occurred to work completed by Hobbs, the insured, Exclusion (j) (4) is operative, and no coverage is afforded. Hobbs, on the other hand, asserts that the inclusion of “(D) Products (Including Completed Operations)”, under the General Liability Schedule, is in direct conflict with the above quoted exclusion and creates an inconsistency in this policy. It must be kept in mind that the policy in question is a liability policy, not one insuring the property or work of the insured. Covered is any damage caused by the products or operations used or completed by the insured. In other words, if any product used in the operations of the insured or any work completed by the insured causes damage to any property of another for which the insured may be legally liable, the insurer is liable under this policy. This appears to lend coverage to Hobbs in this case, and it would, except for Exclusion (j) (4) contained in the policy. At this point Hobbs contends that such exclusion is in direct conflict with (D), listed under the General Liability Schedule and quoted above. We do not agree with this contention. The insuring agreement, Coverage D—Property Damage Liability—Except Automobile, and the items designated in the Liability Schedule, including (D), must be read together. These, where pertinent to this case, constitute the coverage afforded by this policy, subject to the exclusions. As noted above, Exclusion (j) (4) clearly provides that this policy does not apply to premises alienated by the insured or to work completed by the insured out of which the accident arises. It is undisputed that the damaged premises here involved was that alienated by the insured and was work completed by the insured out of which the accident arose.”

In that case Hobbs had been engaged to build a home for McGann. Several months after the home was delivered to McGann a portion of the foundation wall collapsed, resulting in substantial damages. Hobbs brought a third-party complaint against Aetna Insurance Company. The trial court, upon the motion for summary judgment filed upon the third party complaint, found that Hobbs was covered under the policies that Aetna had issued. The trial court was reversed and the cause was remanded.

Plaintiff argues that the Board was misled by reason of an endorsement typewritten on the back of the certificate of insurance issued on April 12, 1962, which provided as follows:

“Page 6 Article 27 of ‘THE GENERAL CONDITIONS OF THE CONTRACT FOR THE CONSTRUCTION OF BUILDINGS’ is amended to read as follows:
“That portion of Addendum #17 of the specifications as pertains to the Hold Harmless Agreements is amended to read:
“1. To indemnify and save harmless the Board of Education, School District No. 46, Cook, Kane and DuPage Counties, Illinois as Owner, and A. J. DelBianco & Associates, Architects, hereinafter called Owner and Architect, and their Agents, servants, and employees, individually and collectively, against all loss, damage, or expense which the Owner and/or Architect may sustain, incur, or become liable for on account of injury to or death of person or persons or on account of damage to or destruction of property resulting from execution of work provided for in this contract, or due or arising in any manner from any omission or any act or negligence of the Contractor or any Sub-contractor or their respective employees. (Emphasis added.)
“2. To indemnify and save harmless, the Owner and Architect against liability resulting from injury to or death of Contractor or any sub-contractor or any of their respective employees, due to the condition or state of repair of the premises or other property of the Owner and Architect upon, about, or in connection with which any work incident to the performance of this contract is carried on.”

We fail to see what effect the certificate would have upon the rights between the plaintiff and defendant. The certificate was issued for the benefit of the Board and its architect, but they are not complaining. Since the Board intervened in the suit, but took no appeal from the trial court’s interpretation of the language contained in the certificate, it is bound by the court’s conclusions on this point.

Regardless, the plaintiff relies upon that portion of the certificate which is emphasized in the quoted section above. It argues that this demonstrates a purpose on the part of the defendant to insure against any defective workmanship. If we were to so interpret this portion of the certificate, we would have to conclude that the policy issued by the defendant was one known as a builder’s risk agreement instead of a comprehensive liability policy. We do not so interpret it. Instead we are of the opinion that the certificate, by its plain language, was issued to indemnify and save harmless the Board and its architect from liability arising during the execution of work under the contract, be it on account of damage to or destruction of property or negligence on the part of the defendant, subcontractor or their employees.

The law is clear that when ambiguous provisions of an insurance policy are considered they must be construed to afford the most protection to the insured and strictly against the insurer where two interpretations, equally reasonable, are possible. However, the court is not faced with that problem in this case. The policy in question specifically excludes damage to work completed by or premises alienated by the insured out of which the accident arises. The policy in question, although long, is a Comprehensive General Liability Policy. It does not purport to be a Builder’s Performance Bond but purports to protect plaintiff, the owner and architect from liability for bodily injury or property damage exclusive of property damage to products or work completed by this insured. There is no reason to rewrite the policy and provide coverage where none was ever anticipated or intended by the clear terms of the contract.

The foregoing rules of liberal construction of insurance policies must yield to rules of reasonable construction and will not permit perversion of plain language to create an ambiguity where none, in fact, exists. Miller v. Madison County Mut. Automobile Ins. Co., 46 Ill App2d 413, 418, 197 NE2d 153 (1964). Where the language is clear and unambiguous, it must be taken in its plain, ordinary and popular sense. Dodge v. Allstate Ins. Co., 89 Ill App2d 405, 407, 233 NE2d 100 (1967).

It is next argued that the Board and plaintiff relied upon the language endorsed upon the back of the certificate of insurance and, therefore, coverage should be enforced against defendant because of the provisions of the Consumer Fraud Act, (Ill Rev Stats 1967, e 121%, § 261 et seq.). This is without merit. The certificate is unambiguous and represents only that a policy had been issued. The policy, of course, is the best evidence of the contract of insurance. The language of the certificate is consistent with the coverage afforded by the policy. We find no fraud or misrepresentation. Further, this point is raised for the first time on appeal and the trial court did not have the opportunity of passing on this point.

Finally, it is argued that even if the defendant is not liable under its policy it should still be required to defend the plaintiff because the defendant’s policy states that it will defend “any suit against the insured . . . even if the suit is groundless, false or fraudulent.” This may have been the case (McFayden v. North River Ins. Co., 62 Ill App2d 164, 172, 209 NE2d 833 (1965)) had the plaintiff not sought a declaration of his rights by this action. However, the court has adjudicated the rights of the parties in the case at bar and therefore the clause referred to is not applicable under these circumstances.

. The trial court’s judgment and order denying the post trial motion are affirmed.

Judgment affirmed.

ABRAHAMSON and SEIDENFELD, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Lonzo Stafford, Defendant, and Arnold B. Harris, Appellant.
    Gen. No. 69-55. (Abstract of Decision.)
    Second District.
    January 19, 1970.
    R. Fredric Solomon, of Chicago, for appellant; Jack Hoogasian, State’s Attorney of Lake County, of Waukegan, and Benedict J. Ori, Assistant State’s Attorney, for appellee.
   Opinion by JUSTICE SEIDENFELD, Judge, presiding. Not to be published in full


author: MR. JUSTICE DAVIS

text:
    Arnold Cohn, Plaintiff-Appellant, v. Board of Education of Waukegan Township High School District No. 119, Lake County, Illinois, Defendant-Appellee.
    Gen. No. 68-199.
    Second District.
    January 6, 1970.

      Ligtenberg, Goebel and DeJong, of Chicago, and William H. Greene, of Waukegan, for appellant.
    Diver, Ridge, Brydges & Bollman, of Waukegan, for appellee.
   MR. JUSTICE DAVIS

delivered the opinion of the court.

Arnold Cohn, plaintiff, by this action, seeks to obtain a declaratory judgment that he is entitled to a higher classification on the salary schedule of the Waukegan Township High School District, and to obtain damages for the salary allegedly lost because of his classification.

The plaintiff was continuously employed by the Board of Education of said School District, defendant herein, as a physical education teacher, pursuant to a contract executed in 1961. Prior to his employment by the defendant, he had a total of three years’ prior teaching experience in two elementary school districts. It is undisputed that the defendant’s rules at the time the plaintiff was hired, provided:

‘T.E. In employing teachers for this high school the Board of Education and the superintendent will evaluate the prior service carefully. Full credit may be allowed on the salary schedule for the first ten years of prior teaching experience comparable to that in this high school and for related professional, industrial and military experience. After the teacher has established tenure in this school full credit for all years of prior service up to the maximum provided for by the salary schedule may be allowed.”

The plaintiff was not allowed full credit for his three years’ of elementary school teaching experience at the time he acquired tenure. From time to time thereafter, he sought full credit on the salary schedule, which was denied. He then brought this action. For the reasons hereinafter stated, we find that the court below committed no reversible error in its rulings in the trial of this case.

Prior to trial, the plaintiff filed a motion to compel the Board of Education to make available to him for inspection, the employment records of thirty-two teachers, as well as such other records as would indicate the rate of pay the teachers received. The court denied this motion and its ruling in this respect constitutes part of the basis of this appeal. The plaintiff also contends that the trial court erroneously ruled that certain evidence in the form of information regarding other teachers in the system, and the way in which Rule I.E. had been interpreted with reference to them—in regard to such things as college teaching and trade experience—was irrelevant.

We recognize that great latitude is allowed in the scope of discovery in this state. Monier v. Chamberlain, 35 Ill2d 351, 221 NE2d 410 (1966); Hruby v. Chicago Transit Authority, 11 Ill2d 255, 142 NE2d 81 (1957). Supreme Court Rule 214 (Ill Rev Stats 1967, c 110A, par 214), pertaining to discovery, however, confers wide discretion on the trial judge who is in control of such discovery. People ex rel. General Motors Corp. v. Bua, 37 Ill2d 180, 192, 193, 226 NE2d 6 (1967). This rule also provides that documents may be discovered . . whenever the nature, contents, or condition of such documents ... is relevant to the subject matter of the action.”

The plaintiff’s motion to inspect was directed to the production of employment records of thirty-two teachers employed by the defendant, whose records, in the opinion of the plaintiff, had a direct bearing on the case. The plaintiff’s motion neither alleged the reasons why these records might have a direct bearing on this litigation, why they were relevant or material, nor set forth that these teachers had similar backgrounds, had taught physical education, or had received credit for pri- or teaching experience. If such were the facts, they should have been alleged. Under these circumstances, we cannot say that the trial court abused its discretion in denying the motion to produce.

We recognize that the nature and extent of the power vested in the court required a careful exercise of its discretion in order to balance the needs of seeking the truth against the needless harassment of a party litigant. However, in the absence of proper factual allegations by the plaintiff of the relevancy and materiality of the records, we find no abuse of discretion by the court.

The plaintiff also sought to have the employment records of the aforesaid thirty-two teachers produced at the trial by serving a notice to produce records upon the defendant. The notice, which did not designate the person required to appear, as provided by Supreme Court Rule 237 (Ill Rev Stats 1967, c 110A, par 237), was quashed by the trial court, and we think properly so, even aside from all questions of form. The principles of reasoning, by which we sustained the propriety of the trial court’s ruling on the plaintiff’s motion to produce, are equally applicable to the court’s action in quashing the notice to produce, which we hold, under the circumstances, to have been proper.

The plaintiff also contends that the trial court erroneously ruled that many items of evidence were irrelevant when such items were, in fact, relevant, and even conclusively proved parts of his case. The defendant urges that this court has no power to consider this point in that the report of proceedings is improperly before us. There is considerable merit to the defendant’s contention; however, we deem it unnecessary to decide this issue, as a decision of the point on merits will not change the result in this case.

When the legislature has empowered a School Board to perform certain acts, courts will not interfere with the exercise of such powers, or substitute their discretion for that of the School Board, unless its action is palpably arbitrary, unreasonable, or capricious (Richards v. Board of Education of Township High School Dist. No. 201, 21 Ill2d 104, 110, 171 NE2d 37 (I960)); and such action will not be disturbed unless it is against the manifest weight of the evidence (Riley v. School Dist. 124, 75 Ill App2d 35, 41, 221 NE2d 424 (1966)).

We note that the plaintiff, in urging that the trial court made erroneous rulings as to the evidence, relies on People v. Board of Education of Chicago, 86 Ill App2d 298, 230 NE2d 85 (1967). We think that such reliance is misplaced. As we view the case, it held that once the Board of Education has exercised its discretion to interpret its rules liberally so that a teacher is placed in a certain salary bracket, it had no power to later rerate that teacher perspectively on the theory that the original rating was too high. Once having acted, the Board, in the absence of fraud, duress or mistake, has lawfully exhausted its power over that subject matter.

The case at bar does not relate to the question of the power of the Board to change or to rerate a status given by it; rather, this case places in issue the plaintiff’s claim that the Board’s original action was erroneous. Section 24-1 of the School Code (Ill Rev Stats 1967, c 122, par 24r—1) vests in the defendant the power to set the plaintiff’s pay. This section provides that the Board of Education shall appoint teachers and fix the amount of their salary subject to limitations set forth in the Act. It is the purpose of the School Code and the pertinent decisions of the Court, to preclude any discrimination by a School Board against any teacher who has once lawfully been placed in a given salary classification. In this case, no action of the Board of Education has been called to our attention, which would be classed as so arbitrary or unreasonable, as to authorize us to set aside the Board’s determination.

According to the plaintiff’s evidence, the defendant, in 1958, adopted a written salary policy which provided that full credit may be allowed on the salary schedule for the first ten years of prior teaching experience corn-parable to that in the defendant’s school district for interrelated professional, industrial and military experience, and after the teacher has established tenure, the Board may allow full credit for all years of prior service up to the maximum provided for by salary schedule.

After the plaintiff was hired, a written change was made in this policy. It provided that credit would be allowed for elementary experience in a departmentalized school in the subject area in which the teacher would work in the high school. Testimony elicited by the plaintiff was to the effect that elementary experience in a departmentalized school is experience in junior high schools at seventh and eighth grade levels.

Testimony as to treatment of several other teachers was introduced. One of these teachers had received seven years’credit for prior teaching experience; had taught in a combined grade and junior high school and in a junior high school, and his experience fit within the definitions in the defendant’s policy. Another was given credit for prior elementary experience, and the defendant’s witness testified that this had been done through inadvertence, and was a mistake. Evidence was presented that a third teacher did not receive credit for pri- or elementary teaching.

There was a plethora of other testimony, but, in essence, the above circumstances illustrate the gist of the evidence. Nowhere in the record is it indicated that the Board of Education treated the plaintiff in a palpably arbitrary or unreasonable manner. The Board’s action, of which the plaintiff complains, was pursuant to the powers vested in it by the School Code, and absent proof of discriminatory action against him, the judgment of the trial court must be affirmed.

Judgment affirmed.

MORAN, P. J. and ABRAHAMSON, J., concur. tal well-being of respondent (Supreme Court Rule 215(d)(2); Ill Rev Stats 1967, c 3, § 112).


author: MR, JUSTICE DAVIS

text:
    Estate of Max Liebling, Incompetent. Jeanne Gardner,. Plaintiff-Appellee, v. Max Liebling, Defendant-Appellant.
    Gen. No. 69-61.
    Second District.
    January 6, 1970.
    Rehearing denied February 5, 1970.

      Alvin Liebling, of Rockford, for appellant.
    Russell J. Goldman and Roald A. Jacobsen, of Rockford, and William Sulkin, of Chicago, for appellee.
   MR, JUSTICE DAVIS

delivered the opinion of the court.

The petitioner, Jeanne Gardner, filed a petition in June of 1968 praying that her father, Max Liebling, be declared incompetent and incapable of managing his estate and person, and asking that a conservator be appointed. After extended hearings, the trial court granted the petition and ordered the appointment of a conservator.

The respondent, Max Liebling, appealed from the order and alleges that it was contrary to the manifest weight of the evidence; that the trial court erred in calling Dr. Robert Henry, a psychiatrist, under Supreme Court Rule 215 (d) (2), (Ill Rev Stats 1967, c 110A, par 215(d) (2)), and in giving undue weight to his testimony; and that this proceeding was brought in bad faith.

In our opinion, the finding of the trial court was not contrary to the manifest weight of the evidence. Twelve witnesses—including three doctors, four nurses, employees, business associates, a lawyer, and a trust officer— testified at length on the issue of the competency of the respondent.

Dr. John Berry had treated the respondent since 1963, and had seen him on numerous occasions, including weekly visits during the early summer of 1968. He testified that he believed that the respondent had suffered a stroke during the year 1966, and several small strokes since. In April of 1968, during the absence of Dr. Berry from the city, the respondent suffered another stroke— a cerebral thrombosis. Upon his return, Dr. Berry treated the respondent in the hospital and released him to his home on April 20, 1968. The respondent had to be attended by nurses around the clock for approximately a two-month period following the hospitalization. Dr. Berry testified that the respondent was suffering from generalized arteriosclerosis and controlled diabetes.

The overall result of this illness, according to the testimony of Dr. Berry, would be a general slowing down of the respondent, with additional stresses during rather hot and cold weather, at which times he would be apt to be more forgetful. In answer to the question propounded on direct examination, of whether he thought the respondent was competent to manage his business and affairs, the witness answered that he thought the respondent was competent, but he didn’t know much about his business and affairs.

Dr. Berry also testified that the respondent would probably again suffer a cerebral thrombosis; that excitement, worry and aggravation might be factors which could cause such an attack; and that there are certain periods of time when the respondent would be forgetful and that during these periods, which could occur frequently, the respondent would not be competent to manage his estate. At the time of his testimony in June of 1968, the witness was of the opinion that the respondent should have someone to care for him twenty-four hours a day; that he thought the respondent was competent when he examined him, but he added, “. . . I think he has lapses of memory,-but as far as full competency is concerned, I don’t know.” In answer to a question from the court, the witness testified that he didn’t think the respondent was able to handle his business in the same way that any reasonable, prudent man would handle his own business.

Dr, Perry A. Anderson testified at the hearings in both June and September of 1968. He stated that he cared for the respondent while he was Dr. Berry’s patient in the month of April, 1968, from the time the respondent suffered his stroke until the time Dr. Berry returned to Rockford, and from July 1, until the time of his testimony in September, while Dr. Berry was out of the country. He testified that the cerebral thrombosis suffered by the respondent in April was a slight attack, and that the respondent experienced high blood pressure, general arteriosclerosis and diabetes. In June, he testified that it seemed possible that the respondent was capable of handling his business affairs, and he reaffirmed this opinion in his testimony in September.

Three of the four nurses who cared for the respondent around-the-clock at his home during April, May and June of 1968, testified that the respondent was not capable of handling his estate. Among their observations on which they based their opinion were the following: The respondent, shortly after his son, Alvin Liebling, would leave his house, would forget that Alvin had been there; that on occasions when he apparently knew he was in his home, he did not know where various rooms were; and that while riding in a car in an area not far from his home in Rockford, he thought he was in Beloit, Wisconsin. These witnesses testified generally that the respondent was confused and suffered substantial memory difficulties.

A trust officer, who had known the respondent for a number of years and had seen the respondent on two occasions during the months of May and June 1968, testified regarding the respondent’s execution of certain documents on these two occasions, and his observations leading to the conclusion that the respondent was competent. The lawyer, who had prepared one of the documents—a trust agreement—, and was present with the respondent only in June of 1968 when the document was signed by the respondent, was also of the opinion that he was then competent, knew what he was doing, and was capable of managing his estate. However, all information with reference to the terms of the agreement had been furnished to the lawyer by Alvin Liebling, who told the lawyer that his father was suffering from a cardiac physical impairment. Neither the trust officer nor the lawyer had knowledge of the nature and extent of Max Liebling’s illness.

In September, 1968, an accountant, who had worked for the respondent for approximately fifty years, testified as to her observations of the respondent over these years, including the recent months. Following the stroke in April, she had seen the respondent once in June and once in September and she was of the opinion that the respondent was capable of handling his ordinary business affairs. Thus, like the trust officer, she had seen the respondent only twice during this period.

One of the respondent’s nurses testified that she was of the opinion that the respondent was competent. Unlike virtually every other witness—whether they were longtime business associates or nurses who had known the respondent only since April of 1968, all of whom had found the respondent to be a man of few words—she found the respondent a talkative person.

Another witness was a business acquaintance of the respondent who lived in Hinsdale, Illinois. He testified that he consulted with the respondent in regard to the construction of a motel which the respondent had previously undertaken; that he came to Rockford nearly every weekend during the two-year period commencing in July, 1966, and saw the respondent on virtually all of these trips and discussed the project with him; that the respondent took an active part in all of these discussions; and that his memory was good and he was capable of managing his ordinary business and affairs as a prudent man.

At the conclusion of most of the testimony, the trial court ordered that Dr. Robert Henry, a psychiatrist, examine the witness, report, and testify pursuant to Supreme Court Rule 215 (d) (2). Dr. Henry testified as to the various tests given by him to the respondent on the one occasion that he saw him, and as to the conclusions he drew. He stated that the respondent was unable to answer certain types of questions, indicating to the witness that the respondent was suffering from a severe organic brain syndrome; that he was not suffering from any psychosis; and that the condition, as he, the psychiatrist observed it, was progressive and irreversible. It was his opinion that the respondent was not capable of handling his estate.

We note that neither Max Liebling, Leona Liebling, his wife, nor Dorothy Smith, his youngest daughter, testified in this proceeding. All of these parties were represented in the litigation by Alvin Liebling, as one of their attorneys. It is a rule of law that where facts material to the issues are within the knowledge of a party to the cause and the opportunity is afforded such party for the disclosure of such facts but is not availed of, a presumption arises that such evidence, if given, would have been unfavorable to him. Page v. Keeves, 362 Ill 64, 73, 199 NE 131 (1935).

The foregoing is not an exhaustive recitation of the testimony that was before the trial court. It is merely a summary; however, we believe it sufficient to indicate that there was an abundance of evidentiary support for the findings of the triql court. We see no purpose in detailing all of the testimony of the various witnesses. The evidence before the trial court was conflicting, but the court had the opportunity to observe the witnesses and determine their credibility and the weight to be given their testimony. We have reviewed the entire record in detail and are of the opinion that the findings of the trial court are not manifestly against the weight of the evidence. Anderson v. Long Grove Country Club Estates, 111 Ill App2d 127, 139, 249 NE2d 343 (1969); Sudduth v. Board of Fire and Police Com’rs of City of Rockford, 48 Ill App2d 194, 208, 198 NE2d 705 (1964); Rude v. Seibert, 22 Ill App2d 477, 483, 161 NE2d 39 (1959).

With regard to the propriety of the court in calling Dr. Henry to testify under Supreme Court Rule 215 (d) (2): The rule is designed to aid the trial court in making a just determination of a medical issue, when in the opinion of the court a physical or mental examination is necessary. Once the trial has commenced, the court may exercise its discretion to order an impartial examination if it finds there are compelling considerations. Two factors are important in this case. First, this matter was being tried without a jury, and the hearings were held over an extended period of time. The first was held in June and the next in September, during which time the court determined to seek an impartial medical report. The doctor’s testimony was taken on October 4, 1968, at the same time as that of another witness for the respondent who could not be present at the September hearing. This circumstance caused no substantial inconvenience to the litigants; it did not have the effect of delaying a determination until the testimony of the doctor could be taken. The matter had to be continued for the testimony of the additional witness of the respondent. Second, the testimony as to the capability of the respondent to manage his estate was not without conflict. The doctors, who had testified, were somewhat self-contradictory in their testimony. The determination which the trial court was called upon to make was significant: the sole issue related to the physical or mental well-being of the respondent. We believe that the conflicting evidence on the issue before the court was the compelling reason for ordering the additional examination in this case, and that the doctor’s testimony was properly considered by the court.

The respondent further alleges that the petition was brought in bad faith, not to conserve his, the respondent’s estate, but to thwart his wishes as to the manner in which his estate should be managed. Our determination that the finding of the trial court is supported by the evidence is sufficient answer to this allegation. The respondent himself was not aware of these proceedings, and, apparently, is not now aware of them. We do not regard this proceeding as one wherein there was conflict and discord between Max Liebling and any member of his family, rather, the basis for the litigation was the dispute between the members of his family with reference to what was the appropriate manner of managing his estate. While there is a difference of opinion on this matter among the family members, it does not appear that any member has acted in bad faith.

Under the provisions of section 112 of the Probate Act (Ill Rev Stats 1967, c 3, par 112), an incompetent is defined as follows:

“An ‘incompetent’ under this Act includes any person who because of insanity, mental illness, mental retardation, old age, physical incapacity, or imperfection or deterioration of mentality, is incapable of managing his person or estate and any person who, because of gambling, idleness, debauchery or the excessive use of intoxicants or drugs, so spends or wastes his estate as to expose himself or his family to want or suffering.”

This definition is very broad and includes any person, who, because of any of the conditions there set forth, is incapable of managing his person or estate. Under the evidence in this case, and under applicable law, the trial court did not err in its finding that Max Liebling was incompetent.

For the reasons stated herein, the judgment of the trial court is affirmed.

Judgment affirmed.

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


author: RYAN, J.

text:
    Christy Suing, Plaintiff-Appellant, v. Robert D. Catton, Defendant-Appellee.
    Gen. No. 69-36.
    Third District.
    January 8, 1970.

      Frederick W. Allen, of Peoria, for appellant.
    Cassidy, Cassidy, Quinn & Lindholm, of Peoria, for appellee.
   RYAN, J.

Plaintiff was injured while riding as a passenger in an automobile owned and operated by another. The automobile was struck by the defendant’s car. The accident occurred on September 14, 1965. Plaintiff filed her Complaint for personal injuries on March 11, 1968, and demanded a jury trial. Defendant filed a motion to dismiss based upon the two-year statute of limitations. (Ill Rev Stats 1965, c 83, § 15.) Plaintiff filed an answer to the motion to dismiss and alleged therein that the defendant through his insurance company had waived his right to rely upon the statute of limitations and is estopped to assert the statute of limitations in bar to the plaintiff’s claim. Plaintiff attached an affidavit in support of her answer to the motion to dismiss. No counteraffidavits were filed by the defendant. The trial court granted the motion to dismiss and ordered the cause stricken. This appeal followed.

The motion to dismiss was one properly filed under section 48, par 1 (e) of the Civil Practice Act, which provides as a ground for such a motion “that the action was not commenced within the time limited by law.” Ill Rev Stats 1965, c 110, § 48, par 1 (e). Paragraph 3 of the same section of the Civil Practice Act provides that the opposite party may present affidavits or other proof denying the facts alleged or establishing facts obviating the grounds or defect. This paragraph then provides that if a material and disputed question of fact is raised the court may decide the motion upon the affidavits and evidence, but, the court shall deny the motion if it is an action of law and a jury demand has been filed by the opposite party in apt time.

The determining question in this appeal is whether there was a material question of fact raised by the affidavit filed by the plaintiff in opposition to defendant’s motion to dismiss. We feel that a question of fact was raised by the plaintiff’s affidavit and that the trial court erroneously granted defendant’s motion to dismiss.

The answer of the plaintiff to the defendant’s motion alleged that the defendant through his insurance company has waived his right to rely upon the statute of limitations and is estopped to assert the statute of limitations in bar of the plaintiff’s claim. Since defendant did not file a counteraffidavit, we must look to plaintiff’s affidavit to determine whether a question of fact concerning waiver or estoppel has been raised. Devlin v. Wantroba, 72 Ill App2d 383, 218 NE2d 496. In the absence of a counteraffidavit, the facts set forth in plaintiff’s affidavit must be taken as true. G. Chicoine v. John Marshall Bldg. Corp., 77 Ill App2d 437, 222 NE2d 712. We do not perceive, however, that the principal thus just stated requires that the trial court consider as admitted allegations of pure conclusions and we shall not so consider the same on this appeal. Tau Delta Phi v. Gutierrez, 89 Ill App2d 25, 232 NE2d 205. We shall omit from the recitation of facts contained in the affidavit as hereinafter set forth the conclusion contained therein and objected to by the appellee on this appeal. Said conclusion being to the effect that the representative of the insurance company seemed to concede that the accident was his company’s driver’s fault and led the affiant to believe he would make a settlement with her.

Plaintiff’s affidavit alleged that on September 14, 1965, while on a trip with her husband, the car in which she was riding was struck in the rear in Tazewell County, Illinois. When she returned to her home in Maryland she contacted an orthopedic surgeon. On November 13, 1965, Mr. Eklund from Aetna Life and Casualty Company stopped at her apartment while both she and her husband were at work, and left his card. She phoned Mr. Eklund the next day and gave him the name and address of the owner of the car in which she had been riding. She also told him of her injury, the complications such as the cervical collar she was wearing, the loss of work and expenses to date. Mr. Eklund continued to call her every two weeks for information concerning her visits to the doctor. In November, 1965, he sent her some forms regarding the accident. She attached certain information sheets concerning the accident to the forms and returned them to Mr. Eklund. Every time she talked with him he said he would keep in contact with her concerning her injuries and possible release from the doctor.

Early in 1966, Mr. Eklund issued a check to the owner of the car for repairs. The owner informed the plaintiff that the check was $50 less than the cost of repairs. She, in turn, called Mr. Eklund concerning the shortage. He told her to have the owner return the check to him. It was a mistake that they had not included the $50. The check was returned to Mr. Eklund. She never heard from Mr. Eklund again. In 1966, upon learning that the owner of the automobile had not received the corrected check, she again contacted Aetna and learned that a Mr. Cassidy would handle her case. He told her the owner would receive a corrected check. A few weeks later the owner did receive another check for car repairs, but again it was $50 less than the cost of repairs. Mr. Cassidy said when they settled for everything, the $50 would be paid then.

When Mr. Cassidy took over the case it was agreed that instead of having him call her periodically to see if she was released from the doctor, she would call him each time she saw the doctor. This, she did and reported what the doctor had said each time. During the spring and summer of 1967, plaintiff made several unsuccessful attempts to contact Cassidy, but did contact him late in August or early in September, 1967, and told him her condition was the same. He said he would keep in touch and asked her if the doctor had released her yet. She replied that he had not.

Nothing was heard from Cassidy for awhile. Finally plaintiff’s husband contacted him on December 12, 1967, and told him that plaintiff wanted to talk about her condition. On December 15, 1967, Cassidy called plaintiff and she told him of her condition and of the possible need of an operation. He said he was sending some medical forms to her doctor that day. Plaintiff called the doctor several times and learned that the forms had not been received. On December 19, 1967, she again called Cassidy. He said he would call her again at her home on that evening to talk to her concerning settlement. Mr. Cassidy did not call plaintiff as indicated. Several attempts were made by plaintiff and others of her family to again contact Mr. Cassidy. He was not in his office on those occasions and did not return the calls. Finally on February 13, 1968, Cassidy called plaintiff and informed her that the statute of limitations had run in September, 1967.

Both plaintiff and defendant have cited Dickirson v. Pacific Mut. Life Ins. Co., 319 Ill 811, 150 NE 256, which holds that the question of waiver is a question of fact when there is sufficient evidence of such fact to go to the jury. The court also held in that case that the rule pertaining to waiver “in a case of this kind” requires that the conduct of the party against whom such a waiver is claimed is such as to cause the other party to change his position by lulling him into a false sense of security, thereby causing him to delay or waive the assertion of his right to damage. The court also held that the investigation of a claim and negotiations for a settlement do not amount to waiver by estoppel unless there is contained in such conduct that which is calculated to lull the claimant into a false sense of security. The court held in that case that there was no evidence of waiver.

Aside from stating general rules, the Dickirson case is of little assistance in deciding the case at bar. In Dickirson the last correspondence between the plaintiff’s attorney and the defendant was nearly nine months before the expiration of the limitation period. The court found nothing in the correspondence which could lull the plaintiff into believing that his claim would be paid. Where the inducement for delay has ceased to operate before the expiration of the limitation period and the plaintiff has a reasonable time remaining within which to institute his suit, he cannot raise estoppel as an excuse for not filing his action within the time specified by the statute of limitations. Reat v. Illinois Cent. R. Co., 47 Ill App2d 267, 197 NE2d 860; 53 CJS, Limitations of Action, § 25. Under the facts in the Dickirson case, the court properly found that there was no question of fact concerning waiver by estoppel.

The defendant contends that the case of Devlin v. Wantroba, 72 Ill App2d 383, 218 NE2d 496, is similar to our case. We do not agree. The court in the Devlin case stated that the affidavits filed by the plaintiffs established only that the investigator had investigated the accident and commenced settlement negotiations. Liability was never conceded. Although the adjuster had urged plaintiffs not to employ an attorney, they did, in fact, employ one more than 16 months before the period of limitations had expired. No offers were ever made or rejected. The delay resulted primarily from the unavailability of the doctor’s reports. There were no negotiations nor discussions of the case after the expiration of the limitation period.

By contrast to the factual situations which existed in the Dickirson case and in the Devlin case, in the case at bar the communications between the plaintiff and the representative of the defendant’s insurance company commenced shortly after the accident and continued intermittently until five months after the statute of limita-, tians had expired. At no time during this entire period was there any indication by the defendant’s insurance company that it denied responsibility for the accident. Many of the contacts between the plaintiff and Aetna were concerned with furnishing information to Aetna relative to plaintiff’s physical condition, and by themselves were not of such a nature as would lull the plaintiff into a belief that her claim would be paid, thereby causing her to delay filing her action. However, we must consider the constant concern which Aetna had concerning plaintiff’s physical condition with the fact that a payment was made for the damage to the automobile. Also to be considered is the fact that when Aetna’s attention was called to the $50 deficiency in the check made in settlement for the damage to the automobile, the representation was made by Aetna that this was a mistake and that the balance would be paid “when we settle for everything.” The plaintiff was in contact with Aetna just a short time before the statute of limitations expired and furnished the usual report as to her physical condition, and at that time Aetna’s representative had asked if the doctor had released her. When informed that he had not, Aetna’s representative stated that he would keep in touch. At that time there was no indication made by Aetna that it would not consummate a settlement of the plaintiff’s claim or that it denied liability for her injuries. In fact, on December 15 and again on December 19 the plaintiff was in contact with Aetna and her physical condition was discussed. On the latter date some three months after the statute of limitations had expired, Aetna’s representative told the plaintiff that he was going to call her at home to talk to her concerning settlement. We consider the factual situation just outlined to constitute more than mere investigation and negotiation which was held not to be evidence of waiver by estoppel in the Dickirson case and in the Devlin case. We consider the factual situation in the case at bar to contain evidence which the jury has a right to consider in determining whether there has, in fact, been a waiver by estoppel. In neither the Dickirson case nor the Devlin case was there any evidence from which a jury could determine that the defendant’s insurance company had admitted liability. In our case we consider the facts as set out in the affidavit concerning the settlement for the damage to the automobile and the statement that the balance due on such settlement would be paid “when we settle everything” is evidence from which a jury might determine that Aetna had, in fact, admitted responsibility and would make a settlement to the plaintiff for her injuries. Under these circumstances we think that the jury should determine whether or not a waiver by estoppel has been established which will prevent the defendant from raising the defense of the statute of limitations in this case. Kinsey v. Thompson, 44 Ill App2d 304, 194 NE2d 565.

Reversed and remanded.

STOUDER, P. J. and ALLOY, J., concur.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Floyd C. Brennecke, Defendant-Appellant.
    Gen. No. 69-58. (Abstract of Decision.)
    Second District.
    January 19, 1970.
    Michael Caldwell, of Woodstock, and Arthur B. Carlson, of Harvard, for appellant; William J. Cowlin, State’s Attorney of McHenry County, of Woodstock, and Thomas F. Baker, Assistant State’s Attorney, for appellee.
   Opinion by JUSTICE SEIDENFELD. Not to be published in full.


author: ALLOY, J.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. William F. Schmidt, Defendant-Appellant.
    Gen. No. 69-85.
    Third District.
    January 12, 1970.

      Reno, O’Byrne & Kepley, of Champaign, for appellant.
    Ronald E. Boyer, State’s Attorney, of Watseka, for appellee.
   ALLOY, J.

This is an appeal from a judgment of the Circuit Court of Iroquois County entered on a verdict of a jury finding defendant guilty of operating his automobile at an excessive rate of speed in violation of chapter 95½ of Ill Rev Stats, 1967 (§ 146 of the UART).

The record discloses that on November 10, 1968, a speeding citation was issued to defendant charging him with operating his motor vehicle at a rate of 80 miles per hour in violation of an alleged posted speed limit of 65 miles per hour on Interstate Route 57 two miles north of Clifton, Illinois.

The record discloses that the State offered as witnesses two State Police Officers. The first was Edward Milligan who testified that he was on duty at the time operating a so-called “catch car” in conjunction with a radar unit being operated by another State Trooper, Maurice Lanton. He testified that Trooper Lanton called out the description of a vehicle at a reported speed of 80 miles per hour. Milligan stopped the car and issued the arrest ticket. He described the type of highway on the ticket as a two-lane rather than a four-lane highway as it actually was. Trooper Milligan observed the defendant’s car less than half a mile from the time he was stopped and stated that the car was under control and he could not testify as to the speed of the car but relied solely on the report from trooper Lanton.

Trooper Lanton testified that he was operating the radar unit at the time and that the radar graph records vehicle time and speed. He stated that a tuning fork and a squad car were used to test the accuracy of the radar unit prior to its operation. He further testified that he radioed ahead to Trooper Milligan to stop a 1966 Continental automobile. He also stated that while the traffic was moderate he does not recall whether there were any other automobiles around or near defendant’s automobile at that time nor does he remember in which lane the vehicle was traveling. He admitted, specifically, on cross-examination, that if two cars are traveling parallel in the same direction, it is difficult to determine which one of the cars is speeding. He stated that the radar unit is supposed to pick up the fastest vehicle. He admitted that he could not testify beyond a reasonable doubt that he could make an identification of the speeding vehicle, under such circumstances. He also admitted that he might have been doing some other things than watching the automobiles at the time.

Following such testimony, the State’s Attorney rested but stated in the presence of the jury that in accordance with a certain case he was asking the court to take judicial notice of the accuracy of this method of determining automobile speed. The trial court then replied in the presence of the jury:

“All right. In accordance with the case of People v. Abdallah, which I believe is 82 Ap2d, either 312 or 319, the Court will take judicial notice of the fact that radar detection devices, when used to determine speed, are accurate or are reliable . . . All I’m trying to say with my judicial notice—I wish it to be limited. I’m sure Mr. Boyer and Mr. Reno will agree with that—is that the method was used here is one that has proved to be reliable. If you analyze those words I think you’ll see they say quite a bit. I say no more.”

The court made a further reference to the radar method being used as being reliable. Defendant objected to the court’s statement but said “in light of the fact that if the Court would be so kind to qualify this applies to radar units in general.” In proceeding with such explanation, the court stated: “The actual method or the devices used are reliable.”

Defendant testified that the speed limit on Route 57 was, generally, 70 miles per hour, but did not admit that he was speeding in the zone referred to. Defendant’s wife was a passenger in the car. She also stated that her husband had been driving more or less about 70 miles per hour south of the location, but did not specifically state what his speed was at the time under consideration.

On appeal in this Court defendant states that the trial court committed prejudicial and reversible error by telling the jury about People v. Abdallah, 82 Ill App2d 312, 226 NE2d 408, and in reading its citation and stating the holding of the case. It is defendant’s contention that defendant’s trial by jury was thereby jeopardized. Defendant also contends that the State did not prove the speeding charge beyond a reasonable doubt on the basis of the record.

The significant issue before this Court is whether the action of the trial court in stating the citation by name and discussing it in the presence of the jury was reversible error. In this connection it is notable that a basic issue which was raised in the minds of the jurors was whether Trooper Lanton was correct in observing defendant’s car as the car which presumably violated the speed limit so far as shown by the radar unit and also whether the radar unit was functioning properly in view of the testimony that the tuning fork may have been dropped at some time.

We have frequently stated that in a criminal case, regardless of its nature, a trial judge should exercise great care to avoid comments likely to lead a jury to infer that its opinion is in favor of or against the defendant (People v. Coli, 2 Ill2d 186, 189, 117 NE2d 777). As stated in People v. Smith, 63 Ill App2d 369, 211 NE2d 456, at 376:

“We recognize that jurors are ever watchful of the attitude of the trial judge; that they may discern any disbelief or hostility on his part; and that such conduct on the part of the trial judge is apt to influence the jurors in arriving at their verdict. To the end that each person accused of a crime may receive a fair and impartial trial by a jury, the trial judge in a criminal case should refrain from conveying to the jurors, by word or deed, his opinions on ultimate factual matters, the credibility of witnesses and the weight to be given to their testimony.”

We have also consistently affirmed actions of trial courts in refusing to allow defense counsel to read to the jury from opinions of the Illinois courts of review (People v. Delordo, 350 Ill 148, 161-2, 182 NE 726). In the cause before us, it is obvious that the jury could have concluded, from the reference to the case and the statement of the court, that the question of defendant’s speed at the time and place under consideration had been determined unquestionably by the mechanical device— that is, the radar unit. It is contended by the prosecution that such error was waived by the defendant in this cause for the reason that specific objection to the conduct of the trial court was not made. Under all circumstances existing in this cause, considering the method by which this particular commentary was brought before the jury, we believe that the principles announced in the case of People v. Sprinkle, 27 Ill2d 398, 189 NE2d 295, apply. In that case the court stated (at page 400):

“The making of an objection to questions or comments by a judge poses a practical problem for the trial lawyer. It can prove embarrassing to the lawyer, but, more importantly, assuming that most juries view most judges with some degree of respect, and accord to them knowledge of law somewhat superior to that of the attorneys practicing before the judge, the lawyer who objects to a comment or question by the judge may find himself viewed with considerable suspicion and skepticism by the very group whom he is trying to convert to his client’s view of the facts, thereby perhaps irreparably damaging his client’s interests.

And, as stated in People v. Finn, 17 Ill2d 614, 162 NE 2d 354, at 617:

“It is axiomatic that ultimate decisions of fact must fairly be left to the jury, and to this end it is universally held that judges should refrain from conveying to jurors their personal opinions concerning any disputed question of fact.”

We believe that in the cause before us, in view of the fact that there was no actual challenge of the radar technology, the statement of the court relating to the method by which the court would take judicial notice of the reliability of the radar unit could have created the impression upon the jury that the findings of such unit were not a matter which could be challenged. In so doing, the trial judge deprived defendant of a free determination by the jury of the very fact under consideration—whether defendant was violating the speed limit at the time and place under consideration. In view of our determination of this issue, it is unnecessary for us to consider other questions raised by appellant.

We also feel that the error involved to which we have referred wás so fundamental, that the record in this cause, however weak in other respects as to defendant, does not justify affirmance and that this cause should be reversed and remanded for a new trial. This cause is accordingly reversed and remanded to the Circuit Court of Iroquois County.

Reversed and remanded.

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


text:
    Niles Construction Co., a Corporation, Plaintiff-Appellee, v. La Salle National Bank, as Trustee Under Trust #30680, et al., Defendants, Lars S. Gosell and and Dorothy Gosell, Defendants-Appellants.
    Gen. No. 53,116. (Abstract of Decision.)
    First District.
    December 5, 1969.
    Gatenbey, Spuller, Law & Johnson, of Chicago (Fred H. Law, Jr. and Philip J. R. Equi, of counsel), for appellants; John Demling, of Chicago, for appellee.
   Opinion by JUSTICE SMITH. Not to be published in full.


author: SMITH, J.

text:
    Frontier Investment Corporation, an Illinois Corporation, Plaintiff-Appellant, v. Belleville National Savings Bank, a Banking Corporation, Authorized To Do Business in the State of Illinois, Fusz-Schmelzle and Company, a Foreign Corporation Authorized To Do Business in the State of Illinois; Sidney Katz, Frontier Life Insurance Company, an Illinois Corporation (Now Apollo National Life Insurance Company), Joseph C. Hauser, Defendants-Appellees.
    Gen. No. 68-113.
    Fifth District.
    December 15, 1969.

      Louis G. Davidson, of Chicago, and Meyer & Meyer, of Belleville (Sidney Robin, of counsel), for appellant.
    Roberts, Gundlach & Lee, of East St. Louis (Norman J. Gundlach, David H. Bremer, of counsel), Johnson, Ducey & Feder, Sam S. Pessin, of Belleville, Lewis, Rice, Tucker, Allen & Chubb, of St. Louis, Missouri, and Pope & Driemeyer, of East St. Louis, for appellee.
   SMITH, J.

The trial court granted a summary judgment in favor of all defendants in the plaintiff’s suit for damages arising out of the sale of sixty-three percent of the corporate stock of Frontier Life Insurance Company, which stock was owned by the plaintiff and had been pledged to the defendant bank as security for a loan in the sum of $44,500. Frontier Life Insurance Company (now Apollo National Life Insurance Company) was dismissed out of the suit by stipulation of the parties and is not a party to this appeal.

The note involved was dated June 1, 1966. On June 30, apparently as a result of indictments returned by the St. Clair County Grand Jury charging violation of the Illinois Insurance Code concerning misuse of corporate funds by certain directors, the defendant bank felt insecure concerning the collateral on the above-mentioned loan and ordered the loan called. On that daté, the president of the bank, defendant Joseph C. Hauser, delivered the following notice to plaintiff Frontier Investment Corporation:

“Gentlemen:
“It is with deep regrets, due to circumstances, that I have been instructed to demand payment of your loan of $44,500.00 dated June 1, 1966.
“It is the judgment of our Bank, due to circumstances, that the securities pledged have materially depreciated in value. We expect payment of the principal and interest on or before July 5,1966.
“Principal $44,500.00
“Interest to 7/5/66 259.58
$44,759.58
“After the 5th of July, the securities will be sold as per the Pledge of Collateral Agreement signed by your Company on June 1,1966.”

On the date of this letter, the defendant bank in response to inquiries as to the market price of the life insurance company stock had received statements from three different brokers stating that as of that date there was no market for the stock. The record further discloses that during the day of July 5, the plaintiff through its officers made various abortive efforts to make payment of the obligation due to the defendant bank without success.

After the close of banking hours on July 5, the bank’s executive committee met to discuss the failure to receive payment of the loan. At 3:00 p. m. the bank’s president received a call from the defendant broker advising of a firm bid of $.35 a share for the stock. This was refused because it did not satisfy the total loan and interest. Immediately thereafter, the same broker advised that it had a bid of $.39 a share, good until 3:30 p. m. on July 5, 1966. The sale at this price was confirmed and the certificates delivered to the broker. Thereafter the broker advised that the defendant Sidney Katz was the purchaser of the stock.

It appears that defendants John Robbins, Earl Butterfield, Charles Gibson, and Sam Miller were directors of both Frontier Investment Corporation and Frontier Life Insurance Company. It also appears that John Robbins was vice president of Frontier Investment Corporation and president of Frontier Life Insurance Company. At 11:45 p. m. on July 5, the plaintiff deposited a bank draft in the night depository box of the defendant bank, together with a letter demanding the return of the pledged collateral insurance stock. On July 8, Frontier Investment Corporation filed a complaint seeking only injunctive relief to restrain the bank, the broker, Katz, and the life insurance company from completing the sale of the stock to the defendant Katz. This temporary injunction was denied following a hearing on July 11, and leave granted to the plaintiff to file additional pleadings. On the same day, Katz filed a suit for the appointment of a receiver for the life insurance company charging the directors with mismanagement, asked for the termination of the directorships of Robbins, Butterfield, Gibson, and Miller, the election of new directors and the issuance of the stock to himself. The four named individuals, individually and as members of the board of directors of the insurance company, joined issues in this suit, moved to vacate the appointment of the receiver and objected to every act of the receiver. The motion to vacate was denied. A special shareholders’ meeting was held on July 28, and defendant Katz and one Ogden, Slayton, and Chase were elected as directors of the insurance company. Upon presentation of the stock to the receiver, duly endorsed, the receiver caused a new certificate for 117,100 shares of the life insurance stock to he issued to Sidney Katz. The work of the receiver having been concluded and over the specific objections of the four named individuals to “approval of an order of this court ordering the transferring of 117,100 shares of stock of the Frontier Life Insurance Company, which is owned and belongs to the Frontier Investment Corporation,” the court found in paragraph (c) of its order that “the actions of the receiver as to the reissuance of said certificate for 117,100 shares to Sidney Katz be and the same are hereby approved.” The receiver was discharged. No appeal was taken from this order.

It is the position of the plaintiff that (1) the court originally had no jurisdiction to appoint a receiver and that any acts of such receiver or orders of the court approving the receiver’s conduct are void, unenforceable, and are not a bar to the instant action, (2) that in any event the receivership proceeding did not decide any issues presented in the present complaint and did not determine the rights or obligations of the parties to the action now before the court and (3) that the orders in the receivership proceeding did not purport to deal with the “disposition” of the collateral by the defendant bank to Katz and hence did not hold that that disposition was commercially reasonable.

The plaintiff contends that the receivership proceeding is a nullity for the reason that § 201 of the Insurance Code, Ill Rev Stats 1967, c 73, § 813, holds in substance that no action interfering with the prosecution of the business of an insurance company may be brought except upon the application of the director of insurance and that the instant suit brought by an alleged stockholder did not confer jurisdiction. In support of this contention, plaintiff cites People v. Niehaus, 356 Ill 104, 190 NE 349; People v. Miner, 387 Ill 393, 56 NE2d 353; Korman v. Matthias, 32 Ill App2d 341, 177 NE2d 720; People v. Peoria Life Ins. Co., 357 Ill 486, 192 NE 420. We cannot agree that the proceeding in the Katz suit and the appointment of the receiver is a nullity or that such proceeding is not a judicial proceeding. In People v. Williams, 392 Ill 224, 238, 64 NE2d 464, 470, the Supreme Court indicated that § 201 was primarily concerned with interfering with, obstructing or terminating the insurance company’s business and stated:

“. . . Conversely, section 201 does not assume to restrain the prosecution of actions based upon contractual rights. . . .”

And again in Winger v. Chicago Bank & Trust Co., 394 Ill 94, 67 NE2d 265, the Supreme Court distinguished between interfering with the conduct of the business and requiring a duty on the part of its officers. In discussing § 201, it stated it does not purport to have anything to do with policyholders or stockholders of a solvent company requiring an accounting or the doing of any act which will not interfere with the business of a solvent and going insurance company. The appointment of the receiver in the Katz case in no sense purports to invoke an area where the director has exclusive jurisdiction. In fact, the four individuals on motion complain that the injunction restrains them from “wasting, from improperly disbursing, from misapplying and concealing any of the assets wherever situated of said Frontier Life Insurance Company.” It is clear that such an injunction order seeks only to enforce a compliance with a fiduciary obligation already imposed by law upon the directors of the insurance company. It does not interfere with the prosecution of the insurance company’s business. If it restrains the prostitution of the insurance business, it is a strange litany for directors of that business to be chanting such a protest in this lawsuit. The appointment of the receiver in this instance was an interlocutory order which was appealable. The individual directors who were partially and in part charged with the responsibility as directors to protect and defend their insurance company did not appeal the order. As directors of the insurance company, they were apparently satisfied to let the order stand. In that same proceeding, they attacked the validity of the transfer of the stock to Katz. They then changed hats and put on their hats as officers and directors of the investment company; the heads are the same, but the hats are different. Appealable under Rule 307 of the Supreme Court Rules, the individual directors did not seek to take an appeal or to question the appointment of the receiver or his actions. Instead, now representing the investment company, they seek to re-litigate the same question and to hold the proceeding in which they had previously engaged was not a judicial proceeding. We cannot agree with the plaintiff that the receivership proceeding was a nullity.

Since the plaintiff was not a party to the receivership proceeding, the investment company takes the position that its rights were not affected and that nothing was there adjudicated which now binds them. This position, in our judgment, overlooks some very cogent factors. The Uniform Commercial Code, Ill Rev Stats 1967, c 26, § 9-507(2), reads in part:

“. . . A disposition which has been approved in any judicial proceeding or by any bona fide creditors’ committee or representative of creditors shall conclusively be deemed to be commercially reasonable, but this sentence does not indicate that any such approval must be obtained in any case nor does it indicate that any disposition not so approved is not commercially reasonable.”

We. agree with the plaintiff that the doctrine of res adjudicata and estoppel by verdict applies only to issues actually litigated where the second action is based upon a different cause of action. In Harding Co. v. Harding, 352 Ill 417, 427, 186 NE 152, 155, the court stated:

“. . . In such cases the inquiry must always be as to the point or question actually litigated and determined in the original action, the burden of proof is on him who invokes the estoppel, and extrinsic and paroi evidence is admissible to prove that the precise question in the second case was raised and determined in the first.”

Section 9-504(3) provides “Sale . . . may be ... at any time and place and on any terms but every aspect of the disposition including the method, manner, time, place and terms must be commercially reasonable.” Was this issue determined either in the application for temporary injunction in this suit or in the receivership which directed the transfer of the stock to the defendant Katz? Not necessarily. Since the plaintiff or those in privity with the plaintiff did not appeal from either of these orders and now stands on a suit for damages, it is clear that under § 9-504(4) the disposition by the secured party transferred to Katz, the purchaser, for value all of the plaintiff’s rights in the stock and establishes that such transfer was made after default and that the purchaser acted in good faith. These two propositions are not subject to further litigation.

Under § 9-507 (1) where, as here, disposition has occurred, the debtor has a right to recover from the secured party any loss occasioned by a failure of the secured party to comply with the provisions of the Act. Section 9-507 (2) provides that if the secured party either sells the collateral in the usual manner in any recognized market therefor or if he sells at the price current at such market at the time of his sale or if he has otherwise sold in conformity with reasonable commercial practices among dealers in the type of property sold, he has sold in a reasonably commercial manner. This same section further provides “disposition which has been approved in any judicial proceeding . . . shall conclusively be deemed to be commercially reasonable. . . .” This quoted portion, however, as stated in the same section “does not indicate that any such approval must be obtained in any case nor does it indicate that any disposition not. so approved is not commercially reasonable.” Thus the approval need not be obtained at all, need not be obtained in advance nor is there anything in the Act that requires the secured party to do so. Such language is simply not there.

We have not been favored with too much of the proceeding in the receivership matter and cannot say with any degree of certainty that that proceeding determined the question of whether or not the disposition was commercially reasonable. However, it is to be noted that the trial court denied the motion to strike the complaint in this case, but allowed the motion for summary judgment. We would also observe that the testimony of witnesses as to the details of this transaction was taken in this case on the hearing for the temporary injunction. That evidence was before the court in this proceeding and is a part of the case. It relates the facts and the circumstances shown by this record. It shows the “method, manner, time, place and terms of the disposition of the stock.” There was no dispute of fact. There was a question of law. Couple this with the fact that the receivership proceeding is a judicial proceeding and that proceeding approved the transfer of the stock to the purchaser. There was no appeal from that order. It is not necessarily a contradiction in itself to hold that the method, manner, time, place and terms of disposition were not in accordance with the statute and thus the defendants are liable for damages and in the same breath hold that the transfer of the stock in a suit brought by the purchaser is proper. The purchaser of the stock is protected by the statute irrespective of whether or not the disposition was commercially reasonable so long as he purchases after default and acts in good faith. However, it is clear from this record that there was no dispute of a material fact. By the approval of the transfer of the stock to Katz and by the entry of the summary judgment, the trial court determined that the disposition of the stock was commercially reasonable as a matter of law. Such conclusion is not contrary to the uncontroverted facts in this record and the judgment must be affirmed. It is so ordered.

Affirmed.

CRAVEN, P. J. and TRAPP, J., concur.


author: MR. JUSTICE SCHWARTZ

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Todd Cazaux, Defendant-Appellant.
    Gen. No. 51,198.
    First District, Third Division.
    December 30, 1969.

      F. Oliver and Gerald M. Werksman, of Chicago, for appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Howard Levine, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE SCHWARTZ

delivered the opinion of the court.

Defendant was indicted on two counts, one for possession and one for sale of an unspecified quantity of marijuana. A jury found him guilty on each charge and he was sentenced to serve concurrent terms in the penitentiary of two to ten years for possession and ten to fifteen years for sale. On appeal he contends: (1) the action of the police officers involved in his apprehension constituted entrapment, (2) the trial court improperly denied his motion for change of venue and (3) the trial court’s instructions failed to charge the jury on the elements of either offense required to be proved to establish his guilt. The facts follow.

Shortly before 4:00 p. m. on April 13, 1965, Mare Shinderman, a police informant, called narcotics detectives of the Chicago Police Department and advised them that he would be able to make a controlled purchase of marijuana. Police detective Anthony Rigoni drove Shinderman from his home to police headquarters at 1121 South State Street, Chicago. There he was searched and supplied with $25 in bills, the serial numbers of which were recorded. The money was then marked with fluorescent powder. Rigoni and two other police detectives, Edward McCann and Guy Neubert, drove Shinderman to defendant’s home at 1701 North Larrabee Street, Chicago, arriving there at about 4:00 p. m. Shinderman entered and told the defendant he wanted to buy $25 worth of marijuana. Defendant accepted the money, saying that he anticipated making a large purchase later in the day and would get some for the informant. He told Shinderman to return about 7:00 p. m. that evening. At approximately 7:00 p. m. Shinderman saw defendant walking on a street near his apartment and accompanied him to his home. Ten minutes later Shinderman emerged from the building and delivered to Officer Rigoni a packet which contained a substance that looked like marijuana. The detectives then went to defendant’s apartment and knocked on the door. The door was opened by defendant who, upon seeing the police, ran through a hallway into the kitchen, where he was apprehended and placed under arrest. In an adjacent bathroom, the door of which was open, Rigoni was able to view a quantity of “crushed green plant” on the lid of the toilet fixture. At the trial it was stipulated that this substance and that in the packet sold to Shinderman was marijuana.

Defendant’s first contention is that the evidence clearly shows entrapment. This defense is established where it appears that the officers of the law or their agents have conceived and planned the criminal activity on which the indictment is based and to that end incited, induced, instigated or lured the accused into committing an offense which he had no intention of committing and would not otherwise have committed. People v. Hall, 25 Ill2d 297, 185 NE2d 143; People v. Wells, 25 Ill2d 146, 182 NE2d 689; People v. McSmith, 23 Ill2d 87, 178 NE2d 641; People v. Outten, 13 Ill2d 21, 147 NE2d 284. In analyzing the facts relative to the issue of entrapment it is essential to distinguish between a trap set for the unwary criminal and a trap set to ensnare the innocent and law-abiding into commission of a crime. Sherman v. United States, 356 US 369 (1958); People v. Jackson, 116 Ill App2d 304, 253 NE2d 527 (1969). A defendant who had the intent may not defend on the ground of entrapment merely because an officer of the law afforded him an opportunity to commit the offense. People v. Wells, supra; People v. Shannon, 15 Ill2d 494, 155 NE2d 578; People v. Clark, 7 Ill2d 163, 130 NE2d 195.

The cases upon which defendant principally relies are People v. Strong, 21 Ill2d 320, 172 NE2d 765; People v. Carmichael, 80 Ill App2d 293, 225 NE2d 458; People v. Jones, 73 Ill App2d 55, 219 NE2d 12; Sherman v. United States, 356 US 369. These are distinguishablé on their facts from the case before us. In Strong, Carmichael and Jones the holdings were expressly based on unrebutted testimony in the record that the narcotics which formed the basis of each prosecution were supplied by informers acting as agents of the State. In Sherman an informant appealed to the defendant to procure the drugs to assuage the suffering of a fellow addict and after persistent requests he overcame the defendant’s initial refusal. In the instant case the informant’s offer was accepted immediately by defendant and there is no evidence that undue or prolonged pressure was exerted.

Defendant’s unhesitating acceptance of the informer’s offer establishes that the criminal intent was present in his mind and needed but the opportunity presented by a simple request to express itself in criminal conduct. People v. Gonzales, 25 Ill2d 235, 184 NE2d 833; People v. McSmith, 23 Ill2d 87, 178 NE2d 641; United States v. Perkins, 190 F2d 49 (7th Cir). A suspect may be tested by being offered an opportunity to violate the law in the customary manner for the activity alleged to be unlawful. People v. Hall, supra. In the instant case the tactics used by the police were necessitated by the secretive nature of those who traffic in prohibited drugs and did not constitute illegal entrapment.

Defendant’s next contention is that his motion for a substitution of judges, filed pursuant to statute (Ill Rev Stats, c 38, § 114 — 5 (1967)) was improperly denied. The record indicates that on May 24, 1965, defendant’s case was assigned to Judge Nathan M. Cohen for trial. Some time after that and prior to June 3, 1965, a conference was had in chambers at the defendant’s request. At that conference defendant’s attorney told the judge that one of the State’s witnesses was the son of a lawyer and he asked whether that would affect the court’s evaluation of the witness’s credibility. He also asked whether the court would grant immunity to a defense witness. The judge replied that his determination of credibility would not be influenced by the fact that the witness’s father was a lawyer and as to granting immunity to a witness, he replied that he did not have that power. On June 3, 1965, defendant filed a motion for substitution of judges due to the alleged prejudice of Judge Cohen. The motion was denied and defendant contends this was error.

The right of a defendant to a change of venue on the ground of prejudice, while absolute in both civil and criminal cases, can be waived if it is not asserted at the earliest practical moment. People v. Lawrence, 29 Ill2d 426, 194 NE2d 337; Roherty v. Green, 57 Ill App2d 362, 206 NE2d 756. The requirement of filing that motion at the earliest practical moment is designed to prevent forum shopping by attorneys who attempt to ascertain on a hearing the attitude of the trial judge on some issues of a case and if the court’s judgment is not in harmony with counsel’s theory, to assert the prejudice of the judge as a ground for the allowance of a change of venue. People v. Chambers, 9 Ill2d 83, 136 NE2d 812. A motion for change of venue comes too late when it is made after a conference in chambers in which counsel seeks to elicit from the judge his attitude with respect to the credibility of a prospective witness.

Finally, defendant contends that the jury was not fully instructed on the elements of the crimes charged in the indictment. Neither party tendered to the court an instruction which advised the jury that in order to return a verdict of guilty on both counts, they must find that defendant knew that what he possessed was marijuana. While the court on its own initiative could have properly instructed the jury on that issue, failure to do so was not under the circumstances reversible error. People v. Ward, 32 Ill2d 253, 204 NE2d 741; People v. Davis, 10 Ill2d 430, 140 NE2d 675; People v. McCurrie, 337 Ill 290, 169 NE 214. It was stipulated that the substance involved was marijuana and the uncontroverted testimony of the defendant’s own witness showed that defendant knew the nature of the substance with which he was dealing and that he had dealt with it in the past. The precise question was before the court in People v. Truelock, 35 Ill2d 189, 220 NE2d 187, and the court there held that when evidence of the defendant’s knowledge of the presence of narcotics is clear and convincing and the jury could, not reasonably have returned a verdict of not guilty, failure to instruct the jury on the requirement of knowledge does not justify reversal. We find no reversible error in the instant case and the judgment must be affirmed.

Judgment affirmed.

DEMPSEY, P. J. and McNAMARA, J., concur.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Hinda Baskin, Defendant-Appellant.
    Gen. No. 53,421.
    First District, Third Division.
    December 30, 1969.

      J. Edward Jones, of Blue Island, for appellant.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane, Assistant State’s Attorney, and Kenneth L. Gillis, Special Assistant State’s Attorney, of counsel), for appellee.
   MR. JUSTICE SCHWARTZ

delivered the opinion of the court.

In a jury trial the defendant was convicted of theft of property valued at $5. She was fined $100 and placed on probation for one year. Defendant contends that the complaint is defective in that it does not contain an averment of ownership of the property allegedly stolen nor the registered corporate name of the complainant, as distinguished from its popular name, and that the proof was insufficient to establish the corporate existence of the complainant. The defendant also contends that various trial errors were committed and that she was not proved guilty beyond a reasonable doubt, but as we have concluded that the judgment must be reversed because the complaint is defective, it will not be necessary to consider these points.

On May 11, 1966, at about 4:45 p. m. defendant was shopping in the Walgreen Drug Store at 3223 Broadway, Chicago. She had been in the store only a short time when she went to the checkout counter, bought a package of cigarettes and began walking to the exit door. John Titus, assistant store manager, confronted her asking whether she had forgotten to pay for some of the merchandise she had taken. She said “No” and he then asked her to step to the rear of the store so they could talk to Dale Kramer, the manager. Titus, who had been watching the defendant from behind a specially constructed mirror, asked her whether she had in her shopping bag two bottles of hair dye which belonged to the store. She denied having possession of the hair dye, but would not let either man examine the contents of the shopping bag. Titus testified that a short time thereafter the defendant took two bottles of hair dye out of the shopping bag and threw them behind some warehouse baskets. No cash register receipts were found, but defendant said the merchandise had been bought earlier in the week and that she had a receipt for it at home. She denied ever taking anything from the store and also that there was any hair dye in her shopping bag.

The statute under which defendant was charged (Ill Rev Stats, c 38, § 16-1 (1967)) provides in part:

“A person commits theft when he knowingly:
“(a) Obtains or exerts unauthorized control over property of the owner
“and
“(1) Intends to deprive the owner permanently of the use or benefit of the property; . . . .”

The complaint charges that the offense of theft was committed in that defendant “[K]nowingly exerted unauthorized control over cosmetics of the value of $5.00, intending to permanently deprive the said Walgreen Drug Co. of the use and benefit of the said property. . . .” Nowhere is it alleged that “Walgreen Drug Co.” was the owner, nor is Walgreen Drug Co. the proper corporate name, which appears to be “Walgreen Company.” In an indictment for theft the ownership of the property allegedly stolen is a necessary averment which must be set forth with accuracy. People v. Berndt, 101 Ill App2d 29, 242 NE2d 273; People v. Hill, 68 Ill App2d 369, 216 NE2d 212. The same certainty of allegation is required in a criminal complaint. People v. Hill, supra; People v. Ring, 275 Ill App 214. There is no averment that the allegedly stolen property was owned by anyone. The allegation that defendant intended to permanently deprive the said Walgreen Drug Co. of the use and benefit of said property cannot be considered tantamount to such an averment.

Section 15-2 of the Criminal Code (Ill Rev Stats, e 38, § 15-2 (1967)) provides that in any offense directed against property, “owner” means a person, other than the offender, who has possession of or any other interest in the property involved and without whose consent the offender has no authority to exert control over the property. Although the language of the complaint seems to imply that the complainant was the owner of the property in question, nothing short of a specific allegation to that effect is sufficient. The purpose served by alleging the name of the person or property injured is to enable the accused to plead either a former acquittal or conviction under the indictment (or complaint) should he be prosecuted again for the same offense. Since the requirement is founded on the protection of the right of the accused against double jeopardy, it is a substantial requirement and not a mere technical rule. People v. Tassone, 41 Ill2d 7, 241 NE2d 419; People v. Walker, 7 Ill2d 158, 130 NE2d 182. Accordingly the judgment of conviction is reversed.

Judgment reversed.

DEMPSEY, P. J. and McNAMARA, J., concur.