author: MR. JUSTICE ABRAHAHSON

text:
    Marilyn Deener Shores, Plaintiff-Deceased, v. Raymond E. Shores, Defendant-Appellant, and Edward Deener, Plaintiff-Appellee.
    Gen. No. 69-134.
    Second District.
    January 19, 1970.
    Rehearing denied February 25, 1970.

      Canfield, Canfield, Franks, Wylde and Hoad, of Rockford, for appellant.
    Richard J. Caldwell and John B. Roe, of Oregon, for appellee.
   MR. JUSTICE ABRAHAHSON

delivered the opinion of the court.

Plaintiff and defendant were divorced in 1965 and the decree granted the care, custody, control and education of the minor children, Linda, Cindy, Carla and Janet, to the plaintiff and the defendant was ordered to pay-child support. Defendant, Raymond E. Shores, appeals from an order of the Circuit Court of Ogle County granting custody of his two minor children to their uncle, Edward Deener, and ordering Shores to pay child support to Deener. He filed his petition on May 21, 1969, to modify the decree of divorce, after the plaintiff and a minor daughter, Carla, were killed in an automobile accident, alleging substantial changes in circumstances to justify modification; that it would be in the best interests of the minor children, Cindy and Janet, that he be awarded custody and granted leave to take them to his Florida domicile; and, that his obligation to pay support under the decree cease. A married minor child, Linda Guzzardo, filed a petition for custody of the children on the same day. On June 4, Edward Deener, also filed a separate petition for custody of the children, and the petitions were consolidated for hearing. The court granted custody to the uncle, Edward Deener, who is married.

Court records indicate that no support payments were made from March 25, 1965, to October 17, 1968. The plaintiff was forced to file a reciprocal nonsupport action. The defendant admitted he was behind in child support payments, but had no idea how much. He did not see Janet for 4% years. For a year and a half during that period, Linda and Cindy resided with the defendant and his present wife and her three children in Florida. Testimony of the children at the hearing indicated that they were not happy in Florida; that they felt they had been imposed upon while living there and Cindy considered herself primarily a maid and babysitter; that Linda was given liquor to drink by her father and became involved with the Juvenile Court because of drinking, but had no problems of that nature while residing with her mother; that Cindy had problems in school; that they felt their father was “mean” and did a considerable amount of drinking; and, that they preferred to live with their sister or uncle.

Appellant contends that there was no preponderance or adequate evidence to establish that he was "not a fit person to have custody of his children or to grant custody of his minor children to a third party; that a child’s preference as to custody standing alone cannot be determinative; further, that leave of court to Edward Deener to intervene-in this cause was never granted.

The parties agree that - the law of Illinois is that the custody of minor children generally should not be changed from a parent to a third párty in the absence of a finding that both parents are unfit and that the law favors the natural parents as the custodians of the children. Here the court entered an order reciting the pertinent facts and concluded that Raymond Shores was not a fit person to have custody of the minor children, Cindy and Janet Shores; that the married daughter, Linda, being not yet 18 years of age, was still a “bit” too young to undertake the custody of the two minors, one of whom was only two years her junior; and that Edward Deener be given the custody of the two minor children, Cindy and Janet Shores. Thus, we have a specific finding by the trial judge that Raymond Shores was not a fit person to have the custody of the two minor children. After a review of all the testimony in the record, we must conclude that there was a preponderance and adequate evidence to establish that Raymond Shores was not a fit person to have custody.

Of paramount importance to the judge is the welfare of the children during their minority, and we cannot reverse the trial judge’s findings unless they are against the manifest weight of the evidence. Carlson v. Carlson, 80 Ill App2d 251, 255, 225 NE2d 130. Although the trial judge is given a large discretion in awarding custody of minor children, such discretion is a judicial one and is not unlimited and is subject to review. Nye v. Nye, 411 Ill 408, 416, 105 NE2d 300. The trial judge did not abuse his discretion in awarding the custody of the minor children to their uncle, Edward Deener.

We must agree with Raymond Shores’ contention that a child’s preference, standing alone, is not sufficient to modify or change a custody award. However, considering all of the testimony and the findings made by the trial judge in his order granting custody to Edward Deener, it is apparent that he did not determine custody solely on the children’s preference, although the children’s preference is recited in the order.

Finally, it is stated that leave of court to intervene in this cause was never granted to Edward Deener. It does appear, however, that the judge consolidated the separate petitions for hearing and, therefore, all petitions were properly before the court. For the reasons stated above, the decree of the Circuit Court of Ogle County is affirmed.

Judgment affirmed.

DAVIS, P. J. and SEIDENFELD, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    Theodore Hamm Brewing Co., a Corporation, Plaintiff-Appellee, v. First Trust & Savings Bank of Kankakee, a Corporation, and Harold E. Lape, Individually and d/b/a Key City Beverage Company, Defendants-Appellees and Appellant.
    Gen. No. 69-63. (Abstract of Decision.)
    Third District.
    January 20, 1970.
    Edward G. Vogt, of Kankakee, for appellant; Edward A. Melntire, of Kankakee, for appellee.
   Opinion by JUSTICE ALLOY. Not to be published in full.


author: STOUDER, P. J.

text:
    Edwin Hasselbacher, Plaintiff-Appellant, v. Bonnie Mendell, Formerly Known as Bonnie Bassett, Defendant-Appellee.
    Gen. No. 69-21.
    Third District.
    January 21, 1970.
    Rehearing denied February 19, 1970.

      Swain, Johnson & Gard, of Peoria, for appellant.
    Heyl, Royster, Voelker & Allen, of Peoria, for appellee.
   STOUDER, P. J.

Edwin Hasselbacher, Plaintiff-Appellant, commenced this action in the Circuit Court of Peoria County seeking damages for the negligence of Bonnie Mendell, formerly Bonnie Bassett, Defendant-Appellee. The jury’s verdict for $5,000 was in favor of plaintiff. Defendant’s post-trial motion for judgment notwithstanding the verdict was granted and judgment was entered in favor of defendant resulting in this appeal by plaintiff.

The issue raised in this appeal is whether or not the court properly applied the rule relating to the direction of verdicts or the granting of motions notwithstanding the verdict.

At about 8:15 a. m. on the morning of July 28, 1965, plaintiff, driving a half-ton pickup truck, was headed east on Ill. Rt. 150. Near Kickapoo, Illinois, plaintiff approached a slower moving farm truck. Plaintiff decreased his speed, followed the farm truck for a time and after traffic in the opposite direction had cleared, he started to pass the farm truck. As he did so his truck was struck by defendant’s car which had started to pass plaintiff’s truck. Plaintiff’s pickup truck was struck near the left rear corner.

Plaintiff contends there is ample evidence to support the verdict of the jury and consequently the trial court’s conclusion to the contrary is erroneous.

Both parties have cited and quoted from Pedrick v. Peoria & Eastern R. Co., 37 Ill2d 494, 229 NE2d 504, which sets forth the applicable rule. The rule which has been designated the Pedrick Rule is so familiar as not to require restatement in this opinion. It should be observed that the rule is applicable both to motions for directed verdict and motions for judgment notwithstanding the verdict and consequently the consideration of the rule is independent of the verdict itself.

Numerous cases have been cited by plaintiff in support of his contention that if the evidence is substantially in conflict or if the reasonable inferences which may be drawn from the evidence are substantially conflicting, the issues are properly resolved by the jury. See Hanson v. Darby, 100 Ill App2d 339, 241 NE2d 110, and Luker v. Contract Steel Carriers, Inc., 103 Ill App2d 296, 243 NE2d 6. Plaintiff then proceeds to detail certain parts of the evidence which he argues presented issues requiring resolution by the jury. Such evidence relates primarily to the alleged negligence of the defendant and if this were the only issue we would be inclined to hold that a jury question was involved.

However, of equal importance to the success of plaintiff’s case is that the plaintiff present evidence of his own due care. See Carter v. Winter, 32 Ill2d 275, 204 NE2d 755 and Tompkins v. Twin Oaks Dairy Inc., 91 Ill App2d 88, 234 NE2d 403. With respect to this essential element of plaintiff’s case, we believe there was no conflict to be resolved by the jury and plaintiff has as a matter of law failed in his proof of this essential element.

The highway where the incident took place is a two-lane highway, there being one lane for eastbound traffic and one lane for westbound traffic. According to plaintiff’s testimony, he first observed the truck in front of him as he rounded a curve approximately one quarter mile from the scene of the impact. Plaintiff testified that at this point, i. e., one quarter mile from the scene, he looked in his rearview mirror and saw no cars behind him. Plaintiff’s pickup truck was equipped with an outside rearview mirror on each side as well as an inside rearview mirror, or a total of three rearview mirrors. Plaintiff did not again look in his rearview mirror and in particular did not look in the mirror prior to crossing over into the passing lane. Indeed, plaintiff testified that he never saw defendant’s car until it had pulled off the road in front of him after the impact. When asked on cross-examination whether he had looked in his mirrors before entering the passing lane his answer was that he more or less had the mirrors in his view all the time. The ambiguity and nonresponsiveness of this answer demonstrated what we consider to be an erroneous concept of plaintiff so far as his own due care is concerned. It seems to be plaintiff’s theory that as long as he was proceeding in a forward direction and did not slow his speed or abruptly stop, his duty of due care was satisfied. To support such theory plaintiff’s claim of due care emphasizes alleged negligence of defendant in “rear-ending” plaintiff’s truck. We do not believe it can be said that a motorist is in the exercise of due care when he proceeds to change lanes for the purpose of passing without making any effort to ascertain whether other vehicles traveling in the same direction are in such lane or will be interfered with. We know of no rule of law which says that the forward car has the right of way to enter a passing lane, and in our opinion, any driver may change lanes only when such change can be accomplished with due regard to the safety of other motor vehicles.

In the absence of evidence of plaintiff’s due care or freedom from contributory negligence we believe the trial court was right in granting the motion for judgment notwithstanding the verdict of the jury.

For the foregoing reasons, the judgment of the Circuit Court of Peoria County is affirmed.

Judgment affirmed.

RYAN and ALLOY, JJ., concur.


author: MR. JUSTICE SEIDENFELD

text:
    Curt Wayne Meiners, a Minor, by Jerry Meiners, His Father and Next Friend, Plaintiff-Appellee, v. May Moyer, Defendant-Appellant.
    Gen. No. 69-89.
    Second District.
    January 22, 1970.

      Knight & Knight, of Rockford, for appellant.
    Robert J. Shaw, of Rockford, for appellee.
   MR. JUSTICE SEIDENFELD

delivered the opinion of the court.

Curt Wayne Meiners, a minor, when age 18 months and while in the custody of a baby-sitter, was injured when he fell from the inside front stairs of a two-family apartment house owned by the defendant, May Moyer. Defendant appeals from a judgment entered on a jury verdict awarding plaintiff $3,500 damages and an additional $3,500 in punitive damages.

Defendant claims error in denying her motions for a directed verdict during trial and her post-trial motions.

The errors relied upon include claims that the evidence is insufficient, the form of verdict is improper and not supported by the pleadings or the evidence, the instructions are improper, and the judgment is excessive.

On August 16th, 1967, Jerry and Dorothy Meiners, the parents of Curt, resided across the street from the place of the accident. Virginia Henson, the daughter of a Mrs.

Smith, who lived in the defendant’s upstairs apartment, was used by the Meiners as a “baby-sitter” approximately three times a month during the nearly six months the Meiners had lived in the neighborhood. On the day of the injury, Curt was taken to the Smith apartment to be cared for by Virginia Henson.

Miss Henson had lived in the Moyer building for approximately three and one-half years with her family. She testified that balusters on the stairway, as shown in a photographic exhibit, had been missing since she moved in. She testified to several conversations between her mother and defendant’s agent in which her mother asked if “he would please fix them.” She had observed storm windows stored in the stairwell at the bottom of the stairway over a period of a year or more. On the day in question, Curt was playing with Virginia Henson’s sister in the living room of the Smith apartment until a few seconds before Virginia heard her young brother, who had also been in the apartment, screaming her name. She ran out and then saw Curt lying at the bottom of the stairs on the broken glass.

Virginia Henson’s sister and brother were too young to relate what happened.

Curt’s father testified that on occasions prior to his arriving after the accident, when he had been in the Moyer apartment house, he had always gone up the back steps. He testified that after his son was taken to the hospital, he noticed that there were no balusters on the front stairway leading from the second floor, and he also testified to the broken storm windows.

There was evidence that the city of Rockford had made inspections of the property which had resulted in a notice to Mrs. Moyer that the property had been condemned on June 13th, 1967, as unfit for human habitation. The notice ordered the premises vacated within thirty days. The agent of the city of Rockford, who delivered the notice, recalled that the balusters were missing. He did not note this in his inspection report, nor did he note that the storm windows were stored in the stairwell.

The treating physician testified to injuries consisting of two lacerations to Curt’s scalp and a laceration of the volar surface of the left, fifth finger; that scars to the child’s forehead would be permanent but would not require plastic surgery; and that as of the date of the trial, March 17th, 1969, the finger did not close completely.

While there was conflicting evidence, we are of the opinion that the evidence favorable to the plaintiff supports a verdict that defendant was guilty of both negligence and willful and wanton misconduct in permitting the stairway to remain in a dangerous condition, and permitting the storage of the storm windows in a place where a fall through the space left by the absence of a baluster could proximately result in injury to a child.

Defendant urges that on the issue of proximate cause the case of McInturff v. Chicago Title & Trust Co., 102 Ill App2d 39, 243 NE2d 657 (1968) is controlling. We do not agree. In MeInturff the plaintiff’s evidence, including facts and circumstances and the inferences to be drawn therefrom, did not more strongly support her theory of recovery than it supported inferences to the contrary. The circumstances in this case strongly support the conclusion that the only manner in which Curt could have fallen was through the open balusters onto the storm windows. Holsman v. Darling State Street Corp., 6 Ill App2d 517, 523, 128 NE2d 581 (1955); Thomas v. Smith, 11 Ill App2d 310, 316, 137 NE2d 117 (1956).

Defendant challenges the form of the verdict as submitted to the jury:

“We, the jury find the Defendant guilty and assess the Plaintiff’s damages against said defendant at the sum of $-dollars, and we further assess punitive damages against said defendant at the sum of $-dollars.”

After a careful reading of the record, we are extremely doubtful that defendant properly preserved an' objection to the verdict form. However, counsel’s remarks were ambiguous, and although they were more consistent with a position that no verdict on punitive damages should be given because counsel felt that the evidence did not support the case of willful and wanton negligence, we prefer to rule on the merits of the issue.

The complaint was filed in two counts, count I alleging negligence in the allowing of windows to be stored in the well of the stairs and in maintaining the stairway with balusters missing; and count II alleging the additional facts that the property was condemned after notice as being unfit for human habitation; alleging willful and wanton conduct in improperly storing the windows, in allowing the premises to remain in a state of disrepair following such notice, and asking punitive damages.

The facts alleged and proved warranted punitive damages. See Kimes v. Trapp, 52 Ill App2d 442, 445, 202 NE2d 42 (1964). Basically the form of the verdict is held sufficient if the jury’s intention may be construed not only from the actual verdict but from the consideration of the whole record before it. Kimes v. Trapp, supra. We find that the verdict was in proper form.

Defendant objects generally to numerous instructions refused and to numerous instructions tendered without specific argument. It is apparent from the record that in the conference on instructions much of the same approach was taken. On our own search of the record, the only question in this regard which requires consideration is the refusal of the court to give instructions tendered by the defendant that the minor was a licensee or trespasser on the premises rather than an invitee as the jury was instructed.

The jury was properly instructed, in our opinion, that May Moyer was under the duty to exercise ordinary care to keep the property reasonably safe for use by the minor plaintiff.

While we believe that the jury was properly instructed as to the essential element of the duty owed to the minor plaintiff, we do question the characterization of the minor as an “invitee.” In our opinion the case should not be decided upon the invitee-licensee question at all. This distinction has been applied almost uniformly in situations where the plaintiff is suing his host. In the cases involving third parties on the premises in which the distinction is made between the invitee and the licensee status, it is usually in a case where the landlord leases the building or a part of it to a business operation and one of the employees of the business operation, or custamers of the business, are injured and sue the landlord.

It is in these situations where the customer has been “publicly invited” or there is “a mutual economic benefit.” The argument by analogy that in this case babysitting was a “contemplated” use or that the landlord was the object of mutual benefit because his tenant was earning money and the tenant paid rent to the landlord is too tenuous.

The reason for the distinction itself has become obscured in hundreds of contrary cases throughout the country and the present movement appears to be toward a rule which holds that in cases where the old invitee-licensee rule would have been applied, that the principle should be that one in occupation or control of the premises owes a duty to take such care as is reasonable in all the circumstances of the case to see that visitors (excluding only trespassers) to the premises will be reasonably safe in using them for the expected purpose. See 95 ALR2d 992, Annotated, 1016-19.

Here we believe the duty is to be measured by the rule, set forth in a number of Illinois cases, that when a portion of the premises is rented and the landlord retains control of other parts of the same passageways for the common use of tenants, he has the duty of exercising reasonable care to keep the premises in a reasonably safe condition, and he is liable for injury which results to persons lawfully in such place from failure to perform such duty. B. Shoninger Co. v. Mann, 219 Ill 242, 245, 76 NE 354 (1906); Murphy v. Illinois State Trust Co., 375 Ill 310, 313-14, 31 NE2d 305 (1941). We find no reversible error in the giving of the instruction, however, since the duty has been correctly stated without regard to the label used.

We are also of the opinion that the amount of the verdict and judgment are supported by the evidence and, therefore, within the province of the jury. Swearinger v. Klinger, 91 Ill App2d 251, 256, 234 NE2d 60 (1968).

We have taken an oral motion with the case. Plaintiff asks that defendant’s abstract be stricken and the appeal dismissed for failure to comply with rules. The abstract appears to be a verbatim copy of the entire record and this is a practice which we do not condone. However, the record in this case was not extremely long and we deny the motion and have determined the case on the merits.

The verdict and judgment below are affirmed.

Affirmed.

ABRAHAMSON and MORAN, JJ., concur.


text:
    Kane Ford Sales, Inc., Plaintiff, v. Frank Cruz, Defendant and Frank Cruz, Third-Party Plaintiff-Appellee, v. John W. Cox Insurance Agency, and Carl Schmidt, Individually, Oriol Del Swiger, an Individual, Third-Party Defendants-Appellants.
    Gen. No. 69-95.
    Second District.
    January 22, 1970.

      Alschuler, Putnam, MeWethy, Weiss & Weiler, of Aurora, for appellants.
    No brief for appellee.
   MR. JUSTICE SEIDENFELD

delivered the opinion of the court.

John W. Cox Insurance Agency, Carl Schmidt, and Oriol Del Swiger, (collectively referred to as the “Cox Agency”), third-party defendants below, appeal from a judgment entered by the magistrate in favor of Frank Cruz, third-party plaintiff.

The Cox Agency urges that an insurance agent, who procures a policy in a company that subsequently proves to be insolvent, is not liable without proof of breach of duty to exercise reasonable care in transacting the business entrusted to him; and that there is no evidence of breach of such duty to support the judgment.

Frank Cruz was the defendant in the suit of Kane Ford Sales, Inc. to recover the amount of an automobile repair bill. Cruz sued to recover damages from, the Cox Agency for alleged negligent failure to obtain an insurance policy which would be available to pay the repair bill. The evidence is uncontroverted that Cruz was insured by the Cox Agency in 1965; that in 1966 he réceived notice that his insurance was being cancelled because the Company he was then insured with was going out of business; that the agency promised to place him with another company and did, in fact, procure an “assigned risk” policy for Cruz from the Illinois Casualty Insurance Agency, Inc.; that a claim representative of Illinois Casualty authorized the repair after the accident, but became insolvent and did not pay the bill; and that the Cox Agency had no knowledge of the insolvency until it learned of the failure to pay the bill.

The evidence does not support the judgment and it must be reversed.

An insurance broker is bound to exercise reasonable skill and diligence in the transaction of the business entrusted to him and he will be responsible to his principal for any loss resulting from his failure to do so. Johnston v. Otta, 340 Ill App 270, 275, 91 NE2d 468 (1950). However, absent proof that the agent in some manner breached his duty, he is not liable when the company in which the policy is procured later becomes insolvent. Gettins v. Scudder, 71 Ill 86, 89 (1873). See also 29 ALR2d, Annotated, pp 171, 182.

While no appellee’s brief was filed, we have considered the entire record and can find no evidentiary support for the judgment below within the applicable rules of law.

We, therefore, reverse, and in view of the uncontroverted evidence, do not remand.

Reversed.

ABRAHAMSON and MORAN, JJ., concur.


text:
    Charlene O’Brien, Plaintiff-Appellant, v. Colonial Village, Inc., a Corporation, East Towne Shopping Center, Inc., a Corporation, and the Chas. V. Weise Co., a Corporation, Defendants-Appellees.
    Gen. No. 69-98.
    Second District.
    January 22, 1970.
    Berry, Simmons and Coplan, of Rockford, for appellant.
    Edwin T. Powers, Jr., and Robert K. Clark, of Rockford, for appellees.
   MR. JUSTICE SEIDENFELD

delivered the opinion of the court.

Appeal is from a final order dismissing the amended complaint of Charlene O’Brien against the owners and operators of a shopping center, Colonial Village, Inc., and East Towne Shopping Center, Inc., and one of the tenants of the center, The Chas. V. Weise Co. The single issue is whether the complaint states a cause of action for injuries resulting from a criminal assault by a third person which occurred in the parking area.

The amended complaint alleged, in material substance, that plaintiff drove her car to the shopping center at about 4:30 p. m. on June 18th, 1966, parked it, and went to the Weise Co. store, where she made a purchase; that upon her return, when her car would not start, an unknown male offered to help and thereby gained entrance to her car; then assaulted her and drove her from the scene.

The shopping center is described as consisting of twenty-seven business establishments, “so large as to be a small city or village,” with a ten-acre parking lot. The duty to exercise reasonable care to protect customers from unlawful attacks and to warn of dangers is charged. Breach of duty is alleged in the failure to provide security personnel to police the premises, coupled with the fact that the city does not police the parking area.

We conclude that the trial court properly dismissed the complaint for failure to allege facts sufficient to create a duty on the part of defendants to the plaintiff, as a matter of law.

There is a duty of an owner or occupier of land, which the public is invited to patronize, to maintain the premises in a reasonably safe condition for anticipated use; and there may be circumstances which extend this responsibility to protect a patron against a criminal attack by a third person. See 10 ALR3d, Annotated, 619, 630-635.

The plaintiff argues that the city-like presence of thousands of people daily on the premises raised a duty to anticipate and guard against criminal action. However, the liability at common law is not that of an insurer, but is based on fault. See Shelton v. The City of Chicago, 42 Ill2d 468, 475, 248 NE2d 121 (1969); and Miller v. Chicago Transit Authority, 78 Ill App2d 375, 383, 223 NE2d 323 (1966). Obviously, every risk which is foreseeable does not create a duty to an injured person. In addition, the likelihood of injury, the magnitude of the burden of guarding against it, and the desirability of placing the burden upon a defendant must also be considered. Lance v. Senior, 36 Ill2d 516, 518, 224 NE2d 231 (1967); Loring v. Heinz, 108 Ill App2d 451, 454, 248 NE2d 785 (1969).

Plaintiff relies principally on Neering v. Illinois Cent. R. Co., 383 Ill 366, 50 NE2d 497 (1943). While the sufficiency of the complaint was not the issue in Neering, the facts are entirely dissimilar. There the defendant was charged with knowledge that the area was infested with tramps, hobos and other undesirable characters; a “hobo jungle” was nearby; the railroad had notice that these persons loitered about and even slept in the waiting room; and, in fact, had been so notified by the plaintiff.

In Meyer v. Riverview Park Co., 342 Ill App 218, 222, 96 NE2d 379 (1950) the pleadings in Neering were noted by the court, which concluded that the prerequisite of a good complaint in a case similar to this must show not only danger of assault but that the defendant had notice of such danger and should reasonably have anticipated it.

In Altepeter v. Virgil State Bank, 345 Ill App 585, 597, 104 NE2d 334 (1952), the failure to allege in the complaint that the Bank knowingly permitted robbers or undesirable characters to loiter about its premises was said to distinguish that case from Neering. The complaint was held insufficient to raise a duty to guard against the criminal act of one not in the bank’s employ. See also Moore v. Yearwood, 24 Ill App2d 248, 250-251, 164 NE2d 215 (1960).

We conclude that the common-law duty of reasonable care owed to persons lawfully on premises cannot be extended to a duty to guard against the criminal acts of a third person, absent knowledge of previous incidents or special circumstances which would charge the owners with knowledge of the dangers and the duty to anticipate it. Such circumstances are not alleged in this complaint, and it, therefore, failed to state a cause of action.

The judgment below is affirmed.

Affirmed.

ABRAHAMSON and MORAN, JJ., concur.

       The original complaint had charged prior incidents of criminal activity on the premises which were known to defendants. After defendants filed a motion for a bill of particulars, plaintiff was unable to support these allegations and the complaint was amended to delete them.


text:
    Clarence W. Shoemaker, Plaintiff-Appellant, v. Ronald Edmonds, Defendant-Appellee.
    Gen. No. 69-75. (Abstract of Decision.)
    Third District.
    January 26, 1970.
    Rehearing denied February 27, 1970.

      Clarence W. Shoemaker, pro se, of Aledo, appellant; Gene McWhorter, of Aledo, for appellee.
   Opinion by JUSTICE RYAN. Not to be published in full


text:
    Dallas Woolbright, Plaintiff-Appellee, v. Arthur T. McIntosh & Co., a Corporation, and Woolbright, Inc., a Corporation, Defendants-Appellants.
    Gen. No. 69-135. (Abstract of Decision.)
    Second District.
    January 26, 1970.
    Fearer and Nye, of Oregon, for appellants; Paul F. O’Neil, of Rochelle, for appellee.
   Opinion by JUSTICE ABRAHAMSON. Not to be published in full.


author: SMITH, J.

text:
    People of the State of Illinois, Plaintiff-Appellee, v. John L. Britton, Jr., Defendant-Appellant.
    Gen. No. 10,953.
    Fourth District.
    January 26, 1970.

      William R. Heiss, of Decatur, for appellant.
    Basil G. Greanias, State’s Attorney of Macon County, of Decatur (John D. Riddle, Assistant State’s Attorney, of counsel), for appellee.
   SMITH, J.

The defendant was found guilty by a jury of attempted murder and sentenced to the Illinois State Penitentiary for a period of eight to twenty years. The sole question presented on this appeal is whether or not his representation in the trial below was so inadequate as to deprive him of due process of law. We think not.

The attempted murder was committed on October 10, 1966. The defendant was apprehended, indicted, had a public defender appointed to represent him, pleaded not guilty and then filed a motion for an incompetency hearing. Psychiatric testimony was produced and on February 27, 1967, a jury found him incompetent and he was committed to the Department of Mental Health of the State of Illinois. Following such commitment, the public defender filed an affirmative defense in this ease contending that the defendant was insane at the time of the commission of the crime. On July 6, the defendant was discharged from the institution as cured and returned to Macon County for trial. He requested the discharge of the public defender, and other counsel was appointed for him on the trial. The expertise of counsel on all other matters in this record is not disputed, but he elected not to offer any evidence on behalf of the defendant on the insanity issue and it is this determination on his part that prompts this appeal and is the only issue on which it is founded.

Under Ill Rev Stats 1967, c 38, § 6-2(a), “A person is not criminally responsible for conduct if at the time of such conduct, as a result of mental disease or mental defect, he lacks substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of law.” Under the pri- or law, the test was fundamentally whether the defendant had sufficient capacity to know the difference between right and wrong and the capacity to make a choice. People v. Jenko, 410 Ill 478, 102 NE2d 783. The committee comments to the statute point out that the statute substituted the term “appreciate” instead of “know” and that this is an effort to find the term more congenial to modern psychiatric notions of understanding and is intended to provide for some additional flexibility in the scope of expert testimony. It is to be noted here that we deal with two types of capacity: (1) cognition and (2) volition. The first is a sufficient mental capacity in the defendant to recognize the criminality of his conduct and the second is the mental capacity to direct his conduct to conform to the requirements of the law. If he lacks substantial capacity in either of these areas, he is not criminally responsible under the statute.

In the instant case, three psychiatrists examined the defendant and their examinations are sufficient to support the jury’s verdict that on February 27, 1967, he was incompetent to cooperate with counsel and participate in the trial. He was committed to an institution and discharged the following July. In the February hearing, the tests to be applied were whether or not the defendant understood the nature of the charges against him and whether he could cooperate with his counsel in conducting his defense in a rational and reasonable manner. People v. Bender, 20 Ill2d 45, 169 NE2d 328. The test for insanity when it is used as a defense to relieve one from criminal responsibility is, as we have noted above, entirely different. People ex rel. Wiseman v. Nierstheimer, 401 Ill 260, 81 NE2d 900. A determination by the jury that the defendant in February was not competent to stand trial or to cooperate with his counsel and conduct his defense in a rational and reasonable manner does not mean per se that he was so insane on October 10 as to excuse him of criminal responsibility at the time of the crime. People v. Seawright, 73 Ill App2d 426, 220 NE2d 101.

We have read this record and the psychiatrists’ reports and they do not per se suggest that the defendant was insane at the time of the commission of the crime. The following July he was released from institutional care and returned to the courtroom for trial. The defense counsel had the advantage of observing this defendant, his conduct, his actions, and concluded not to make the defense of insanity even though the prior attorney had filed it after the adjudication of incompetency in February. The defendant twice shot a stranger in a tavern. The defendant had come in with a transistor radio going full blast and apparently the stranger asked him to cut it down some. The defendant had apparently been drinking and he took a shot at the stranger. This is typical conduct for this individual, according to the psychiatrists, when he is confronted with what he conceives to be a hostile situation and this condition is aggravated by drinking. The filing of the affirmative defense by defense counsel after the adjudication of incompetency in February was, of course, proper as we have noted. Whether or not that defense and evidence of it, if indeed such was available, should be presented calls for the exercise of sound discretion on the part of the defendant and his attorney. There is nothing in the conduct or the language of the defendant during the course of this trial that suggests, indicates or intimates any insanity. His own testimony was based on self-defense.

In People v. Morris, 3 Ill2d 437, 449, 121 NE2d 810, 817, the Supreme Court discusses in general terms what constitutes competency of counsel and states that the defendant must clearly establish, among other things, “(2) substantial prejudice resulting therefrom, without which the outcome would probably have been different.” In the case at bar, it is not suggested that the psychiatrists would have testified that the defendant was insane at the time of the commission of the crime. There is no showing that he was even intoxicated at the time of the commission of the crime. There is no showing that a different result was likely to obtain if the defense of insanity had been presented at the trial. We cannot say from this record that it was an error of judgment on the part of defense counsel not to raise the defense of insanity. In People v. Heirens, 4 Ill2d 131, 143, 122 NE2d 231, 238, the Supreme Court said:

“It may be conceded that the circumstances under which the crimes were committed, the opinions of examining psychiatrists, the involuntary disclosures of petitioner while under the influence of sodium pentothal, and other matters in evidence, indicate the presence of an abnormality rendering him unable to control his conduct, and might well have justified a finding that he was not legally responsible for the acts at the time they were committed. But the mere fact that counsel failed to advise their client to defend on such grounds does not amount to a denial of due process. Insanity is a defense to be asserted at the trial as any other defense; and the decision not to advise such a defense, even if it were a mistake, does not of itself show that the defendant was inadequately represented. Mistakes of counsel will not amount to a denial of due process unless on the whole the representation is of such low caliber as to be equivalent to no representation at all, and to reduce the proceedings to a farce or a sham. See People v. Reeves, 412 Ill 555, 562-563, 107 NE2d 861.”

In our judgment these principles control in this case. There was no inadequacy of representation of this defendant and hence no denial of due process. The judgment is affirmed.

Affirmed.

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


author: SMITH, J. CRAVEN, J.P

text:
    People of the State of Illinois, Plaintiff-Appellee, v. David Littleton Rollins, Defendant-Appellant.
    Gen. No. 11,068.
    Fourth District.
    January 26, 1970.

      CRAVEN, P. J., dissenting.
    John C. Tucker and John G. Stifler, of Chicago (Raymond, Mayer, Jenner & Block, of counsel), for appellant.
    Basil G. Greanias, State’s Attorney of Macon County, of Decatur, for appellee.
   SMITH, J.

Appeals involve, as we know, a review of errors said to have been committed by the trial court. However, not every error will be reviewed — generally only those that have been committed wittingly, so to speak. This means that somehow the happenstance complained of must have been brought to the attention of the court, for in many instances this gives it an opportunity to avoid or otherwise obviate the mishap. A common way of doing so is by objection, ideally, ahead of time, but in any event, at the first opportunity. But, a party can waive erroneous (in his view) happenings and he does so by not objecting. Take the rule against hearsay. A party might wish to waive it in a given situation. He does so by doing nothing. Conversely, if he opts to enforce the rule, he signals his nonwaiver by objection, thus giving notice of an issue of law and its terms.

But this is not precisely our problem. Here, we are asked to remand for errors which would generally not be reviewable because they were not brought to the attention of the trial court, at least at the time they should have been. We say “generally,” however, because if the errors are plain and they affect substantial rights we can indeed notice them and act thereon. The occurrences now complained of, other than as to two instructions, passed unnoticed at the trial. They are said to be “plain error.”

The statutory definition of the rule reads:

“. . . Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the trial court.” Ill Rev Stats 1967, c 110A, § 165 (a), Supreme Court Rule 615.

As is apparent, the “plain error” rule has the effect of giving a defendant the right to get his foot in the door for appellate review even though the happenings as to which he feels aggrieved were not “perfected,” “saved,” or “preserved,” as it is said. We make this statement not to question the wisdom of the rule but rather to emphasize that its invocation will be effective so far as we are concerned only when the happening really is plain error and really does affect substantial rights and is capable of causing a miscarriage of justice. In supplying the adverbs, we do not change meaning, rather supply it. If we do not articulate the rule in this fashion we debase the system. Without belaboring the point the administration of public justice is not sub-served by new trials, the more so when the errors that might command just that could have been avoided— say by letting the court in on it at the time. Our procedure contemplates a single occasion — one trial — not successive occasions until the perfect-error-free trial is achieved. What is more, the rule that errors must be preserved, saved or perfected, works against a tactic lamentably still extant when a defendant’s only interest is in “collecting error” for use here if the result goes badly. We would not want to be a party to giving aid and comfort to those so inclined by inadvertently broadening the rule to the point that error, not amounting to plain error, can be collected in silence and then be used to obtain that second occasion, which, as we have said, should be eschewed. In saying this, we are not implying that such was the case here. At this juncture, the observations of Judge Learned Hand in United States v. Brown, 79 F2d 321, 326 (2nd Cir 1935) is most apt:

“When the very merits of the case are clear; when only one result can honestly emerge; and when the jury has in fact been satisfied, we no longer look upon criminal procedure as a sacred ritual, no part of which can be omitted without breaking the charm. Trial by jury is a rough scales at best; the beam ought not to tip for motes and straws.”

With this foreword we take up the matter before us —an appeal from a conviction of burglary. The facts can be succinctly put. Defendant attended an all-night beer party at a friend’s apartment where it was decided to procure a television set from a nearby house conveniently vacant for the weekend — this happened early Easter morning. The set was indeed obtained. Five boys were involved, three did the actual breaking and entering, one stayed out in front, and defendant in back. After the three reappeared from the house with the television, all five returned to the apartment. Whoever instigated the adventure, or rather misadventure, had forehandedly telephoned the house just to make sure that it was empty. All of them knew this. The intake of beer had been considerable and no doubt contributed to an omnipresent lack of self-restraint, to put it mildly. Indeed, as to one, constraint was posse he had passed out and luckily missed what turned out to be not very much fun at all. Defendant gave the police a statement which differed very little from the above recitation and his testimony at the trial. The same can be said as to his two codefendants — who do not appeal — and as to the one who became a so-called accomplice witness. The defense was lack of intent — in short, a prank.

The first point urged — and for outright reversal — does not involve the plain error rule as might be expected after all we have said. It involves the very charge itself. Here for the first time (other than in the post-judgment motion) it is argued that the information failed to charge the requisite intent necessary to sustain a conviction, specifically, that the information failed to charge that defendant intended to promote or facilitate the burglary either before or during its commission by aiding and abetting the others in its commission.

We will assume as basic that one can’t be convicted of an offense not charged. The point can certainly be asserted at any time. The information charged that defendants “entered without authority a building occupied and possessed . . . with intent to commit therein a theft” — an adequate charge for burglary. Defendant in arguing its inadequacy states that the proof showed him to be, at best, an aider and abetter and refers us to § 5-2 of the Criminal Code, Ill Rev Stats 1967, c 38, § 5-2, which, he says, requires a more expanded intent for those who are “mere” aiders and abetters. Such section reads:

“A person is legally accountable for the conduct of another when:
(( • • •
“(c) Either before or during the commission of an offense, and with the intent to promote or facilitate such commission, he solicits, aids, abets, agrees or attempts to aid, such other person in the planning or commission of the offense. . . .”

Assuming proof of the intent called for in this section was necessary to support the conviction, does it have to be set forth in the charge? In other words, assuming that he was an aider and abetter, was he convicted of an offense not charged?

This section is not a definition of a particular crime, rather it is a statement of when one can be held criminally accountable — it relates to parties and when they are responsible. Even if an aider and abetter, defendant can still be charged, tried and convicted of the crime he aids and abets. Simply put, there is no such crime as being an aider and abetter. All section 5-2 does is to make one who does aid and abet a burglary— a burlgar! It is not descriptive of any offense. It is descriptive of conduct which can render one accountable for crime. By emphasizing the physical aspects of burglarious conduct defendant sloughs off the plain purport of this section which makes it clear that one can be physically absent while a crime is being committed and yet be as guilty as those on the scene. That proof of the intent called for in § 5-2 may be necessary to support a given conviction, is not saying that such intent must be set forth in the charge. To support a conviction on a charge of burglary it is enough if it is shown that the one convicted was a so-called aider and abetter of that offense.

The first “plain error” complained of occurred with regard to testimony concerning defendant’s statement — or confession — to the police. In narrating the circumstances the officer testified that he informed defendant of his rights, that his father who was present telephoned his attorney, after which defendant “hesitated” and then talked. In argument, the State’s Attorney pointed to this as consciousness of guilt:

“He hesitates. He doesn’t want to say about his involvement because he knows it shows he is guilty of the crime charged.”

There was no objection as to any of this. The argument goes that this evidence and the excerpt from the argument was so highly prejudicial that they amount to plain errors which we can therefore notice, as they affect substantial rights of a constitutional nature and that being eligible for notice, we have naught to do but to do so and then remand for a new trial.

Now the “hesitation” is, as we all know, a mere conclusion and probably, if there had been an objection, satisfactorily dealt with. The same may be said as to the telephone call to counsel and the argument set out above. One wonders, however, whether evidence of “hesitating” before talking to the police or preceding such by a call to one’s attorney really does raise the inferences defendant says they do. The State’s Attorney apparently thinks so too, as he argued just that as we have seen. But arguing that it does, either there or here, doesn’t make it so. What might be said in favor of defendant’s position if he had refused to talk is beside the point. The fact remains that he did and he repeated what he told the officer upon the stand. It is, therefore, hard to read into this context the inflammatory inferenees said to arise from these trial events. Cases are cited to us of comment on an accused’s failure to testify or to cooperate with the police. Such are not germane. We deal only with this case, not an infinite variety of single instances. Strain as we might, we cannot say that in these occurrences there was “plain error” that we can notice, much less use as a basis for a remand. “Hesitation” raises, in our mind, inferences pro and con — at least in this case it does. Even if we could characterize these happenings as error, the error is very far from being “plain.”

Plain error, too, we are told, involves the admission into evidence of matters that occurred long after the “commission of the alleged burglary.” These have to do with testimony that “the defendant unlocked and opened the door when . . . the others arrived back” at the apartment, that he helped carry the television back to the apartment, or that if he did not, he was present with those who did, and evidence that the accomplice-witness attempted to sell the set. The argument goes that defendant was charged with burglary, not theft and that anything that occurred subsequent to the breaking and entering is immaterial. This evidence, commented on in argument, heightened the prejudice, or so it is said.

Burglary by definition is the breaking and entering with intent to commit a felony — here a theft. The best way we know to show this intent in the minds of those who break and enter is to prove the crime of theft itself. Theft encompassing the idea of permanent deprivation and asportation, as the older cases phrase it, or removal of the object of the theft, is certainly one way, if not the best way, of proving just that. Indeed, what could be more probative of an intent to commit theft here than the removal of the television set from the owner’s house to the apartment whence defendants had just come and, so, too, proof of the television’s ultímate disposition — sale? Proof of an intent to deprive an owner of a given article would include proof of the article’s sale and anything in between. There was a “consensus” — defendant’s own word — thus a common design to obtain the set and the rule is that where such exists the acts of one become the acts of all who were part of such “consensus.” The evidence complained of was properly admitted, thus, again, there was no error at all — much less was it plain.

The next point has to do not with the admission of evidence but rather its exclusion. Again, there was no objection and no offer of proof — though one can easily conjure up its content had it been made. The asserted restriction relates to defendant’s character witnesses. An attempt was made to show the witnesses’ acquaintanceship or knowledge of the defendant “to substantiate the basis for their opinion as to defendant’s reputation in the community.” Objection to such line of inquiry was sustained.

The only basis that a character witness need have is that he know the defendant’s general reputation for the relevant trait. It would not be objectionable in most circumstances to permit elaboration on how this knowledge was obtained, but such is certainly discretionary — particularly as to the offering party. Since the witnesses did state that they knew — that is enough. An adverse party can test this by cross-examination. The fact that it was not so tested furnishes a basis for a contraargument — that the witness’ knowledge was sufficient. An important aspect of reputation testimony is that the witnesses’ knowledge is not based upon particular acts or specific instances. Reputation is what a community thinks of a person. A character witness does not give his “opinion” as to somebody’s reputation. Reputation is a fact. Does the witness know it or not? It is not “opinion” testimony, which in most instances does call for substantiation. Characterizing proof of this kind as “opinion” testimony may have led to defendant’s confusion. The limitation imposed was eminently proper.

The “plain error” most relied upon involves opening argument. It is said that this error, together with the others, created an atmosphere in which the prosecution perverted the presumption of innocence and sought a conviction “by any means or device at any cost.” Specifically, it was stated in argument, that the “prosecutor, ignoring the most basic tenets of Anglo-American jurisprudence, announced to the jurors that unless they returned a verdict of guilty, he would bring charges of misconduct against each and every one of them.” This is the excerpt from the argument so arraigned:

“Everyone that is guilty of an act in violation of the law, stands in utter disregard for the law . . . a juror that fails to do anything other than to convict those individuals is guilty of a breach of trust, of misconduct as a juror. And I would charge every one of you — each and every one of you with that offense if the verdict in this case were not guilty.”

There was no objection. In fact, during the whole argument covering six pages of the record there was only one objection and it concerned a quibble as to cost. But now in the cool aftermath of appellate review, this statement is seized upon as bringing the “trial atmosphere into clearest focus” and is likened with “denunciatory fervor” to the 12th Century writ of attainder — a device used by judges to coerce verdicts until the 17th Century. Now, defendant says, the State’s Attorney “would turn the clock back a long way indeed,” in that his “threat” to charge the jurors with misconduct “if they returned a verdict of not guilty . . . differs only in degree from the efforts to achieve the same result by the threat of writ of attainder, imprisonment or a fine.”

In another context, where a Commission was likened to the Star Chamber of the Stuarts, Mr. Justice Cardozo thought that historians might find “hyperbole in the sanguinary simile.” See Jones v. SEC, 298 US 1, 80 L Ed 1015 (1936). We feel the same way. Somewhat abashed at the “denunciatory fervor” visited upon him, the State’s Attorney says we should read the whole argument, text in context, and that if we do so, the excerpt objected to takes on a different flavor. It is not amiss at this juncture to note that between the court and two defense attorneys no one construed the statement to mean what it is said to mean now. We say this because if even remotely it could be considered a threat, certainly the court would have interjected itself, to say nothing of counsel. We would even say in this day and age that if even momentarily the construction now placed upon this paragraph had been realized by the State’s Attorney, he would have been quick to add an admonitory explanation, that no “threat” should be implied— that he was merely exhorting them to do their duty. The State’s Attorney argues that the complained of language is precisely that — an adjuration to the jury to remember their oaths and to do their duty. We read it that way, too. We cannot, as defendant urges, equate “charge” with “prosecute,” nor can we say that “misconduct” is a synonym for “crime,” although the Criminal Code of 1961 discarded the various “feasances” and introduced “misconduct,” as the descriptive word of various crimes relating to the performing of public responsibilities— such as that of jurors here. We doubt that present day jurors would understand it that way. “Charge” has various meanings — much broader than “prosecute.” It can be equated with exhort or adjure. It is a synonym of “instruct.” In the Federal practice, the court “charges” the jury. Maybe if this argument had been made in the 17th Century, a different and more dire meaning would attach to it — but not today. We would be aghast to discover that this statement coerced a verdict. Being aghast, we cannot say that this was an error so plain and so destructive of substantial rights that a new trial should be had. Considering defendant’s own testimony, the challenged part of the argument cannot be said to have been a material factor in his conviction. We are convinced that there was no intentional overreaching. As Judge Hand said in another case:

“To seize upon it now, without any contemporaneous objection or exception, is quite unwarranted. It would almost certainly have been corrected. Few records could survive such scrutiny, and justice to the prosecution requires that what has once been accepted, shall not later be unraveled. In a very serious matter perhaps we might intervene even when the mistake would have been corrected, but the prejudice here was wholly inferential and speculative, and the guilt, clear.” (United States v. Frankel, 65 F2d 285, 288 [2d Cir 1938]; cert denied 290 US 682 [1933]).

The two remaining matters can be dealt with quickly. They deal with instructions that were objected to. An accomplice instruction, almost identical with the one recommended in IPI — Criminal (1968), No. 3.17, was given at the request of the State. It reads:

“An accomplice witness is one who testifies that he was involved in the commission of a crime with the defendant. The testimony of an accomplice witness is subject to suspicion, and should be acted upon with caution. It should be carefully examined in light of the other evidence in the case.”

The objection to this instruction is that the jury might have concluded that defendant fell within the definition of “accomplice” and therefore they would view his testimany as suspect. Defendant sought an instruction which would differentiate his role as an alleged defendant-accomplice from that of a witness-accomplice.

We find it hard to see how a jury would think of this defendant as one who testified that “he was involved in the commission of a crime with the defendant.” After all, he was one of the three defendants and even the most naive of the jurors must have known that all three denied guilt. The very instruction itself makes it clear that an accomplice cannot be a defendant, the accomplice admits his guilt, a defendant by definition denies it. The instruction was proper and the one tendered properly rejected. Nothing was to be gained by an instruction stating that the defendants were not accomplices. The second instruction is also straight out of IPI — Criminal, No. 3.07:

“You have before you evidence that the defendant confessed that he committed the crime charged in the indictment. It is for you to determine what weight should be given to the confession. In determining the weight to be given to a confession, you should consider all of the circumstances under which it was made.”

Defendant argues that there was no confession — rather, what he told the police was a “statement,” and that a statement is not an acknowledgment of guilt, whereas a confession is. This differentiation is correct. A confession is a comprehensive admission of guilt or of facts which necessarily and directly imply guilt. Defendant says that what he told the police was not a confession because he told the officer that he stood by while others entered the house and removed the television. But as we have seen from our discussion of accountability, one can stand off in the wings, as it were, and yet be held accountable for the action center stage. What he told the police was indeed a confession as we have just defined it. There is a reasonable inference from what he told the police officer that he committed the crime with which he was charged. That his answers were not couched in the terms of the statutes on accountability or burglary is hardly remarkable — it would have been remarkable if they had been. The facts he recounted to the police reasonably and directly implied guilt, hence the characterization was proper.

Defendant was fairly tried and fairly convicted. From the evidence a jury could rightfully and reasonably infer the requisite intent and, therefore, guilt. Simply because he denied such intent does not mean that triers of the fact are bound thereby. They had the right to opt otherwise and they did just that. In our opinion, the verdict was not forced nor did error intervene. The judgment is accordingly affirmed.

Affirmed.

TRAPP, J., concurs.

CRAVEN, P. J., dissenting.

CRAVEN, J.P

dissenting:

The State’s Attorney, in his closing argument, used improper and prejudicial remarks which, in my view, constitute plain error affecting the substantial rights of the defendant. This error necessitates a remandment for a new trial.

As I understand the majority on this issue, they agree that the argument was improper but conclude that the prejudice was not such as to require a new trial in view of the evidence of guilt.

The prosecutor, in his closing argument, said:

“Everyone that is guilty of an act in violation of the law, stands in utter disregard for the law, that has no respect for the law, that demonstrates that by their conduct, when that is brought to the jury’s attention, a juror that fails to do anything other than to convict those individuals is guilty of a breach of trust, of misconduct as a juror. And I would charge every one of you — each and every one of you with that offense if the verdict in this case were not guilty. You would not be following the law, you would not be paying any attention at all to the evidence. I say that it isn’t up to you to decide here today what the law should be. . . .” (Emphasis added.)

Any member of this jury could reasonably have understood from this argument that a not guilty verdict would result in a charge against the juror of misconduct as a juror. A verdict arrived at under such an apprehension, explicit or implicit, should not stand.

That which the Supreme Court stated in People v. Romero, 36 Ill2d 315, 223 NE2d 121 (1967), is applicable here. The court stated (at 320 (223 NE2d at 124)):

“. . . we have often held, both in civil and criminal cases, that if ‘prejudicial arguments are made without objection of counsel or interference of the trial court to the extent that the parties litigant cannot receive a fair trial and the judicial process stand without deterioration, then upon review this court may consider such assignments of error, even though no objection was made and no ruling made or preserved in the trial court.’ (Citing cases.) ”


text:
    In the Interest of Kathy Sue Burr, a Minor. People of the State of Illinois, Petitioner-Appellee, v. Susan Burr, Defendant-Appellant.
    Gen. No. 11,097.
    Fourth District.
    January 26, 1970.

      Robert W. Ohlsen, of Decatur, for appellant.
    Basil G. Greanias, State’s Attorney of Macon County, of Decatur (Garry E. Davis, Assistant State’s Attorney, of counsel), for appellee.
   SMITH, J.

The matter before us arises under the Juvenile Court Act of 1965, Ill Rev Stats 1967, ch 37, § 701, et seq. However, the appeal is not by the minor, but rather an adult, her mother. The mother appeals from an order holding her in contempt for violating an order of protection resulting in a sentence of five days in jail.

She raises a number of points — some concern the Order of Protective Supervision itself, others, whether it was in fact violated. With regard to this Order, it is said that such was beyond the court’s authority, being unreasonable, and if not, it was otherwise bad because entered in a context devoid of procedural safeguards. As to the contempt order, she argues lack of a finding of willful disobedience and no evidence to support one anyway.

The Order of Protective Supervision on which the contempt was based, reads;

“It is therefore ordered, adjudged and decreed that Susan Burr, mother of Kathy Sue Burr, see that minor is in school on every school day on or before 8:10 A. M.; that if the minor Kathy Sue Burr is absent because of sickness, for each day of absence she shall present a doctor’s certificate; that in violation of this order, the mother shall be sentenced to the Macon County Jail.”

The mother had been made a party to the proceedings involving her daughter, hence, she was before the court from a jurisdictional standpoint. Under this Act this is possible, §4-1(4) (Ill Rev Stats 1967, eh 37, §704-1 (4)):

“If an order of protection under Section 5-5 is sought against any person, the petition shall so state, shall name that person as a respondent and give the address where he resides.”

The petition alleged that her daughter was otherwise in need of supervision because of truancy. At the hearing on this petition an attorney was appointed to represent both mother and daughter. Though the truancy was admitted, the daughter was not declared a ward, rather the cause was continued for a period of one year with the minor permitted “to remain in the custody of her mother, under the friendly supervision” of the court. Neither objected. The authority for the continuance and “friendly supervision” is § 4-7 (1):

“In the absence of objection made in open court by the minor, his parent, guardian, custodian or responsible relative, the court may, before proceeding to findings and adjudication, continue the hearing from time to time, allowing the minor to remain in his own home subject to such conditions as to conduct and visitation and supervision by the probation officer as the court may prescribe.”

Some months after this continuance, a “Report of Violation of Friendly Supervision” was filed and a hearing held. It turned out that there was no evidence to support the Report, but the court on its own initiative (apparently) entered the Order of Protective Supervision against the mother set forth above. Again, there was no objection. The Act with regard to protective orders as to “any person” provides in § 5-5 (1):

“The court may make an order of protection in assistance of or as a condition of any other order authorized by this Act. The order of protection may set forth reasonable conditions of behavior to be observed for a specified period by any person who is before the court on the original or supplemental petition. . . .”

Shortly after this order became effective, another Report of Violation was filed. As a result, and without going into all the details, the mother was cited to show cause why she should not be held in contempt for not abiding by the Order of Protective Supervision. Separate counsel for the mother was appointed and a hearing set. At the hearing before a magistrate on reference, evidence was presented of continued truancy and the mother was thereupon directed to show cause. In her own behalf she testified that the absences were due to illness; that she worked until 1:00 a. m. as a waitress; that she had two other children at home and was their sole support. She further testified that she had done nothing to keep her daughter out of school or dissuade her from going. There were a few doctor’s “excuses,” but not enough. The finding and holding of contempt followed.

We proceed to the points cited for reversal. Was the Order of Protective Supervision consonant with § 5-5 (1) ? The question is one of reasonableness. To us it seems eminently so. The daughter was alleged in the petition to be a “Minor ‘Otherwise in Need of Supervision,’ ” which definitionally, in § 2-3, includes “any minor subject to compulsory school attendance who is habitually truant from school.” Section 5-5, as we have seen, states that the court can prescribe reasonable conditions of behavior to be observed by any person who is before the court.

An order directing a mother to so comport her behavior to insure her daughter’s attendance unless ill, and that such must be supported by a physician’s certificate, is not unreasonable. The Act stresses care and guidance in the environment of the home in furtherance of its purpose of maintaining “family ties.” § 1-2, “Purpose and Policy.” Custody was in the mother. It was she and only she who had the day-to-day ability to end the truancy. The requirement of the doctor’s certificate seems to us to be a reasonable condition. After all, the court could reasonably conclude that to order a mother to have her child in school, without more, had a built-in susceptibility to easy evasion — sickness. The temptation to overuse such “excuse” could be thwarted by the requirement of a professional opinion. It also had the virtue of forestalling assertions of sickness long after the fact when proof to the contrary would in the nature of things be almost nil. It was not unreasonable to require that someone other than the child or the person responsible for her should make that determination. Foreknowledge that failure to abide by the Order could result in being “sentenced to the Macon County Jail,” was simply stating the obvious, but consonant again with the Purpose and Policy of the Act that it be administered with regard to the “limits of understanding of all who appear before the court.” § 1-2 (2).

Was it reasonably entered? Or more to the point, were the mother’s rights violated by its entry, absent notice that such was about to happen, or rather, that it might happen? As we have said there was no objection to the Order at the time of its entry. But this is too easy an answer. It has the vice of leaving an implication circumambulating in the air that had there been an objection, and denied, such might be grounds for reversal here. Hence, we look elsewhere for the answer if there is one.

Section 5-5(1) says that an order of protection can be entered as to anyone who is “before” the court. The mother suggests that she should have had advance notice that an order of protection as to her was being sought or indeed simply contemplated. We disagree. The Order of Protective Supervision did not deny or otherwise affect the mother with regard to her liberty or property, at least to the extent that it might require the safeguards we generally associate with due process and fair hearing. We do qualify this statement, however, by facing up to the fact that a prescription relating to the “behavior to be observed” is a constraint of sorts, but it is certainly not the type of prescription which needs to have surrounding it the panoply of safeguards needed, say, on a criminal charge. Being a respondent, she was a party to the proceedings. Due process does not require that an order of this kind need have more to sanction it than was present here. An order telling a mother to have her daughter in school or suffer the consequences — jail—hardly fits into the niche which requires specific notice that such is being sought, assuming jurisdiction over the mother, and the presence of counsel. These we have here. The suggestion that courts and not parents under the Juvenile Court Act are given the responsibility for educating the children of this state is in error — to put it mildly. The Act contemplates no shifting of this indisputable responsibility. The further suggestion that the mother should have been proceeded against under the School Code, Ill Rev Stats 1967, c 122, § 26-1, et seq., while a possibly proper avenue, is certainly not exclusive. Why provide for orders of protection containing “reasonable conditions of behavior to be observed, . . . and then delimit it to matters not provided for in the School Code or elsewhere. To sum up, the conditions imposed upon the mother in our context were reasonable, and the means of imposition consonant with the Act, and the Act is consonant with due process. Telling a mother to behave like one is not exactly the kind of an order which demands the strictest procedural niceties. The most needed and required preconditions she had — notice to being made a party-respondent, and counsel.

Relative to this latter aspect — counsel—she says that she shared him with her daughter at the time the order of Protective Supervision was entered and that separate counsel should have been assigned to her because there was a conflict of interest between her and her daughter. She buttresses her argument by pointing to the separate appointment that in fact did take place on the rule to show cause. In our opinion, there was no conflict between her and her daughter at the time of the hearing on the report of violation, nor was there at the time the court entered the Order of Protective Supervision on its own motion. Their interests were really identical. While it was a wise move for the magistrate to appoint separate counsel on the proceedings involving just her, it must have been hard, even then, to see where any potential conflict could exist between mother and daughter, unless, of course, there was some prospect that the daughter would have to testify against her mother. Such in fact did not occur, which, of course, doesn’t detract from the wisdom of separate appointment.

The question of contempt. Was the evidence sufficient to justify holding the mother in contempt and if it was, should there have been a specific finding of willful disobedience ? The order reads:

“Susan Burr found to be in contempt of court for failure to obey court’s order of 20 March 1968 and sentenced to a term of five days in the Macon County Jail.”

Section 5-6 of the Act states that orders of protection may be enforced by citation to show cause for contempt of court by reason of any violation thereof. There was evidence, as we have seen, of absences without excuses. While not the most ideal working hours, to 1:00 a. m., still such standing alone, is not inexorably indicative of helplessness in obeying the terms of the order. Her statement that she did nothing to hinder or dissuade attendance and the stipulation that she said she did all she could to keep the girl in school presents only a question of fact when placed alongside the unexcused absences — a question of fact as to whether or not the disobedience was willful. Certainly a trier of the fact could, and here did, resolve such question.

We will agree that to sustain the finding of contempt, the mother’s conduct must be willful and intentional which subsumes ability to comply. Whatever may be the rule on direct contempts, at least in the situation before us, there need be no specific finding of willful disregard or disobedience if the evidence justifies that conclusion. In our opinion the evidence did, or to phrase it another way, as a reviewing court, the order appealed from is supported by the evidence, and we will therefore not disturb it. The order appealed from is affirmed.

Affirmed.

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


author: TRAPP, J.

text:
    R. J. Vanderlaan, d/b/a R. J. Vanderlaan Construction, Plaintiff-Appellee, v. Berry Construction Company, a Delaware Corporation, J. Everett Sims, Marjorie M. Sims, John J. Molloy and Dorothy J. Molloy, Defendants, J. Everett Sims, Marjorie M. Sims, John J. Molloy, and Dorothy J. Molloy, Defendants-Appellants.
    Gen. No. 11,103.
    Fourth District.
    January 26, 1970.
    Samuels, Miller, Sehroeder, Jackson & Sly, of Decatur (John E. Fick, of counsel), for appellants.
    Wilson, Dyar, Houchen & McDonald, of Decatur (Vernon H. Houchen, of counsel), for appellee.
   TRAPP, J.

Plaintiff, a subcontractor, sued Berry, the principal contractor, and the owners of certain real estate, claiming a balance due upon a subcontract. The owners moved to dismiss the complaint for failure to state a cause of action against them. The magistrate denied such motion and the owners elected to stand upon their pleadings. Judgment was entered in favor of the plaintiff in the sum of $1,965.95. The owners appeal. The record shows judgment by default against the contractor in the stated sum.

Plaintiff’s Exhibit A, the subcontract concerned, explicitly notes that Berry is the principal contractor and that plaintiff is a subcontractor who is to furnish labor and materials for a portion of the work under the principal contract and that plaintiff is to be paid by Berry, the contractor.

Count I of the complaint alleges the contract between the plaintiff and Berry, performance by the former, and the balance due. The owners are named as defendants to such cause of action. The Count further alleges that the labor and material supplied by plaintiff were to meet the specifications set out in the contract between the owners and Berry. There is no allegation of service of notice of a subcontractor’s lien upon the owners as provided in chapter 82, § 24, Ill Rev Stats 1967. It is alleged that at the time plaintiff completed the work, the owners were indebted to the contractor in an amount greater than the balance due plaintiff and that they knew that the plaintiff had not been paid by the contractor.

Count II alleges that the subcontract was prepared “by and at the direction” of the owners and “incorporates” the terms of the principal contract between the contractor and the owners; that the owners received the benefits resulting from plaintiff’s construction, and that plaintiff performed in accordance with the directions of the owners’ engineer.

The motion to dismiss noted that no facts concerning compliance with the Mechanic’s Lien Statute were pleaded; that Count I of the complaint shows, upon its face, that there was no contract between plaintiff and the owner-defendants, and that no other facts are pleaded which state a cause of action against them; that Count II fails to state facts showing any equitable lien in the favor of the plaintiff, but that the pleadings show only a contract between Berry and the plaintiff.

The owners contend that a subcontractor has no cause of action against the owner except as provided by the Mechanic’s Lien Statute and that no notice invoking such statute was pleaded or, in fact, given. Chapter 82, § § 21, 24, Ill Rev Stats 1967.

In the absence of an express contract with the owner, a subcontractor, or one contracting with a principal contractor, cannot recover against the owner upon a contract theory for there is no employment between them. Peers v. Madison County Board of Education, School Dist. No. 3, 72 Ill 508; Baker v. Mayer, 163 Ill App 391; 9 CJ, 176. As to recovery from the owner, the rights of a subcontractor arise under the Mechanic’s Lien Statute. Suddarth v. Rosen, 81 Ill App2d 136, 224 NE2d 602.

In Suddarth there was an action to foreclose a mechanic’s lien by a subcontractor. He contended that a notice of a subcontractor’s lien as required in chapter 82, § 24, was unnecessary as there was actual notice of plaintiff’s claim and that the strict and technical requirement of notice should not defeat recovery for labor and material supplied in good faith by a subcontractor. The court affirmed a judgment for defendant holding that such notice was a condition precedent to a lien and that without such lien the subcontractor could not recover against the owner.

Here the plaintiff contends that the owners should be held liable because they knew of the work and received the benefit thereof. In Campbell v. Day, 90 Ill 363, it is stated that the doctrine that one seeing work done upon his property without objection is liable to the person performing it has no application where the entire work is contracted for and placed under another who has the power to employ whom he chooses. It is said that the owner has the right to presume that such work is being done for and in behalf of the contractor. See also Sloan v. Cleveland, C., C. & St. L. Ry. Co., 140 Ill App 31.

The statute providing for a mechanic’s lien has long been construed as being in derogation of the common law and strictly construed as to the manner of invoking it. Since plaintiff has not undertaken to state a cause of action in terms of a lien as a subcontractor, it is unnecessary to review his several contentions regarding the owners’ alleged duties to procure affidavits from the contractor and retain funds as provided in chapter 82, §§ 5, 24 and 27, Ill Rev Stats 1967.

In view of the law established as to the applications of the Mechanic’s Lien Statute, it is unnecessary to discuss at length plaintiff’s contention that the principal contract and the subcontract must be construed as one instrument so as to create liability in the defendant-owners.

The magistrate erred in refusing to dismiss the complaint as to the owner-defendants who appeal. The judgment below is reversed and remanded with directions to enter judgment in favor of the owner-defendants who appeal, with costs to be paid by plaintiff.

Reversed and remanded.

CRAVEN, P. J. and SMITH, J., concur. *


text:
    Russell W. Steger, Claimant-Appellant, v. Sherlie I. Lappin, Executor of the Estate of Richard Lappin, Deceased, Defendant-Appellee.
    Gen. No. 69-86.
    Second District.
    January 27, 1970.

      Nettles and Mahoney, of Freeport, for appellant.
    Laughlin and Laughlin, of Freeport, for appellee.
   MR. JUSTICE SEIDENFELD

delivered the opinion of the court.

This appeal is from a judgment order denying a claim by Russell Steger, claimant, against the Estate of Richard Lappin, Deceased, a former employee.

At issue is whether the trial court correctly found that there was no promise to repay money advanced to decedent during his lifetime, except from the employee’s earnings from commissions.

The court below, sitting without a jury, reviewed his findings of fact and law in a memorandum of opinion. He found that Lappin was a man of some 17 years’ experience in the insurance business, and the Steger Agency was anxious to secure him from his previous employment; each of the monthly checks to Lappin bore the legend “advances” or “adv.,” and were also so described in the Steger Agency ledger sheets; at the beginning of the employment, Lappin told Steger that he needed to make $900 a month; and there was no evidence of an express agreement to repay any sums.

The court found that a note given by Lappin to Steger at the outset of their negotiations in the amount of $985, being without a maturity date and providing for no interest, merely evidenced the amount due at that time and was not inconsistent with a “simple advance without any agreement to repay from monies other than the commissions earned.”

The court further found from the evidence that after about six months of employment Lappin, in 1967, asked for additional money and presented his financial statements which he said indicated his needs for an additional $100 per month; that otherwise he would have to seek other employment; that as an inducement to keep Lappin, Steger agreed to pay the additional amount to assure Lappin of $1,100 per month. The court further noted that it was obvious from the financial statement furnished by Lappin that recovery could not have been reasonably expected from any source other than future commissions.

Claimant argues that the manifest weight of the evidence clearly shows a mutual intention to repay the advancements represented by the promissory note and the additional monthly sums advanced beyond the financing agreement and the monthly salary items. In support of this argument claimant relies principally upon the bookkeeping entries in Steger’s ledger, which were furnished monthly to Lappin, as proof that the additional payments, which are claimed, were treated separately from the items which were not intended to be claimed and which were not included in the ledger accounting.

Claimant further relies considerably upon Lap-pin’s own financial statement furnished to Steger at the time he asked for the additional amount in 1967 which lists the $985 item under the heading of “notes” and the additional monthly advances by Steger, not including the “salary items” as “monthly advances” under the heading of “financing.”

The rule of construction has been enunciated: Where a contract of employment provides for advances to any employee, which are to be charged to and deducted from commissions, the employer cannot recover from the employee in the absence of either an express or implied agreement to repay any excess of advances over commissions earned. Srere v. Rapp, 233 Ill App 190,194 (1924).

This rule is consonant with the majority rule in the United States which holds that unless there is an express stipulation or convincing circumstances indicating a contrary arrangement, advances to an employee will be presumed to constitute minimum compensation. Agnew v. Cameron, 247 Cal App2d 619, 55 Cal Rptr 733, 735-6. See also 165 ALR 1367, Annotated. (For the somewhat similar but converse situation wherein the employee sues to recover for advances promised but not paid and which are in excess of commissions earned, see 95 ALR2d 504, Annotated.)

The rationale of the existence of the majority rule is that the employee’s undertaking is in the nature of a joint enterprise with the employer, the main object of which is the employer’s business, and it is not to be assumed that the employee, in furnishing his time and ability, is to assume all risk. Consideration is also given to the assumption that an employer has superior bargaining power which imposes upon him the duty to make the return of previously transferred funds a matter of explicit contract, recognizing a judicial reluctance to cause forfeiture of money already received. The burden to show a contrary intent is placed upon the party seeking repayment. Srere v. Rapp, supra, page 195. Agnew v. Cameron, supra, at page 736; 165 ALR, Annotated, supra.

We believe that the trial court correctly applied the rule of construction to the facts of this case. There was no express agreement to repay excess of commissions over advances. The full time services of an experienced employee were sought in furtherance of the Steger Agency business and payment to him was made in regular monthly amounts. Neither any of the testimony nor the records in evidence are sufficient to show an implied agreement that the employee would repay any advances, except from commissions which he earned. The promissory note was given at the initiation of the employment, was carried on the employer’s ledger as an “advance.” The fact that Lappin’s financial statement in evidence carried the note under one heading and the advances sought to be recovered by the employer under a separate heading is simply a classification and record of money advanced, but does not answer the question of which fund is to be made available for their payment.

The employee’s statement, at the time of the subsequent increase in his advance, that he considered the amounts his personal obligation is also not determinative of any agreement to repay irrespective of the earning of commissions.

In fact, the evidence points to the contrary conclusion that it was perfectly apparent, because of the employee’s financial condition, that commissions to be earned were the only fund which could be expected to be available to repay the advances. The clear implication from the record is that the employer intended to pay a minimum compensation to meet the employee’s stated needs and expected that the arrangement would last long enough and be successful enough to enure to the agency’s advantage.

We, therefore, affirm.

Affirmed.

DAVIS, P. J. and MORAN, J., concur.

       The testimony was that the parties contemplated that there would be $600 monthly from the New England Mutual Insurance Company under an “advanced plan financing agreement for experienced agents,” plus a salary from Steger of $300 a month. However, the insurance company would only agree to $500 monthly on the advanced plan financing agreement basis and Steger agreed to add an additional $100 a month.

       The testimony was that Lappin had incurred a number of expenses in connection with his previous employment which he felt he had to meet before he would be able to make the new association and to give him “peace of mind to proceed.” A check from Steger to Lappin is dated March 17th, 1966, in the amount of $985 with no reference to the purpose of the payment on the check. A promissory note signed by Lappin to the order of Steger in the same amount is dated March 15th, 1966, and also has no reference to the purpose of the obligation.

       Claimant agrees that it was not contemplated that the financing plan payments or the salary would be repaid out of any other source than the commission account and makes no claim for these items.

       A representative portion of the ledger shows:
      Date Item Debits 1966
      3 15 Adv. 985.00
      6 15 Adv. 100.00
      1085.00
      7 1 Adv. 100.00
      1185.00
      8 1 Adv. 100.00
      1285.00


author: PRESIDING JUSTICE THOMAS J. MORAN

text:
    People of the State of Illinois ex rel. Ruth Porten, Petitioner, v. LeRoy Geske, Highway Commissioner of Nunda Township, McHenry County, Illinois, Respondent.
    Gen. No. 69-91.
    Second District.
    January 27, 1970.
    Rehearing denied March 16, 1970.
    Steinbrecher and Narusis, of Crystal Lake (Bernard V. Narusis, of counsel), for appellant.
    Frederick J. Steffen, of Elgin, for appellee.
   PRESIDING JUSTICE THOMAS J. MORAN

delivered the opinion of the court.

This action in mandamus was brought by an owner of land (petitioner) in Porteris Hickory Knoll Subdivision in Nunda Township, McHenry County, against the Township Highway Commissioner (respondent) to require the respondent to make the roads of that subdivision a part of the township road system for purposes of future maintenance. The petitioner proceeded on two theories: first, that there had been a common-law dedication of the subdivision roads to the township, and second, that the subdivision roads had been used by the public as highways for fifteen years or more.

The case was tried before a jury and its verdict found in petitioner’s favor on both theories. The trial court rejected the verdict on the issue of common-law dedication but entered judgment for the petitioner on the verdict that the interior streets of the subdivision had been used by the public as highways for fifteen years or more. This appeal is taken only from that part of the court’s judgment which was entered in favor of the petitioner.

The respondent denied that he ever did any work on the roads in his official capacity. He also testified that he never directed the use of township equipment or the placing of township materials on the roads in question. He did admit that township snow plowing equipment went through a portion of the subdivision but explained that that was because the township road entering the area ended in a steep hill where the plows could not be turned and it was, therefore, necessary to go through the subdivision to turn the plowing equipment, He also testified that on one occasion the township helped to get a stranded school bus out of the subdivision and sometimes the township plowed snow to help people with heart conditions get to their doctors. In the usual course of events, the township did not plow all of the streets in the subdivision.

The petitioner testified that the township had installed a culvert under one road and had done some occasional patching. The petitioner also testified that the subdivision roads were used by school buses and delivery vehicles.

Documentary evidence was introduced to show the formation of the Hickory Knoll Community Club incorporated in 1940 for the purpose of installing roads. The corporate records of the club were admitted showing forty-eight different entries covering the period 1941 through 1964. These items had generally to do with road maintenance and covered such matters as calling for volunteers to help with road work, passing expenditures for gravel, grading, clearing rocks and stumps, installing culverts and signs, oiling the roads, providing drainage, blacktopping and widening. In the 1950’s Roy Geske, the respondent’s father, who was then the township road commissioner, had blacktopped the roads but the minutes of the club clearly show that he submitted a bill and was paid for this work.

In summary then, the total of the petitioner’s proof indicates that the respondent installed one culvert and did certain patching and that he did snow plowing on certain roads. The respondent explains the snow plowing by the fact that his plows were unable to turn around without entering the subdivision. The question presented to us is whether this evidence is sufficient to support the verdict of the jury and the finding of the trial court.

We recognize that, we have no right to substitute our judgment for the judgment of the trier of fact and that we must affirm unless the decision is contrary to the manifest weight of the evidence, Woodrick v. Smith Gas Service, Inc., 87 Ill App2d 88, 97, 230 NE2d 508 (1967). However, when the decision is contrary to the manifest weight of the evidence, then it is our duty to reverse, Elgin Lumber & Supply Co., Inc. v. Malenius, 90 Ill App2d 90, 97, 232 NE2d 319 (1967). We conclude in this case that the petitioner has not sustained her burden and that we must reverse.

Section 2-202 of the Illinois Highway Code (Ill Rev Stats 1967, c 121, § 2-202) defines a public highway as “any public way for vehicular traffic which has been . . . used by the public as a highway for fifteen years. . . .” Under sections 6-201 and 6-201.8, the township highway commissioner is required to maintain and improve the roads of his district. Under section 6-305, he need not lay out, widen, alter or vacate a roadway if he finds that that action is not in the public or economic interests and, under section 6-325, a roadway need not be included in the township road system if it does not comply with the specifications established for roadways by the county board. In the case at bar it is clear that the roadways in question do not comply with the county board’s specifications.

In the case of Taylor v. Wentz, 15 Ill2d 83, 88-89, 153 NE2d 812 (1958), the Supreme Court said:

“In determining whether a public highway has been established by user, the test is not the number of persons actually using it, but the character of that use, — i. e., whether or not it was by members of the public generally under claim of a free and unrestricted right to do so.”

In the case of Koch v. Mraz, 334 Ill 67, 165 NE 343 (1929), the Court held that a road did not become a highway when its only use was as a means of access to a group of summer cottages and a hotel. At page 77, the Court said:

“A road laid out and kept up by the owners of the grounds over which it lies will not become a public highway merely because for a period of fifteen or more years there was not continuous or frequent objection to its use in going to and from the lots in that territory. To so hold would be to render the ownership of private drives precarious, indeed. The fact that strangers may have driven in to view the grounds is not evidence that such use was under adverse claim of right in the public so to do.”

In the case of Harris v. Schwartz, 351 Ill App 351, 355, 115 NE2d 345 (1953), the Court said, “The mere fact that residents, visitors, and people serving the residents, used the road did not satisfy the requirements necessary to establish a public use.” See also Andrews v. City of Springfield, 56 Ill App2d 201, 205 NE2d 798 (1965).

The case of People v. Waitkus, 30 Ill2d 335, 196 NE2d 668 (1964) involved a set of facts very similar to those in the case at bar. In that case there was evidence of a few instances wherein the township commissioner did work on the roads. However, in reversing, the Court, at page 339, said:

“There is no showing of any continued or systematic maintenance for 15 years or any period of time. These acts fall far short of any claim of right in the public.
“Many acts of dominion of defendant over the property inconsistent with a claim of right of the public were shown. In 1943 defendant’s father posted signs on the road of ‘No Trespassing’; ‘Private Property’ and ‘Keep Out,’ which remained posted until after this litigation was commenced. Defendant spent substantial sums of money each year over a period of years to maintain the road. Such acts of dominion and control are inconsistent with a claim of right by the public.”

While the petitioner in this case did not erect any “No Trespassing” signs, or similar signs, it is clear from this record that, over the years, petitioner spent considerable money for road maintenance, culvert installation and the like. These acts are inconsistent with the present claim.

It appears to this Court that a finding that public roads had been created by the infrequent and minor acts exhibited on the part of the respondent in this case would be contrary to the case law cited herein. We, therefore, must reverse the order of the trial court.

Reversed.

ABRAHAMSON and SEIDENFELD, JJ., concur.