author: MR. JUSTICE SEIDENFELD

text:
    The Department of Public Works and Buildings of the State of Illinois for and in Behalf of the People of the State of Illinois, Petitioner-Appellant, v. Grover D. Porter and Gladys Porter, Defendants-Appellees.
    Gen. No. 69-211.
    Second District.
    May 21, 1970.

      William J. Scott, Attorney General of State of Illinois, of Springfield, William P. Ryan, Assistant Attorney General, of Springfield, Richard E. Quinn, Special Assistant Attorney General, of Peoria, and Frank P. North, Special Assistant Attorney General, of Rockford, for appellant.
    Reno, Zahm, Folgate and Skolrood, of Rockford, for appellees.
   MR. JUSTICE SEIDENFELD

delivered the opinion of the court.

The only issue is whether the defendant owners are entitled to interest under the Illinois Interest Act (Ill Rev Stats 1967, c 74, § 3) on monies deposited by petitioner pursuant to a motion for immediate vesting of title under Ill Rev Stats 1967, c 47, § 2.6, which the owners chose not to withdraw prior to the conclusion of proceedings.

The condemnation petition was filed February 5th, 1968. The “quick take” order was entered on February 15th, 1968. The trial court set preliminary just compensation at $11,372.

Thereafter petitioner deposited that sum plus the required additional 25 percent, or a total of $14,215, and the court entered its order vesting petitioner with title and authorizing possession of the property on and after April 4th, 1968.

The jury returned a verdict of just compensation in the amount of $17,602. A judgment order was entered on the verdict on June 26th, 1969, providing that interest be paid to defendants at the rate of 5 percent per annum on the $14,215 “quick take” deposit from date of possession, April 4th, 1968, to date of judgment, June 26th, 1969; and further that interest be paid at the rate of 6 percent per annum on the difference between the deposit and the verdict from date of possession to date of judgment.

Thereafter, on July 16th, 1969, pursuant to a petition by defendants to withdraw funds, the court entered an order authorizing withdrawal of preliminary just compensation in the amount of $11,372. Defendants did not withdraw any funds under this order.

We hold that the defendant property owners are entitled to interest only on the difference between the deposit and the verdict as provided in part in the judgment order below. The remaining portion of the order providing for interest on the amount of the preliminary deposit which the defendants chose not to withdraw is, in our opinion, erroneous.

Defendants have argued that the Illinois Constitution (Art II, §§ 2, 13) provide for just compensation and ckce process; and that requiring an owner to withdraw funds deposited upon a “quick take” violates these provisions in that he is forced to invest at his peril for a time uncertain to receive a fair interest return.

The provisions of section 2.6 of the Eminent Domain Act, as material here, show a clear legislative intent to exclude interest under section 3 of the Interest Act where interest is payable under the Eminent Domain Act:

“The petitioner shall pay, in addition to the just compensation finally adjudged in the proceeding, interest at the rate of six percent (6%) per annum upon:
“(a) Any excess of the just compensation so finally adjudged, over the amount deposited by the petitioner . . . from the date on which the parties interested in the property surrendered possession of the property in accordance with the order of taking, to the date of payment of such excess by the petitioner.
«
“When interest is allowable as provided in Subsection (a) of this Section, no further interest shall be allowed under the provisions of Section 3” (of the Illinois Interest Act).

Defendants’ argument that the interest provisions under the Eminent Domain Act are not exclusive in all circumstances is conceded. However, the authorities cited by defendants support the conclusion that when interest is payable under section 2.6 of the Eminent Domain Act, no interest is allowed under the Interest Act.

In Department of Public Works and Buildings v. Larson, 22 Ill2d 425, 176 NE2d 753 (1961), the final verdict was less than the amount deposited under the “quick take” order. The Supreme Court held that since no interest was payable under section 2.6 (a), there being no excess of verdict over amount deposited (and 2.6(b) being inapplicable also), section 3 of the Interest Act was applicable and the owner was entitled to interest at 5 percent on the quick take deposit from the date of the verdict and judgment.

Larson is not authority for defendants’ position that even though interest was allowable under the Eminent Domain Act, it may also be allowed under the Interest Act from the date of delivery of possession of the property under the quick take provisions to the date of final payment.

Nor does Department of Public Works and Buildings v. Schon, 42 Ill2d 537, 250 NE2d 135 (1969), cited by defendants, support their position. The case held that, when the verdict exceeds the total amount deposited on quick take (including the additional 25 percent), the owner is entitled to interest only on the excess of the verdict over the total amount deposited since that section refers to “amount” deposited in the singular. No question of the applicability of section 3 of the Interest Act was raised in the case. The majority opinion was confined to a construction of the applicable statutes and refused to consider a constitutional question which was not presented to or passed upon by the trial court. The dissenting opinion of Mr. Justice Schaefer, which defendants have referred to in oral argument, has no relevance to the theory of the defendants in this case. The dissent was on the basis that just compensation requires interest on the difference between the amount which the property owner is entitled to withdraw and the final judgment, and that he should not be deprived of interest on the amount he “cannot touch” (page 540). This issue has not been raised here and, therefore, we do not pass upon it.

The constitutional rights of the landowner in a condemnation suit have been often stated to require the payment of just compensation, being the value of the property taken at the time of the taking; “and, if the taking precedes the payment of compensation, the owner is entitled to such addition to the value at the time of the taking as will produce the full equivalent of such value paid contemporaneously. Interest at a proper rate is a good measure of the amount to be added.” (See Department of Public Works and Buildings v. Schon, at page 541.)

It is our opinion that our holding does not violate these constitutional principles.

Defendants have cited a number of cases dealing with payment of interest on condemnation judgments in cases prior to the enactment of the “quick take” provisions of the Eminent Domain Act. (E. g., Leitch v. New York Cent. R. Co., 388 Ill 236, 58 NE2d 16 (1944); Johnson v. Sanitary Dist. of Rockford, 269 Ill App 429, 433 (1933)) as holding that interest is payable from the date of delivery of possession of the property to the date of payment. These cases are also not relevant here. In these cases, possession was taken by the condemnors without any payment to the owners and without any deposit made which was subject to their withdrawal. The cases, therefore, rightfully provided for interest because the condemnor had the use of the property and the property owners had no payment available to them in the place of the property. Here, the pertinent section of the Eminent Domain Act provides for such payment after possession is taken.

Section 2.6 of the Eminent Domain Act, when applicable as it is here, provides the property owner with his full equivalent. An owner should not have the right to withdraw funds and by nonexercise of the right require a petitioner to pay interest on funds it has placed beyond its control.

That portion of the amended judgment order of the trial court providing that interest be paid at the rate of 5 percent per annum on the funds deposited with the court ($14,215) from the date of possession until the date of payment is therefore reversed. The remaining portion of the judgment order below is affirmed, and the cause is remanded for further proceedings below in accordance with this opinion.

Affirmed in part and reversed in part and remanded, with directions.

ABRAHAMSON and MORAN, JJ., concur.

       It is noted that the property owner is protected if he is not allowed to withdraw the funds by paragraph (b) of section 2.6 which provides for interest on the quick take deposit when the petitioner successfully resists a motion to withdraw.


source: Caselaw Access Project

author: CRAVEN, P. J.,

license: Public Domain

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Johnnie A. Weller, Defendant-Appellant.
    Gen. No. 11,034.
    Fourth District.
    May 21, 1970.

      Michael J. Kehart, of Decatur, for appellant.
    Basil G. Greanias, State’s Attorney of Macon County, of Decatur (Milo J. See, Jr., of counsel), for appellee.
   CRAVEN, P. J.,

delivered the opinion of the court.

This is an appeal from a conviction of murder upon trial by jury. Defendant was found guilty and sentenced to serve forty to sixty years in the penitentiary.

The defendant assigns as error the admission of a confession into evidence on the grounds that it was not voluntary error in the People’s opening statement, in that statements of fact were made which were never received into evidence, and prejudice by the length and detail of the opening statement. Further, the defendant asserts there was error in the denial of his request for a change of counsel. He also asserts failure of the People to establish a corpus delicti, improper instruction of the jury, and improper closing argument of the People to the prejudice of the defendant.

Defendant, Johnnie Weller, and his half brother, Phillip Guthrie, were arrested and indicted for the murder of Howard Richard Goodin, a Decatur barber. Weller was 17 years old at the time of his arrest and had completed the first semester of his junior year in high school.

Goodin, a Decatur barber, was reported missing, having last been seen by his sister on July 25, 1967, when he was driving his bronze 1966 Chrysler automobile. A week and a half or two weeks thereafter, his sister, her husband and Detective Derr of the Decatur City Police, entered and searched his apartment but found nothing to account for his disappearance.

Suspicion focused on Johnnie Weller and his half brother, Phillip Guthrie. Detective Derr inquired as to these men of a friend of theirs and learned the friend had received a postcard from defendant mailed from Florida. Derr telephoned Florida police searching for Weller and Guthrie. About a week later, in Decatur, Derr arrested Guthrie in a car with Weller’s brother. The next day Weller was arrested without a warrant by Decatur City Police.

This arrest, prior to any then known offense and without a warrant, was early on a Saturday morning—around 5:00 a. m. on August 19,1967. Defendant was questioned by the city police at about 9:00 a. m. on the day of his arrest. He refused to talk to the police. Questioning resumed an hour later and continued for about two hours. Again that evening, at 11:00 p. m., defendant was awakened by a police officer and told to give a statement. He refused. Once more during the night he was awakened by a police officer who, defendant testified, swore at him when defendant again refused to make a statement.

During his confinement defendant’s mother visited him four times. Detective Derr talked to her at least three times on the telephone. On Sunday, August 20, 1967, defendant’s father and mother visited him. Just prior to this visit they were told by Derr that defendant “could possibly be charged . . . [with] murder”; that if he made a statement “he could probably be brought up on a lesser charge . . . with a light sentence.” The father related this conversation to defendant. Also, Derr on that day told the parents he was not going to “bother” with Guthrie but “was going to concentrate on” defendant.

Mrs. Weller (defendant’s mother) visited him on Monday morning. Just prior to her visit Derr told her it would “be easier” on defendant if he would make a statement. Derr told her he could not tell defendant this, but that she could, and that if he would make a statement maybe the prosecutor could make allowances for his age. She told these things to defendant. He told her he was going to talk to Derr. Immediately after his mother’s visit defendant told Derr he wanted to talk about the case. Defendant testified that when he told Derr this, Derr told him it would “go easier” on him. The police then drove defendant to a cornfield to which he directed them, and where the body was found. The decomposed remains of the victim, Howard Richard Goodin, were found in the cornfield with hands and feet tied together with a rope. Upon return, a written statement was prepared from an interview with police and an assistant State’s Attorney, but defendant refused to sign it. This statement was the confession introduced at the trial.

Defendant filed a motion to suppress his alleged written confession based upon unlawful incarceration, age, prior illness, continual questioning by the police and violation of his constitutional rights. The court heard and denied this motion but found that his incarceration in the county jail constituted unlawful detention.

A motion for determination of competency was heard and denied.

Defendant requested a change of lawyers, which was denied.

Upon trial defendant was found guilty and sentenced.

We have reviewed carefully and at length the record in this case and considered the alleged error. Inasmuch as this case must be reversed and remanded for a new trial, for reasons hereinafter discussed, it is not necessary nor would any useful purpose be served in discussing at length each asserted error.

The trial court refused to suppress the confession and found it to be voluntary notwithstanding the fact that the defendant had been detained unlawfully. We cannot, under the Illinois authorities, say that the court was in error.

The question of the competency of a confession is for the trial court to determine. Further, the court is not required to be convinced of its voluntary character beyond a reasonable doubt when making its determination of voluntariness or involuntariness. People v. Carter, 39 Ill2d 31, 233 NE2d 393 (1968), and cases there cited. On review, we cannot disturb the finding of the trial court unless we find it contrary to the manifest weight of the evidence. This record does not lend itself to any such finding.

In McNabb v. United States, 318 US 332, 87 L Ed 819, 63 S Ct 608 and Mallory v. United States, 354 US 449,1 L Ed2d 1479, 77 S Ct 1356 (1957), we find holdings to the effect that confessions per se are inadmissible if obtained during illegal detention. In Carter the Illinois Supreme Court specifically recites that the McNabbMallory rule has not been adopted in this jurisdiction. (At 39 (233 NE2d at 398).) Thus, under the compulsion of Carter, this court cannot hold that a confession exacted during illegal detention is per se inadmissible.

The prosecuting attorney made a long and detailed opening statement. In the course of that statement he stated, in part, as follows:

“. . . They kept him [defendant] downstairs while Guthrie was being booked. In waiting for that completion to take Weller upstairs, and not in answer to a question, but voluntarily, Weller said, T didn’t tell you completely what happened in that statement this afternoon/ Derr asked him what he meant and he stated, T did not stay outside that cornfield as stated to you, but I went in the cornfield and I saw both his hands and his feet tied. Guthrie then told me to take the car and drive it away from the spot temporarily and come back momentarily to pick him up/ He stated to Derr that when he came back Guthrie was standing by the side of the road, got into the car, and Weller at that time, according to his own statement, said, ‘What is the condition of the barber?’ And at that time according to his statement to Derr Guthrie stated that, ‘He is dead.’ ” (Rec p 265.)

The prosecutor further stated:

“Mr. Claude Henry will take the stand, he is a deputy sheriff of Macon County, and state that on the 22nd of August, this is the day after the finding of the body, the statement and transfer of these individuals to Macon County jail, that the investigation had been turned over to the Sheriff because the thing had apparently happened out of town in the country. Deputy Henry will testify that after advising the Defendant Weller of his rights, Defendant Weller made a statement to them, as he had to Derr, that he had gone into that cornfield twice and saw this individual, Howard Richard Goodin, tied hand and foot and hand and feet together. He left the cornfield and, according to his statement to them, when he had left Goodin was still alive and in a sitting position. When he left and took Goodin’s car and drove it about, then returned and picked Guthrie up at the edge of the road, he told Deputy Henry that as Goodin [sic, Guthrie] got in the car he asked him, ‘What has happened to Goodin?’ And at that time he again stated Guthrie said, ‘Goodin is dead.’ And Weller, according to his own statement and admission, stated, ‘How do you know?’ And Guthrie in reply is supposed to have said, ‘I put him face down in the mud and packed mud around him. . . .’” (Recpp265-266.)

The People sought to introduce the first of the above statements through direct examination of Detective Derr.

The court sustained defense counsel’s objection to this testimony. The People did not call Officer Claude Henry referred to in the opening statement.

It is the purpose of an opening statement to advise the jury concerning the question of facts and it is not, and should not be permitted to become an argument.

It should be brief and general rather than detailed, and should be free from material that may tend to improperly prejudice the accused in the eyes of the jury. It, of course, should contain an outline of the facts which the prosecution in good faith expects to prove and which it is competent for him to prove. It is improper, however, for the opening statement to be a long narrative evidentiary recitation by the prosecution. An opening statement of facts purporting to recite evidence not followed by proof of the recited facts is error. See 14A, ILP, Criminal Law, § 574, and cases there cited. The opening statement here offends against this limitation.

We next turn to a consideration of alleged error in the closing argument of the prosecutor to the jury. During closing argument the assistant State’s Attorney remarked to the jury that defense counsel “could . . . qualify as an SS Trooper” and likened his conduct of the defense and his tactics and argument to the SS Troops of World War II. He argued that defense counsel’s argument was a “sympathy smoke screen” and that his tactics were “to confuse and divert the opposition” while he “accomplished another . . . feat.” He stated that their sympathy should be with the victim; that “A human life was taken in one of the most horrible, heinous and repulsive ways of killing that Macon County has seen in some time. . . .” While defense counsel objected to the latter portion of the closing argument, he did not object to the earlier portion.

Ordinarily a defendant cannot be heard to complain on appeal about improper argument made without objection. However, where the argument and remarks are so prejudicial as to prevent the defendant from having a fair trial, the reviewing court may consider the error although no specific objection was made in the trial. See: People v. Moore, 9 Ill2d 224, 137 NE2d 246 (1956) ; People v. Fort, 14 Ill2d 491, 153 NE2d 26 (1958).

The People contend that the entire argument was justified as a reply to statements made by defense counsel. This is borne out only partly by our review of the record. We cannot from our examination of the record and the examination of defense counsel’s argument in any way find provocation for the statement that the defense counsel “could . . . qualify as an SS Trooper.” This was improper. This, further, has to be coupled with the improper, long narrative opening statement and the recitation in that opening statement of matters evidentiary in nature not received into evidence in one instance and not offered into evidence in another.

In People v. Dukes, 12 Ill2d 334, 146 NE2d 14 (1957) , the court considered an opening statement that injected nonevidentiary matter coupled with improper remarks in the closing argument of the prosecutor and observed (at 342-343,146 NE2d at 18):

“. . . It is improper for the prosecutor to do or say anything in argument the only effect of which will be to inflame the passion or arouse the prejudice of the jury against the defendant without throwing any light on the question for decision. (Citing cases.)

The combined improper remarks in the opening statement and closing argument were such as to deprive the defendant of a fair trial.

We turn now to consider two instructions. The People offered a flight instruction which was given over objection. The debate between the parties as to the evidentiary basis for a flight instruction on this record shows the wisdom of the committee charged with drafting Pattern Instructions in Criminal Cases in deciding that no instruction be given on the subject of flight, leaving the question of flight as a proper subject of argument. See IPI, Criminal, 3.03.

IPI, Criminal, 13.21 is an instruction relating to an inference arising from exclusive possession of recently stolen property. Whether such an instruction need be given upon retrial will, of course, be determined by the then evidentiary situation.

In People v. Guthrie, 123 Ill App2d 407, — NE2d — (4th Dist 1970), filed this date, the court found it necessary to reverse and remand the conviction of Guthrie, the half brother of the defendant here, and whose trial followed this trial by one week. In Guthrie, the court determined it to have been error to refuse an instruction on involuntary manslaughter. That issue is not tendered by this appeal. Nevertheless, that which is observed in Guthrie with reference to the propriety of such an instruction is applicable to the facts as established by this record.

For the reasons stated, this conviction must be reversed and this cause remanded to the Circuit Court of Macon County for a néw trial.

Reversed and remanded for a new trial.

SMITH and TRAPP, JJ., concur.


author: MR. PRESIDING JUSTICE DAVIS

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Clayton Robert Taylor, Defendant-Appellant.
    Gen. No. 69-100.
    Second District.
    May 21, 1970.

      John T. Beynon, Public Defender, of Rockford, for appellant.
    Philip G. Reinhard, State’s Attorney of Winnebago County, of Rockford (Rolland J. McFarland, Assistant State’s Attorney, of counsel), for appellee.
   MR. PRESIDING JUSTICE DAVIS

delivered the opinion of the court.

The defendant, Clayton Robert Taylor, was tried before the court and found guilty of robbery. He has appealed contending that he was not tried within the 120-day period required by statute (Ill Rev Stats 1967, c 38, par 103-5); and that his identification as the robber was so unsatisfactory as to raise a reasonable doubt and require a reversal of his conviction.

On August 5, 1968, the defendant was charged with the crime of armed robbery. He was indicted by the grand jury on October 17, and from August 8 he was represented by counsel of his own choice. At the arraignment on October 21, the case was set for trial on November 18, 1968; and on November 20, it was reset for November 25,1968.

On the latter date, counsel for the defendant withdrew, the public defender was appointed, and the case was reset for trial on November 26, 1968. On November 26, the defendant moved for and obtained a continuance until December 2, 1968, in order to prepare for trial. On December 2, the defendant filed motion to dismiss, based upon the 120-day statute. This motion was denied, and he filed a motion for a bill of particulars. The case was then continued until December 9, when the defendant was orally furnished the information requested in his motion for a bill of particulars. At this time, he indicated that he would be able to furnish the State his list of alibi witnesses within ten days.

The case was again called on March 17, 1969. At that time the defendant made a second motion to dismiss, based upon the 120-day statute, which was denied. He then waived jury trial and the case was set for trial on March 31. Ultimately, it was heard by the court on April 2,1969.

The 120-day statute has been interpreted by our courts numerous times. Its purpose is to give practical effect to section 9 of the Bill of Rights, which secures to an accused in a criminal case a speedy public trial, but does not fix specific limitations. The People v. Stillman, 391 Ill 227, 228, 62 NE2d 698 (1945); The People v. Meisenhelter, 381 Ill 378, 385, 45 NE2d 678 (1943). The statute is tolled, however, if the defendant seeks and obtains a continuance, agrees to a continuance, or by his own actions causes a delay in the proceedings. The People v. Bagato, 27 Ill2d 165, 168, 188 NE2d 716 (1963); People v. Knox, 94 Ill App2d 36, 39, 236 NE2d 384 (1968); People v. Canada, 81 Ill App2d 220, 228, 229, 225 NE2d 639 (1967). The new 120-day period starts to run from the date the delay occurred, or to which the cause was continued. The People v. Hamby, 27 Ill2d 493, 495, 190 NE2d 289 (1963); The People v. Niemoth, 409 Ill 111, 116, 98 NE2d 733 (1951).

The 120-day period first commenced to run against the defendant on August 5, 1968. After a number of false starts, the matter was set for trial on November 26, 1968, which was within the 120-day period. On that date, the defendant sought and obtained a continuance until December 2, 1968, to enable him to prepare for trial. The reason for the continuance was the substitution of counsel and the understandable need for additional time to prepare, but the fact of this continuance, at his request, caused the statute to toll, and a new 120-day period commenced on December 2. The People v. Faulisi, 34 Ill2d 187, 191, 215 NE2d 276 (1966); People v. Prowse, 71 Ill App2d 465, 468, 469, 219 NE2d 1 (1966). The filing of the bill of particulars on the date set for trial, and the delay to December 9 necessitated thereby, again caused the statute to toll and caused another new 120-day period to commence to run as of December 9.

The matter was brought up again on March 17, 1969, on defendant’s oral motion to dismiss, which was denied. The defendant at this time waived his right to a jury trial. This action took place within the 120 days from December 9, 1968. The petit jury was then in session and the waiver caused the case to be delayed and set for a later non jury setting on March 31, 1969. While ordinarily the waiver of a jury would expedite rather than delay a trial, such was not true in the case at bar since the setting was on the jury trial calendar and the non jury calendar did not begin until a later date. Under these circumstances, the defendant’s jury waiver again caused a delay of the trial date, which tolled the statute and caused the commencement of a new 120-day period. The People v. Fosdick, 36 Ill2d 524, 529, 530, 224 NE2d 242 (1967). The case ultimately was tried on April 2, 1969, which, however, was within the 120-day period from December 9,1968.

The record in this case clearly indicates that the delays beyond the original 120-day period were occasioned because of the defendant’s actions. One of the express exceptions to the 120-day statute, with reference to the requirement of a trial within such period, is the situation where the delay is occasioned by the defendant. Under the circumstances of this case, he has not been denied a speedy trial, nor has there been a failure to try the defendant within the time prescribed by statute. In construing this rule, courts will neither permit the State to evade the defendant’s right to a speedy trial, nor permit the defendant to avoid prosecution by causing a delay in the proceeding.

The defendant suggests that the 120-day statute is tolled only for the period of time it takes to dispose of the matters causing the delay, and that the statute does not start to run anew. Thus, if 115 days have elapsed when the defendant causes a 10-day delay, the defendant must be tried within 5 days after such delay. However, all Illinois cases referring to this matter, including those cited above, hold to the contrary. When a case is otherwise ready for trial and the delay is caused by the defendant, the 120-day period starts anew from the date the delay occurred, or to which the cause has been continued.

In his reply brief, the defendant altered his theory and suggested that he was denied his constitutional guarantee of a speedy trial, even if he was tried within the 120-day period of the statute. This argument was not urged in the original brief: it comes too late in the reply brief. The People v. 123 Punch Boards, 8 Ill2d 520, 521, 134 NE2d 763 (1956); Ill Rev Stats 1967, c 110A, par 341(g) (Supreme Court Rule 341(g)). The only argument presented by the defendant in his original brief was that the 120-day period did not start anew after a delay occasioned by him, but rather, that the statute was tolled only for the period of time required to dispose of the matter causing the delay; and that the defendant must be tried within such number of days as remained of the 120 days at the time when the defendant caused the delay. Such contention in the reply brief not only comes too late for our consideration, but also under the facts of this case, is without merit. People v. Brown, 117 Ill App2d 97,253 NE2d 140 (1969).

As to the contention that the identification of the defendant was so unsatisfactory as to require reversal, we believe that the testimony was adequate to sustain the trial court’s judgment. The victim, Dearie Turk, had gone to a steak house late in the evening. He was intoxicated and displayed a large roll of bills. Shortly after Turk arrived at the restaurant, the defendant came in and sat with him. He was identified as the man who sat with Turk by both the waitress and her husband, and was also identified by them in court. The waitress’s husband testified that the defendant left the restaurant first; that from the front window he watched the defendant get into his car; that later he saw Turk leave the restaurant and saw the defendant pick him up at the front of the restaurant. He was able to recognize and identify the defendant and his car.

Turk testified that it was the defendant who picked him up allegedly to give him help in locating his car; and that the defendant then drove into an alley and robbed him.

We do not find the identification of the defendant so vague, doubtful or uncertain as to leave a reasonable doubt. The waitress and her husband identified him as having been in the restaurant with Turk, and the waitress’s husband identified the defendant as the person who picked up Turk in front of the restaurant. They also identified him in court, and the waitress’s husband, on the evening of the crime, picked the defendant out of a series of photographs. Turk identified the defendant in court as the perpetrator of the crime. While he was intoxicated at the time he was robbed, apparently he spent sufficient time with the defendant to be able to recognize him. The testimony of the other witnesses lends credence to Turk’s identification of the defendant as the one who robbed him. The method or manner of identification is a matter which goes to the weight of the identification evidence, rather than its admissibility or competency. The People v. Tunstall, 17 Ill2d 160, 163, 164, 161 NE2d 300 (1959).

In weighing such evidence, the attendant circumstances, including the probability of adequate opportunity for a definite identification, are to be considered; a single identifying witness may be sufficient to sustain a conviction. The People v. Ikerd, 26 Ill2d 573, 579, 188 NE2d 12 (1963). The State’s case did not rest solely on circumstantial evidence. The identification evidence was substantial. It was for the court to determine its credibility, and where the evidence was conflicting, as in the case at bar, we will not substitute our judgment for that of the trial court unless the trial court’s finding was palpably contrary to the weight of the evidence, or the evidence was so unreasonable, improbable or unsatisfactory as to justify a reversal. People v. Stangeland, 76 Ill App2d 77, 81, 220 NE2d 748 (1966). Such was not the circumstance in this case, and the judgment of the trial court must be affirmed.

Judgment affirmed.

MORAN and SEIDENFELD, JJ., concur.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. William Langford, Defendant-Appellant.
    Gen. No. 69-111.
    Second District.
    May 21, 1970.
    Rehearing denied June 18,1970.

      Marco and Mannina, of Downers Grove, for appellant.
    William V. Hopf, State’s Attorney of DuPage County, of Wheaton, and Frank J. Petru, Assistant State’s Attorney, for appellee.
   MR. PRESIDING JUSTICE DAVIS

delivered the opinion of the court.

The defendant, William Langford, a DuPage County Deputy Sheriff, was indicted on six counts of burglary and theft. A jury found him guilty on Count 1 of the indictment, which charged him with burglary, and not guilty on the remaining counts. Prior to the trial, the defendant filed a motion to suppress his confessions or admissions. The court conducted a hearing on the motion, sustained the motion as to an oral confession made by the defendant on January 21, 1967, and denied the motion as to a confession made on January 20,1967.

On appeal, the defendant alleged that the trial court committed error in failing to suppress the confession of January 20, 1967, and in failing to rehear the motion to suppress when new evidence was produced at the trial; that the evidence was insufficient to prove him guilty beyond a reasonable doubt; and, finally, that the trial court improperly denied certain of the defendant’s jury instructions.

At the hearing on the motion to suppress, Chief Deputy Wayne Shimp testified that on January 20, 1967, he received a call from the defendant, requesting that he come to the defendant’s house; that when he arrived, the defendant escorted him into a bedroom of the house; that the defendant then told his wife to bring them some drinks; that a conversation ensued during which they discussed a burglary which had taken place at the Wooddale High School construction site; and that after about a half hour of conversation, the defendant broke down and cried and stated to Shimp that he didn’t know why he had done it.

From the record, it appears that Shimp had asked no questions directly designed to elicit an admission or confession before the defendant made his statement; and that prior to their conversation, Shimp had not given the defendant the requisite advice concerning his constitutional rights as set forth in Miranda v. Arizona, 384 US 436, 16 L Ed2d 694 (1966).

On cross-examination, Shimp testified that when he went to the defendant’s house he was convinced that the defendant was involved in some way in the burglary, and that he was not investigating anyone else in connection with it. In Miranda v. Arizona, at page 444 of 384 US, the Supreme Court stated:

“. . . the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incriminatian. By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. As for the procedural safeguards to be employed, . unless other fully effective means are devised to inform accused persons of their right of silence and to assure a continuous opportunity to exercise it, the following measures are required. Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of any attorney, either retained or appointed. . . .”

While it is acknowledged that the defendant was under suspicion for the burglary in question, the Miranda doctrine does not extend to the circumstances surrounding his confession of January 20. That confession was spontaneous; it was not initiated by law enforcement officers and was not the result of any direct interrogation of the defendant designed to elicit an admission or confession; and it took place in the defendant’s own home, under conditions where Shimp, although alert to obtain any available information concerning the burglary, was in no manner taking any affirmative action to elicit a confession from the defendant. The defendant had called Shimp and asked him to his home; he offered, and gave Shimp a drink; and he willingly and voluntarily, outside of the presence of his family, talked about the burglary— the matter which had prompted him to ask Shimp to come to his home. We believe that the defendant’s confession was volunteered and thus was not barred by Miranda.

The setting of the confession was not the “custodial interrogation” of a person who “has been taken into custody or otherwise deprived of his freedom of action in any significant way” to which the admonitions of Miranda are directed. Under these circumstances, Shimp was not required to give the warnings set forth in Miranda, and he was under no duty to stop the defendant in the course of making a confession. The ruling of the trial court as to the admissibility of the confession of January 20,1967, was correct.

The defendant next contends that testimony during the trial revealed that his confession of January 20, 1967, was prompted by promises of leniency if he would admit his guilt; and that, therefore, the confession was involuntary and the court should then, of its own motion, have reheard the motion to suppress.

At the trial, the defendant’s brother, Robert Langford, testified that on January 20, prior to the time that Shimp went to the defendant’s home, he (Robert Langford) had talked with Sheriff Springborn, Shimp and a Sergeant Devaney in the sheriff’s office; that he was told by the officers that some goods had been taken from a trailer in Addison, Illinois; that the owner of the goods only wanted a return of these items or their equivalent in cash, at which time he would drop the charges; and that if William Langford would confess, he would receive a short suspension, but would be returned to the force when the matter quieted down. Robert Langford further testified that he was advised that he had been called to the sheriff’s office because he was the defendant’s brother, and that the officers believed that he could help persuade the defendant to do something. Immediately after this meeting, Robert Langford met his brother, the defendant, and they discussed the matter. Robert testified that he told the defendant the nature of the conversation in the sheriff’s office and indicated that the defendant should pay for the goods rather than lose his job.

Robert Langford’s testimony at the trial was, thus, to the effect that Sheriff Springborn had made promises of leniency to him for his brother, the defendant, and that he, in turn, conveyed these promises to his brother; and that it was only because of this that the defendant confessed. The defendant makes much of the fact that the Sheriff was not called at the trial to rebut the testimony regarding promises of leniency. However, Robert Lang-ford also testified concerning a meeting which took place in February of 1967, which was attended by him, the defendant, Deputy Shimp and Sheriff Springborn. The matter of promises of leniency was discussed at this meeting, and Robert Langford testified that at this meeting Sheriff Springborn denied ever making any promises of leniency to him.

The defendant’s testimony relative to the February, 1967 meeting, was substantially the same as that of his brother. Interestingly, the defendant’s testimony of his conversation with his brother, immediately after the meeting at which the latter supposedly received the promises of leniency, was that his brother told him that what the sheriff “wanted was to clear the situation up in whatever manner was available.”

We are satisfied that the trial court was aware of its duty to and that it did consider all of the testimony relative to the purported promises of leniency. (See: The People v. Hudson, 38 Ill2d 616, 619-623 incl., 233 NE2d 403 (1968).) The question of whether a confession is voluntary is determined on the record, and is largely within the discretion of the trial court. People v. Williamson, 101 Ill App2d 199, 204, 242 NE2d 313 (1968). The trial court need not be convinced beyond a reasonable doubt as to the voluntariness of the confession, and its finding will not be disturbed by us unless contrary to the manifest weight of the evidence, or unless the court has committed an abuse of discretion. The People v. Nicholls, 42 Ill2d 91, 101, 245 NE2d 771 (1969); The People v. Hartgraves, 31 Ill2d 375, 378, 202 NE2d 33 (1964).

We have examined the entire record (see: Davis v. North Carolina, 384 US 737, 741, 742, 16 L Ed2d 895 (1966)), and we believe that the trial court’s determination as to voluntariness was not contrary to the manifest weight of the evidence. The testimony of the denial of any promise of leniency by the Sheriff at the subsequent meeting in February of 1967, coupled with the testimony of the defendant, himself, with reference to what his brother had related to him from his conversation with the sheriff, provide adequate basis for the trial court’s determination.

The defendant further contends that his guilt was not established beyond a reasonable doubt. This contention is based on the fact that, except for the confession of January 20, 1967, the evidence against him was circumstantial. However, we concur with the trial court in its holding that the confession was admissible; and based on this confession and circumstantial evidence, with which the record is replete, we cannot say the finding of a jury was contrary to the manifest weight of the evidence. The defendant’s citations refer to cases where the only evidence of the defendant’s guilt was circumstantial and they are not applicable. Under these circumstances, we will not substitute our judgment for that of the jury. The People v. Nicholls, supra, 95.

Finally, the defendant contends that the court erred in refusing to give his tendered instructions, Nos. 4, 7 and 8. He concedes that these instructions are applicable only where all of the evidence is circumstantial. While that may be the defendant’s “theory” of the case, we have held that the oral confession was properly admitted into evidence by the trial court. In the light of this holding, all of the evidence was not circumstantial, and it would have been improper for the trial court to give the tendered instructions.

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

Judgment affirmed.

MORAN and SEIDBNFELD, JJ., concur.


text:
    The Aurora Sanitary District, a Municipal Corporation, Plaintiff-Appellee, v. Randwest Corporation and Newmark Builders, Inc., Defendants-Appellants.
    Gen. No. 69-145.
    Second District.
    May 21, 1970.

      Puklin, Nelson and Dunn, of Aurora, for appellants;
    William H. Wake, of Aurora, for appellee.
   MR. JUSTICE SEIDENFELD

delivered the opinion of the court.

The Aurora Sanitary District, plaintiff, filed a complaint demanding certain connection fees from the defendant Randwest Corporation, and subsequently filed a similar separate complaint against defendant New-Mark Builders, Inc. in connection with its subdivision known as Heritage Green. The cases were consolidated, and an amended complaint filed against the defendant New-Mark Builders, Inc., demanding connection charges for a subdivision knovm as Beau Ridge. Motions for summary judgment supported by affidavits and depositions were filed by both plaintiff and defendants. This appeal is from a judgment order granting plaintiff’s motion for summary judgment and dismissing the defendants’ motions.

Both defendants challenge the validity of the ordinance of the sanitary district under which the charges were levied. Defendant New-Mark Builders also raises an issue on the pleadings in the denial of its defense based upon the Statute of Limitations.

There are no disputed questions of fact. The Aurora Sanitary District was organized under an act passed in 1917 and which provided, as material at the time the questioned connection fee was imposed:

a
Every such sanitary district shall proceed as rapidly as is reasonably possible to provide sewers and a plant or plants for the treatment and purification of its sewage, which plant or plants shall be of suitable kind and sufficient capacity to properly treat and purify such sewage so as to conduce to the preservation of the public health, comfort and convenience and to render said sewage harmless, insofar as is reasonably possible to animal, fish and plant life. . . .” (Ill Rev Stats 1957, c 42, § 306.)

The district encompasses an area of approximately 35 square miles and collects and treats sewage for a population of approximately 87,000 persons.

In 1931 the district passed its Ordinance No. 38, regulating connections with the use of its sewers. The ordinance requires that a permit be obtained from the sanitary district for any connections being made to a “District Sewer,” which is defined:

“(c) ‘District Sewer’ shall mean any sewer constructed, maintained and/or operated by The Aurora Sanitary District, including any and all manholes, intercepting chambers or other appurtenances connected therewith.
tt 99

On March 7th, 1958 the district passed its Ordinance No. 204, which required payment of a connection fee in certain instances before any permit required under its Ordinance No. 38 will be issued. The ordinance divided the district into two geographic areas designated as Class One and Class Two. The ordinance provided that before a connection permit for connection of buildings located in Class Two will be issued a connection fee of $160 for each single-family unit must first be paid to the plaintiff. It is expressly provided in the ordinance that no connection fee is required for the connection of buildings located in the Class One area. However, an inspection fee of $15 per single-family unit is required for connections made in the Class One area. Defendants’ property was within the Class Two area.

The corporate boundaries of the City of Aurora are located within the corporate limits of the Aurora Sanitary District. The city has a sewer system of its own.

The defendants are engaged in the development of dwelling units in the City of Aurora. The defendant New-Mark Builders built 486 single-family homes, and the defendant Randwest built 37 multiple-family units, containing 232 single-family units, during the time material here.

Both defendant corporations are taxpayers of the plaintiff district.

Subsequent to the passage of plaintiff’s Ordinance No. 204, both defendants connected numerous single-family units to the sewer system of the City of Aurora. The sewers to which the connections were made were installed and paid for by the defendants and were then accepted by, and became the property of, the City of Aurora. The sewers have since been maintained exclusively by the City.

The sewer system of the City is tributary to the Aurora Sanitary District sewer system and that part of the City sewer system to which the defendants connected their buildings joins the Sanitary District sewer system by connection to an interceptor constructed by the plaintiff in 1931 or 1932. The plaintiff has provided no new connection, interceptor or extension into which the sewers to which the defendants connected their buildings flow or connect.

On September 15th, 1964, the plaintiff filed its complaint against the defendant, Randwest, demanding payment of connection fees up to the date of the filing. The initial complaint against New-Mark Builders was filed on September 22nd, 1964, for the connections in the Heritage Green Subdivision. Thereafter amended complaints were filed by plaintiff, with leave of court, against each of the defendants adding a prayer for a permanent injunction.

A temporary writ of injunction was issued against defendants on December 29th, 1964 restraining further connections without the obtaining of a permit and the paying of a fee. Since the issuance of the writ numerous sewer connections have been made by the defendants and the fees paid under protest.

On November 16th, 1966, plaintiff filed, with leave of court, a Count II of its amended complaint against the defendant New-Mark seeking judgment for connection fees for sewer connections made by the defendant in its Beau Ridge Subdivision.

Defendants contend that plaintiff’s Ordinances No. 38 and No. 204, by their terms, do not apply to defendants’ connections, but may only apply to sewers constructed and/or operated by the plaintiff; therefore, plaintiff was without legislative authority to exercise jurisdiction over sewer connections made to a sewer system of the City of Aurora. Additionally, defendants argue the absence of legislative authority to enable the district to enact either Ordinance No. 38 or Ordinance No. 204 if those ordinances are construed to apply to connections to city sewers. Defendants concede the legislative authority in the sanitary district to pass an ordinance to make charges for connections, although within a city, by an amendment to Chapter 42, supra, which was passed in 1959 and added the provision in Section 306, which granted the power “to collect a fair and reasonable charge for connection to its system in addition to those charges covered by normal taxes, for the construction, expansion and extension of the works of the system, the charge to be assessed against new or additional users of the system and to be known as a connection charge.” They contend, however, that the enabling legislation cannot sustain the previously passed Ordinance 204. (Defendants also concede that the plaintiff, by passage of an amendment to its Ordinance 204, which became effective on September 5th, 1967, thereafter became authorized to charge the fees in question, from that time forward.)

Plaintiff claims that its Ordinance 204 was adjudicated as valid, under the authority of chapter 42, section 306, supra, by a decision of the Illinois Supreme Court with reference to the same Ordinance 204, in the case of Hartman v. Aurora Sanitary Dist., 23 Ill2d 109, 177 NE2d 214 (1961); but that in addition to section 306, there is implied authority to support the Sanitary District connection charges in section 319.7 of chapter 42 which was passed in 1941 prior to the enactment of Ordinance 204. (Ill Rev Stats 1967, c 42, § 319.7.) That section provides in general terms that the district has the power by ordinance “to charge the inhabitants thereof for the use and service of its sewerage system and to establish charges or rates for that purpose.” The same provision also gives the Sanitary District the authority to make, enact, and enforce all needful rules, regulations, and ordinances for the improvement, care, and protection of its sewerage system, which may be conducive to the preservation of the public health, comfort, and convenience.

We first consider the impact of the decision in Hartman, supra, which both plaintiff and defendants have cited, but with varied interpretation.

Plaintiff suggests that the court in Hartman specifically upheld the power of the Aurora Sanitary District to pass Ordinance 204, based on the general legislative authority given under chapter 42, section 306, supra. Defendants argue that Hartman, who was seeking to connect directly to the Sanitary District sewers, did not raise the issue, here raised, that there was no legislative authority to pass the ordinance, but specifically attacked the ordinance on the basis that it imposed a special nonuniform tax in violation of constitutional provisions; and that the court found the connection fee to be a “service charge” rather than a tax in that particular situation. Reference is made to the following language (pages 115,116) of the opinion:

“The pattern created by the present ordinance is not complex. All property owners pay an annual tax for the operation of the sanitary system. New additions to the community, however, create new problems of public health which must be met either by an extension of the present system or the installation of private septic systems. The present statute merely permits the District to offer to residents of a new area a convenient and economical way of handling the sanitation problem they have created. There is nothing mandatory about either the statute or the ordinance. Residents of new areas are merely told that the District will treat all sewage brought into our system for the annual uniform tax. If, however, you wish the District to go out and provide new connections and interceptors to care for your problems, you must pay a reasonable charge for this service.”

The well reasoned dissenting opinion of Justice Schaefer, concurred in by Justice Hershey, pointed out that the district was relying on the amendment to section 306 which was not passed until 1959. The dissent observed that the amendment could not relate to an ordinance passed prior to the granting of this power; and also concluded that the statute, by its terms, “looks forward toward ‘construction, expansion and extension/ while the ordinance (No. 204) looks backward in an effort to recoup, from a selected group of new users, costs that were incurred in bygone years.” (Page 119.)

Following the law of the case as expressed in the majority opinion, we believe that Hartman is not controlling here. There the validity of Ordinance 204 was presumed in the absence of a direct attack upon it and was upheld as a service charge against constitutional objections that it was a nonuniform tax.

In Hartman the Supreme Court relied principally upon Spalding v. City of Granite City, 415 Ill 274, 113 NE2d 567 (1953) as the basis for its opinion. That case involved a method of financing needed extensions of the sanitary system by means of a service or connection charge rather than by a general tax. The court noted on page 281:

“It is only proper that the property owners of the other areas of Granite City should not pay for a sewerage extension which only the Nameoki area can use, even though, as a matter of public health, the city could charge all users of the system for the cost of an extension in any area of the city. It is also proper that the burden of the extension should be borne by the Nameoki area property owners who elect to have the benefit of use of the existing sewer for which they paid nothing in taxes. It is a reasonable classification to require the property owners and/or residents of the area to pay the cost of the construction of the sewer system by which sewage would be carried from the locality into the existing sewer system.”

In the case before us, plaintiff does not allege and show any special service to defendants. Each of the defendants receives no greater benefit from the plaintiff than is afforded to persons in the Class One area in which no connection fee is charged. There is no evidence of any new interceptors or connections made to care for sewage problems created by defendants. The improvements made in tanks, filters, and chlorination by the sanitary district between 1960 or 1961 and 1965 or 1966 were financed by general obligation bonds which were paid by the defendants along with other taxpayers in their general tax bills.

We think the language of the majority opinion of Hartman also makes it apparent that the court was dealing only with the specific facts before it: a direct connection to the sanitary district sewers. Such a situation does not raise or decide the objection in the instant case to the Sanitary District’s legislative attempt to impose a connection fee for connecting to a city sewer prior to the appropriate enabling act providing for such jurisdiction.

The 1959 amendment to Section 306 (Ill Rev Stats 1959, c 42, § 306) cannot be said to have validated the prior Ordinance No. 204. An ordinance which is void under a statute existing at the time of its enactment is not validated by amendment of the statute, particularly where the legislature does not specifically undertake to do so. The People v. Chicago & E. I. Ry. Co., 365 Ill 202, 207, 6 NE2d 119 (1937); The People v. Thompson, 377 Ill 104, 112, 35 NE2d 355 (1941); 37 Am Jur, § 168, page 798; Hartman v. Aurora Sanitary Dist., supra, at page 117.

We cannot agree with plaintiff’s argument that section 319.7 of chapter 42, supra, (which was passed in 1941) authorized the passage of Ordinance 204 in 1958. Prior to the 1959 amendment of section 306 which specifically gave the sanitary districts power to enact ordinances imposing connection fees to its sewers, the statute merely provided for collection of charges and rates for the use of the sanitary district sewage system, as such system was defined in the statute. Séction 319.7 cannot be said to have authorized by implication the imposition of nonuniform and unequal connection charges for a connection to a sewer which was not even operated by the Sanitary District. In fact, the legislation providing a method for obtaining control of the operation of tributary municipal sewers, other than by purchase or contract, was not enacted until 1963. (Ill Rev Stats 1963, c 42, §306.2.)

We are of the opinion that until the adoption by plaintiff of its comprehensive amendment to Ordinance 204 in 1967, pursuant to the enabling amendments of chapter 42 in 1959 and 1963 (section 306 and section 306.2 respectively), plaintiff had no authority to charge for connections made to the City of Aurora sewer system.

We believe that this conclusion is fortified by the express language of plaintiff’s Ordinances No. 38 and No. 204 as originally enacted, both of which refer to “its sewers” and connections to a “sewer constructed, maintained and/or operated” by the Aurora Sanitary District.

We also find support for our conclusions in the fact that, aside from the limited enabling legislation passed by the State in 1963, sanitary districts had no express or implied power to summarily take jurisdiction over sewers constructed in and under the control of a city or village although within the sanitary district boundaries. See Judge v. Bergman, 258 Ill 246, 254, 101 NE 574 (1913); City of Chicago v. Green, 238 Ill 258, 274, 87 NE 417 (1909). The various statutory provisions authorizing a sanitary district to enter into private property or city rights of way by condemnation in order to effectuate the purposes of the district are, of course, not involved here.

We believe that the trial court correctly ruled that the amended complaint grew out of the same transaction or occurrence alleged in the original complaint, namely the allegation that the defendant had made and was continuing to make connections to sanitary sewers within the territory of the Aurora Sanitary District without complying with its ordinances and that, therefore, the amended complaint related back in point of time to the filing of the original complaint under the provisions of Ill Rev Stats 1967, c 110, § 46-2. However, in the view we have taken of the case this does not appear to be material.

We conclude that the trial court erred in granting summary judgment to plaintiff on this record and remand the consolidated cases with directions to determine the total amount of money paid by defendants to plaintiff pursuant to the temporary injunction issued by the court below, for sewer connections made by defendants prior to September 5, 1967, and with directions to enter judgment reimbursing these payments to the defendants.

Reversed and remanded with directions.

ABRAHAMSON and MORAN, JJ., concur.


author: MR. JUSTICE ABRAHAMSON

text:
    State Farm Mutual Automobile Insurance Company, an Illinois Corporation, Plaintiff-Appellee, v. Esther Berke, a/k/a Tess Berke, Dr. A. N. Berke, John Teresi Chevrolet-Oldsmobile, Inc., an Illinois Corporation, Defendants-Appellants.
    Gen. No. 69-192.
    Second District.
    May 21, 1970.

      Philip M. Bloom, Frank, Bloom, Stern & Starr, of Chicago, for appellants.
    William E. Hartnett, Hartnett, Corcoran and Pease, of Waukegan, for appellee.
   MR. JUSTICE ABRAHAMSON

delivered the opinion of the court.

State Farm Mutual Automobile Insurance Company-issued a policy of automobile insurance covering liability insurance for personal injury and property damage to Dr. A. N. Berke as Named Insured and his wife, Esther Berke, as Additional Insured, for a 1964 Pontiac automobile owned by Dr. Berke. The provided coverage was extended to the use of a nonowned automobile by “ (a) the first person named in the declaration or, (b) if residents of the same household, his spouse or the relatives of either, and (c) Any other person or organization legally responsible for the use by such named insured, spouse or relative of an automobile not owned or hired by such other person.”

A nonowned automobile was defined in the policy as follows:

“NonOwned Automobile—means an automobile or trailer not
“(i) owned by,
“ (ii) registered in the name of, or
“(iii) furnished or available for the frequent or regular use of the named insured, his spouse, or any relative of either residing in the same household, other than a temporary substitute automobile.”

On September 7, 1966, Esther Berke was involved in an accident while driving a 1966 Oldsmobile in which a pedestrian and a motorcyclist were seriously injured. State Farm brought a declaratory judgment action that sought a determination of its obligations under the policy for the accident. The trial court found that the 1966 Oldsmobile was not a nonowned automobile as defined by the policy and that State Farm had no liability thereunder. The Berkes and John Teresi Chevrolet-Oldsmobile, Inc. appeal.

The record discloses that Dr. Berke had been ill and his medical practice was temporarily interrupted. However, in July, 1966, he regained his health and resumed his practice. At that time, he owned the 1964 Pontiac and needed a second car for use in his profession. In early July, Dr. Berke contacted John Teresi, the president of John Teresi Chevrolet-Oldsmobile, Inc., an automobile dealership, in regard to a rental of an additional automobile. Teresi informed him that rental services were available, and on July 11 or 12, Dr. Berke visited the dealer and was referred to a Mr. St. Pierre.

Dr. Berke signed a rental agreement with Lakes Leasing, a separate corporation but located at the same address as the dealership and apparently owned by the same parties, for a 1967 Oldsmobile “98.” St. Pierre computed the monthly rental which, at the specific request of Dr. Berke, was to include insurance coverage, in the amounts of $100,000/$300,000 for personal injuries, at $165. Since 1967 models were not available, it was agreed that Dr. Berke would use a 1966 Oldsmobile demonstrator until the new automobiles were delivered. Dr. Berke took the car and used it continuously until the date of the accident.

At the end of July, Dr. Berke received a statement from Lakes Leasing for $330 for the first and last months’ rental which he paid on August 6. Both John Teresi and St. Pierre were insurance brokers and agreed that the rental contract was to include insurance coverage. Although Dr. Berke explained that he needed the automobile for his medical practice, no restrictions on the use were made or even discussed. Berke also made a September payment and on November 1 was furnished a new automobile which he continued to rent until the lease was cancelled in September, 1968.

On September 7, 1966, Dr. Berke drove the 1966 Oldsmobile from his home in Antioch to a hospital in Waukegan. His wife accompanied him and took the car from the hospital for a shopping trip in Waukegan after which she was to return to the hospital to pick up her husband. While on the trip, Mrs. Berke had the accident that gave rise to a multiplicity of lawsuits. It developed that the insurance carried by Lakes Leasing for rented automobiles was not applicable since the 1966 Oldsmobile was not owned by that corporation but was a demonstrator consigned to John Teresi Chevrolet. The garage policy that covered the latter corporation was likewise not involved since that policy specifically excluded rented automobiles.

The trial court concluded that the State Farm policy did not extend coverage since the 1966 Oldsmobile was furnished for the regular use of Dr. Berke and was available for the frequent and regular use of Esther Berke and was not, therefore, a nonowned automobile. The court further ordered that John Teresi Chevrolet-Oldsmobile, Inc. indemnify and hold harmless the Berkes against all claims arising from the accident and to assume the defense of those claims within the limits discussed by St. Pierre and the doctor.

The appellants contend that State Farm failed to establish by a preponderance of the evidence that the 1966 Oldsmobile was not a nonowned automobile as defined by the policy and that the finding of the trial court that it was “available for the frequent and regular use” of Esther Berke was against the manifest weight of the evidence.

Dr. Berke could not recall any specific occasion prior to September 7 that his wife used the Oldsmobile but he did testify that “she might have driven it.” Esther Berke testified that the car was used principally by her husband in his practice but that she did drive it on two or three occasions prior to the accident. Since Dr. Berke conducted his practice from his home and there was no evidence of any restrictions placed on the use of the Oldsmobile by Esther Berke, the conclusion of the trial court that it was available for her frequent and regular use was not against the manifest weight of the evidence.

The “nonowned automobile” and “drive other cars” provisions of automobile liability insurance policies have been a fruitful field for litigation. The cases of Rodenkirk v. State Farm Mut. Automobile Ins. Co., 325 Ill App 421, 60 NE2d 269 (1945) and Schoenknecht v. Prairie State Farmers Ins. Ass’n, 27 Ill App2d 83, 169 NE2d 148 (1960) remain as the leading Illinois cases on the point and an extensive discussion is contained in Volume 86 of the American Law Reports (Second Series) at page 925 and forward.

In the Rodenkirk case, the plaintiff had a State Farm policy for his own Chevrolet that included coverage for his use of “other” automobiles unless the other automobile was, among other exceptions, “furnished for (his) regular use.” John J. Meyer was engaged to Rodenkirk’s daughter and when he was inducted into the service he gave to them his Dodge automobile for their use while he was away. Meyer testified that Rodenkirk was to maintain the car and use it “as he saw fit.” Rodenkirk was involved in an accident with Meyer’s car and after judgment had been entered against him brought a garnishment proceeding against State Farm under the “other automobile” coverage.

The court held that Meyer’s. car was furnished to Rodenkirk for his regular use and that there could be no recovery under the terms of the policy.

In Schoenknecht, the plaintiff had a policy on his Buick automobile that included liability coverage for other automobiles except those furnished for his regular use. Schoenknecht’s employer furnished a Chevrolet for his use during the working day that was to be returned each night to the shop. On one occasion, he completed his work but instead of returning the car, proceeded to visit friends and, many hours later, was involved in an accident. The court held that his own policy extended coverage to him since at the time of the accident the Chevrolet was not furnished for his regular use but was, instead, on unauthorized use.

The distinction between the cases is obvious. In Sehoenkneeht, and the cases cited by the appellants from other jurisdictions, the driver’s use of the automobile was, in one sense or the other, restricted. The automobiles were not either furnished or available for regular use to the drivers but were available only on occasions determined by some other condition such as obtaining specific permission from the owner or in the course of employment. As pointed out in Rodenkirk, if the automobile is available for regular use it is not determinative how often it is in fact used.

As an abstract principle of law, we agree with the further contention of the appellants that ambiguous clauses in a policy of insurance should be construed most favorably to the insured. Marshall v. Metropolitan Life Ins. Co., 337 Ill App 498, 509, 86 NE2d 262. However, language in the policy will not be perverted to create an ambiguity where none exists. Lakatos v. Prudence Mut. Cas. Co., 113 Ill App2d 310, 316, 252 NE2d 123; O’Daniell v. Missouri Ins. Co., 24 Ill App2d 10, 14, 164 NE2d 78. We find no ambiguity in the pertinent sections of the policy before us and therefore conclude that the judgment of the trial court is correct and should be affirmed.

Judgment affirmed.

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


author: MORAN, P. J.

text:
    George Westhoff, Pauline M. Whelan and Louise M. Westhoff, Plaintiffs-Appellees, v. Commonfields of Cahokia Public Water District.
    Gen. No. 69-60.
    Fifth District.
    May 22, 1970.
    Karns, Starnes, Nester & Stegmeyer, of Belleville, for appellant.
    Walker & Williams, of East St. Louis, for appellees.
   MORAN, P. J.

Plaintiffs advanced the sum of $4,625.53 on November 14,1959, to the defendant for construction of water lines on property in the defendant’s water district and subdivided by plaintiffs. Plaintiffs claimed in the trial court that this money was advanced to the defendant with the understanding that the defendant would return the money within a reasonable time. After a non jury trial, the court entered judgment in favor of the plaintiffs and against the defendant in the sum of $4,625.53. Defendant appeals.

Defendant contends there was insufficient evidence in the trial court to prove the existence of a contract which obligated the defendant to return the money advanced by the plaintiffs.

In July of 1959 George Westhoff contacted Rudy De Bourge, the defendant’s manager at that time, and told him he needed water for a subdivision he owned. The manager indicated that he would advise the defendant Board of the request and determine costs and specifications. Westhoff’s next contact with the water district was in August 1959, when he was told that he would have to pay $2,960. He delivered a check for that amount to the water district but it was returned because the size of the line had been increased and because the district’s engineer had advised against a dead-end extension of service; the proposed line was changed from a dead end to an L-shaped connection. Westhoff disagreed with the increased size of the line and questioned the use of six-inch pipes rather than four-inch pipes.

Defendant then notified George Westhoff that it required $4,625.53 for installation of the service. Westhoff issued a certified check in that amount, dated November 14,1959, to the water district. Prior to delivering the check, Westhoff placed an endorsement on the back of the check which contained the following language: “By endorsement of this check a lien is taken against endorsers for face amount of check payable to George Westhoff of 19 East Gooding St., Millstadt, Ill.” The check was thereafter endorsed by defendant water district and countersigned by Rudy DeBourge, its manager.

Plaintiff George Westhoff testified he expected to be repaid the money he advanced within a year or two years. Rudy DeBourge told him at the August meeting when plaintiff presented the check for $2,969 that he would get his money back. He testified, and the minutes of the defendant indicate, that in April of 1961 he was advised by defendant that he would receive the reimbursement if he signed a written agreement with the defendant. Plaintiff decided the agreement was too ambiguous and refused to sign it.

Joseph LiVigni, manager of the water district, testified that the minutes of the water district’s meeting of April 12,1961 were as follows:

“A visitor named George Westhoff of Loretta Place Subdivision asked the Board about getting back the money he had spent to install water lines in this subdivision. ... A lengthy discussion between Mr. Westhoff and the Board followed concerning his reimbursement for the money he paid out. He was promised orally that he would be compensated but had never signed a contract with the company and had never been offered a contract. Mr. Westhoff questioned the cost of the installation and thought perhaps the company had overcharged him about Two Thousand Dollars. Mr. Johnston (I might indicate that Mr. David Johnston is the District’s Engineer) explained that the Two Thousand Dollars was for a tie in with the other line which Mr. Westhoff insisted upon at the time of the installation. Mr. Westhoff was given a standard subdivider’s contract to sign and he said he would sign it only after he had studied it to determine his rights. Mr. Pessin told him as soon as he signed the contract he would start sharing in the profits (I might indicate, Your Honor, Mr. Pessin was the District’s attorney at the time). Mr. Flynn said in his opinion the contract should be back-dated from the time the Board first started making contracts.”

Since 1962, plaintiff has been listed in the account books of defendant under the classification “Advances in Aid of Construction” in the amount of $4,625.53. According to the testimony of one of defendant’s auditors, “Advances in Aid of Construction” is a liability. Jack Mc-Keon, an employee of the defendant’s auditors, testified that the classification “Advanced in Aid of Construction” means that this money had been advanced to the defendant to help construct this water line. In 1960, plaintiff’s name was not listed but there was a fixed liability, “Advances in Aid of Construction,” in the amount of $12,093.14. Thereafter, plaintiff’s name appeared under said liability heading in the amount of his draft advance.

There was evidence from which the court could find that both plaintiffs and defendant were in agreement that plaintiff would be repaid for his advancement. He was advised by the manager of the water district that he would receive his money back when plaintiff issued his first check. Nothing was said to plaintiff by defendant that the same would not be true as far as the second check was concerned. The minutes of the water district board meeting in April of 1961 indicated that the members of the board believed plaintiff should be compensated for his advancement. Since 1962 plaintiff has been listed in the account books of the district under the classification “Advances in Aid of Construction.” There was testimony that this classification means money advanced to defendant to construct water lines. The endorsement on plaintiff’s check amounted to an offer to advance construction costs for the water lines with the understanding that he would get his money back. This offer was accepted by defendant when it endorsed and deposited plaintiff’s check.

In our opinion, there was ample evidence to establish a contractual relationship between the parties obligating the defendant to repay the advance in aid of construction made by plaintiff. The weight to be given the testimony is a matter to be determined by the trial judge, sitting without a jury, and his findings will not be disturbed unless manifestly erroneous. People ex rel. Penrod v. Chicago & N. W. Ry. Co., 17 Ill2d 307, 161 NE2d 120. We cannot say that the court’s findings here were against the manifest weight of the evidence.

For the foregoing reasons the judgment of the trial court of St. Clair County is affirmed.

Judgment affirmed.

GOLDENHERSH and EBERSPACHER, JJ., concur.


text:
    In the Matter of the Petition of the City of Waukegan, Lake County, Illinois, To Levy a Special Assessment for a Local Improvement To Be Known as City of Waukegan Special Assessment No. 1046, Petitioner-Appellee, v. Joseph J. Drobnick, and the First National Bank of Waukegan, as Trustee Under Trust No. 616, Objectors-Appellants.
    Gen. No. 70-92.
    Second District.
    May 28, 1970.

      Mark Drobnick, of Waukegan, for appellants.
    Runyard, Behanna, Conzelman, Schultz & O’Meara, of Waukegan, for appellee.
   MR. PRESIDING JUSTICE DAVIS

delivered the opinion of the court.

The City of Waukegan filed a petition for Special Assessment Project No. 1046, pursuant to a duly adopted ordinance recommended by the Board of Local Improvements, gave all notices, and conducted all hearings required by law. The Board approved the estimated costs of the improvement and the petition accurately described the tracts and parcels of land which may be taken or damaged by the improvement. The petition prayed that, pursuant to statute, commissioners be appointed to ascertain the just compensation to be paid for the property taken or damaged for the improvement, to ascertain the property which will be benefited by the improvement, the amount of the benefit, and to levy a Special Assessment to pay the cost of the improvement and for the property taken or damaged.

Plans and specifications for the improvement were filed by the petitioner on January 12, 1970, and an order authorizing the levy of a special assessment, appointing commissioners and directing that report of property taken or damaged and an assessment roll be filed, was entered January 13, 1970. The commissioners filed their respective oaths, and on January 23, 1970, filed their Report of Property Taken or Damaged and of Property Assessed; and on that date, the court entered an order setting this report for hearing on February 18, 1970. Summons were issued pursuant to this order, returnable on February 18, 1970, at 10:00 a. m., and were duly served.

The commissioners filed their affidavit of mailing notice to each person, firm or corporation paying taxes during the last preceding year on the property shown on the assessment roll and report, all as required by statute.

Thereafter, on February 18,1970, an order of confirmation was entered in this proceeding, and on this date, subsequent to the entry of this order, American National Bank & Trust Company of Waukegan, Trust No. 109, by Richard J. Drew, its attorney, filed objections to the order of confirmation, which recited that there was no necessity for the proposed improvement, that the petitioner made no bona fide offer or tender of compensation in writing for the easement described in the petition, and that the value set forth in the report for the permanent easement is grossly inadequate, and the ordinance unreasonable and void.

Similar objections were filed by Joseph J. Drobnick and the First National Bank of Waukegan, as Trustee under Trust No. 616.

Counsel for the City filed its Notice of Motion and Motion to Dismiss the Objections, and set said objections for hearing on February 24, 1970. The motion recited that none of the property of any of the objectors was proposed to be assessed in this proceeding; that none of the objectors were persons interested in any real estate to be affected by any assessment within the meaning of section 9-2-55 of chapter 24 of Ill Rev Stats, and that the objectors have no standing to file an objection in the proceeding since none of their property is being taken, affected or assessed by this proceeding.

On February 24, 1970, the court ordered that the American National Bank and Trust Company of Waukegan, as Trustee under Trust No. 109, be given leave to withdraw its objections, and that the objections of Joseph J. Drobnick and the First National Bank of Waukegan, as Trustee under Trust No. 616, be dismissed. The order recited, among other things, that the court had jurisdiction of the parties and the subject matter; that none of the objectors herein Own any property proposed to be assessed in this proceeding; and that none of the objectors are persons interested in any real estate to be affected by any assessment within the meaning of the statute. The order also ratified and confirmed the proceeding in all respects.

The First National Bank of Waukegan, as Trustee under Trust No. 616, and Joseph J. Drobnick, have appealed from this order and the City has filed its notice of election to proceed notwithstanding the appeal.

No testimony was offered in this proceeding, and the record filed herein consists of the pleadings and instruments filed herein; and a subsequent order entered herein recited that there is no just reason to delay the filing of this appeal.

The City has filed in this court a motion to dismiss this appeal in that the ób j ectors-appellants are not parties to this proceeding and are neither interested in any real estate to be affected by the assessment, nor are they owners or parties interested in any land taken, damaged or assessed herein. Objections to this motion were filed by the obj ectors-appellants, which asserted that the Local Improvements Act has been violated, and specific alleged violations are listed. Many matters debars the record are referred to in these objections.

We set this motion and the objections thereto for oral argument pursuant to Supreme Court Rule 361 (b) (2), (Ill Rev Stats, c 110A, par 361(b) (2) (1969)).

The pertinent statutory provisions are:

(A) Section 9-2-55, c 24, Ill Rev Stats 1969:

“OBJECTIONS. Any person interested in any real estate to be affected by an assessment, may appear and file objections to the report, by the time mentioned in the specified notice, or in case of incomplete notice then as specified in the last preceding section, or within such further time as the court may allow. The court may make such order in regard to the time of filing these objections as may be made in cases at law in regard to filing pleas, but no prior rule need be taken therefor unless directed by the court.
“As to all lots, blocks, tracts, and parcels of land, to the assessment of which objections are not filed within the specified time, or such other time as may be ordered by the court, default may be entered, and the assessment may be confirmed by the court, notwithstanding the fact that objections may be pending and undisposed of as to other property.” (Emphasis Ours.)

(B) Sections 9-2-140, c 24, Ill Rev Stats 1969:

“APPEALS. Appeals from final judgments or orders of any court made in the proceedings provided for by this Division 2, may be taken in the manner provided in other civil cases, by the municipality or by any of the owners or parties interested in land taken, damaged, or assessed therein. However, no appeal may be taken after 30 days from the entry of the final judgment or order. Such an appeal may be prosecuted jointly, and upon a joint bond, or severally, and upon several bonds, as may be specified in the order fixing the amount and terms of such bonds.” (Emphasis Ours.)

This local improvement consists of the construction of water mains to serve a newly annexed area on the westerly limits of the City of Waukegan where Lakehurst Shopping Center, a large development, is under construction.

In re Petition of Village of Long Grove, 104 Ill App2d 421, 244 NE2d 218 (1969), the objectors did not own any property assessed by the special assessment proceeding, but their land was contiguous to such land upon which the Village was constructing a sewage treatment plant. The objectors alleged that their land would be damaged even though they were not assessed and that their property was thus affected by the proceeding, pursuant to section 9-2-55 of chapter 24, Ill Rev Stats 1969. At page 424 we stated that standing to object is based upon ownership of property assessed, and cited City of Chicago v. Ridge Park Dist., 317 Ill 123, 125, 147 NE 803 (1925), as authority for this assertion.

The question also arose in Gibler v. City of Mattoon, 167 Ill 18, 47 NE 319 (1897), where the court held that persons who are not shown by the record to be the owners of any property which was assessed had no standing to object in the proceeding. At pages 19 and 20, the court stated:

“The judgment is a judgment in rem, and not against persons, and it is a several judgment as against each tract or parcel of land for the amount shown by the judgment to have been finally assessed against it. No property owner or other person can assign as error any act of the court in rendering judgment, or in any step of the proceedings culminating in final judgment, against any tract or parcel of land in which he has no interest,—and this is upon the principle often announced, that a party cannot assign for error that which concerns another but which does not injuriously affect him.”

Thus, both Illinois case law and statutes reflect that objectors to a special assessment proceeding must be interested in the real estate to be affected by the proceeding, and that only the municipality or an owner or party interested in the land taken, damaged or assessed therein may appeal from final judgments or orders in such proceedings.

For the foregoing reasons, the appeal herein is dismissed.

Appeal dismissed.

ABRAHAMSON and SEIDENFELD, JJ., concur.


author: PER CURIAM.

text:
    The People ex rel. Carolyn K. Strand, Plaintiff-Appellee, v. Paul H. Harnetiaux and Charleen Harnetiaux, Defendants-Appellants.
    Gen. No. 69-102.
    Fifth District.
    May 25, 1970.
    Meyer & Meyer, of Greenville, for appellants.
    Burnside and Dees, of Vandalia, for appellee.
   PER CURIAM.

This action arose as a consequence of a petition for writ of habeas corpus filed by Carolyn K. Strand seeking custody of her minor child, who is in the possession of defendants. An answer to the petition was filed on behalf of defendants, and thereafter plaintiff filed her motion for summary judgment based upon the allegations of the petition for writ of habeas corpus and answer thereto, an answer to the motion for summary judgment was filed by defendants and after oral argument and submission of written briefs, the motion for summary judgment was allowed and an order entered providing “that Petitioner be and is hereby granted custody of her child, Mark Allan Harnetiaux, as prayed in the Petition for Habeas Corpus.” This appeal is from that order.

Neither respondents nor petitioner has questioned the jurisdiction of this Court to review an order entered in a habeas corpus proceeding. Determination of that issue is a prerequisite to our taking Jurisdiction. Supreme Court Rule302(a) provides:

“Appeals from final judgments of circuit courts shall be taken directly to the Supreme Court ... (3) in cases of habeas corpus.”

That rule has been most recently interpreted in Kniznik v. Quick, 107 Ill App2d 88, 246 NE2d 43. (See also Ill Const, art VI, § 5.)

We, therefore, conclude that this Court is without jurisdiction to hear the appeal of this cause and transfer it to the Supreme Court pursuant to Rule 365.

Appeal transferred to the Illinois Supreme Court.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Robert E. Henderson, Defendant-Appellant.
    Gen. No. 69-79. (Abstract of Decision.)
    Fifth District.
    June 2, 1970.
    James S. Parker and Richard H. Brummer, of Effingham, for appellant; Frank G. Schniederjon, State’s Attorney, of Effingham, for appellee.
   Opinion by JUSTICE EBERSPACHER. Not to be published in full.