author: MR. JUSTICE McCORMICK

text:
    Samuel T. Cohen, Plaintiff-Appellee, v. Bernard Meyers, Louis Y. El Chonen, E. Meyer Finkel, Jacob D. Broide, Dr. Paul L. Fraiberg, Dr. Moshe Lev, Sara Meyers Weinschneider, Benjamin S. Oleinick, Ruth Epstein Belilos, Meyers Torah Foundation, Inc., and Manatee County Land Co., Defendants. On Appeal of Jacob D. Broide, Dr. Paul L. Fraiberg, Dr. Moshe Lev, Benjamin S. Oleinick, Louis Y. El Chonen, Bernard Meyers and Meyers Torah Foundation, Inc., Certain Defendants-Appellants.
    Gen, No. 53,741.
    First District, Second Division.
    September 30, 1969.
    Rehearing denied October 23,1969.

      Isidore Goodman, of Chicago, for appellants.
    Jacob Shamberg, of Chicago, for appellee.
   MR. JUSTICE McCORMICK

delivered the opinion of the court.

Samuel Cohen and Bernard Meyers went to Florida to find land for investment purposes. When they had found a suitable site, Meyers suggested that they bring in co-investors, and they telephoned Louis El Chonen and other interested parties, advising them that they could participate and could invite others. A particular site in Florida which El Chonen had suggested earlier was found unsuitable by Cohen and Meyers and they had taken the Manatee property instead.

Cohen testified that both he and Meyers had told all the parties contacted that there would be a 10 percent finder’s fee and a 10 percent attorney’s fee, contingent upon profits resulting from the transaction. The defendants who testified stated that the first they learned of the fees was when they read the trust agreement prepared by Cohen, who acted as the attorney for the investment group.

The following provision appeared in each of the certificates of beneficial interest:

“It is further understood and agreed however that SAMUEL T. COHEN, BERNARD MEYERS and LOUIS EL CHONEN shall jointly receive during the life of this Trust an amount equal to ten-percent (10%) of any and all profits, dividends, earnings, avails and income which shall be deducted from the pro-rata amount available for distribution to the beneficiary hereunder, executors, administrators and assigns of said Certificate of Beneficial Interest in said Certificate of Shares, for services rendered in finding the Manatee County, Florida acreage, being the principal asset of this corporation and for negotiations resulting in the purchase thereof, and for managing the affairs and business of said corporation.”

Eight investors purchased 2,800 acres of Florida land at $85 an acre, and voting trust agreements were prepared by plaintiff Cohen naming himself and defendants Meyers and El Chonen as trustees. The agreements, dated March 1, 1957, were signed by the three trustees and one was signed by each beneficiary. The trusts were all stated to be for periods of twenty years and one month.

Problems apparently developed among the trustees. Cohen had made claim to a 10 percent attorney’s fee and to one-half of the 10 percent finder’s fee. When he met with resistance from all the investors on both these claims he attempted to obtain the entire 10 percent finder’s fee for himself, excluding Meyers and El Chonen. He solicited the beneficiaries (other than Meyers and El Chonen) to enter into new agreements with him wherein they would agree to pay him 10 percent of the profits in full for his claims to finder’s and attorney’s fees, in consideration of which he would agree to protect and hold them harmless against any claim by Meyers and El Chonen for their respective shares of the finder’s fee. The agreement was submitted to the beneficiaries but was not executed by them. Plaintiff did not submit a copy to either Meyers or El Chonen because, as he stated, they “were the two against whom this document may have worked.”

Plaintiff’s original complaint of October 20, 1964, sought and obtained a decree adjudging that the voting trusts which he had prepared were void and of no force and effect, since they were contrary to the specific 10-year limitation of the relevant statute.

The cause was finally referred to a master in chancery as arbitrator and many hearings were had. The arbitrator made a written award allowing plaintiff 3% percent on 45 percent of the profits of $1,638,986.93, and charged the same to the individual shareholders other than Meyers and El Chonen. The plaintiff was allowed nothing on his claim for attorney’s fees and only 3^3 percent on his claim to one-half of the 10 percent finder’s fee. The arbitrator also denied the claim of Meyers and El Chonen against the plaintiff.

Defendants’ objections to the award were overruled and the court entered the decree enforcing the award. It is from that decree that defendants appeal.

Among other things the arbitration agreement provides :

“All differences, controversies, claims, demands, complaints, counter-complaints and causes of action now pending or existing between any of the parties hereto, as set forth in the pleadings filed in said cause, and also all other disputes and differences that may hereafter arise between such parties relating to the subject matter of said litigation, are hereby referred for determination and award by said Master, who shall award, order, judge and determine of and concerning the same, .... The award of said Master shall be final and binding upon each of the parties hereto and their respective heirs, executors, administrators, successors and assigns, and shall in all respects be well and faithfully kept and observed by each of the parties hereto.
• • •
“All parties waive any and all right to seek any review by any court of any final award by said Master or of any judgment or decree entered in conformity therewith.”

On the basis of this agreement, the plaintiff here urges that the appeal should be dismissed because the parties contracted to waive review. The defendants argue that the arbitrator failed to decide many issues submitted to him for determination, and that in consequence he failed to conform to the stipulations in the arbitration agreement. One provision of the agreement had indicated that the decision was to be based on Illinois law, but the defendants here argue that the award was a compromise, not a decision' according to law, and that the order of the court affirming the award should therefore be reversed. Plaintiff does not rest his entire argument on a request for dismissal, but also affirmatively argues that the decision of the arbitrator is correct and that the court order entering the award should be affirmed.

The defendants argue that plaintiff was guilty of many acts violative of his duty to the group and that he should therefore be denied any form of compensation. Defendants urge in particular that since plaintiff himself drew up the voting trust agreements which were subsequently declared void, all provisions of the agreement, including the one for a finder’s fee, were voided. Defendants also argue that plaintiff violated his fiduciary duty as an attorney, as a trustee under the voting trust agreements, as a joint venturer, and as a director of the corporation which had been formed to hold title to the land in issue. It is argued that the plaintiff should be denied any relief because he came into the proceeding with unclean hands, having claimed an attorney’s fee of 10 percent of the profits and a half interest of another 10 percent of the profits as his share of the finder’s fee, both purportedly asserted in bad faith. Defendants also argue that whatever right plaintiff may have had to share in the finder’s fee was forfeited because of his conflict of interest, his withholding of his assessment shares on many occasions, and his effort to make separate deals with some of the beneficiaries in order to deprive Meyers and El Chonen of their shares of the finder’s fees.

On a more technical level, the defendants suggest that the provision for a finder’s fee stipulated that it be taken from profit during the life of the trusts, and that there were none, since the trusts were terminated on December 9, 1964, and the sale resulting in the profit did not take place until 1966. Thus, at the time of the profits there were no trusts, so no fee was payable.

As we have pointed out, before the case went to arbitration the parties had entered into an agreement stipulating the terms which were to control the arbitration process, and we have set out some of these terms. One was that there should be no right by any party to seek review “by any court of any final award by said Master or of any judgment or decree entered in conformity therewith.” Now the defendants seek a review of the award, arguing that the arbitrator violated the spirit of the agreement, and that the award should therefore be set aside.

In 1961, Illinois adopted the Uniform Arbitration Act which specifies the grounds upon which awards will be vacated (Ill Rev Stats 1967, c 10, §101). Section 112 of the statute provides the following:

“(a) Upon application of a party, the court shall vacate an award where:
“ (1) The award was procured by corruption, fraud or other undue means;
“(2) There was evident partiality by an arbitrator appointed as a neutral or corruption in any one of the arbitrators or misconduct prejudicing the rights of any party;
“(3) The arbitrators exceeded their powers;
“(4) The arbitrators refused to postpone the hearing upon sufficient cause being shown therefor or refused to hear evidence material to the controversy or otherwise so conducted the hearing, contrary to the provisions of Section 5, as to prejudice substantially the rights of a party; or
“(5) There was no arbitration agreement and the issue was not adversely determined in proceedings under Section 2. . . .

The defendants make no claim which would bring into issue any of these quoted paragraphs. It would seem that their argument is restricted to a claim that the arbitrator “exceeded” his authority by refusing to comply with the terms of the agreement. However, it appears that the primary ground for this assertion is that the arbitrator failed to include reasons for his award and summarily overruled objections to the award. In their reply brief the defendants call this court’s attention to the fact that the arbitration agreement contained a provision that all differences and claims between the parties were referred to the Master who was to “award, order, adjudge and determine of and concerning the same, . . . .” Defendants then point out that the award makes no mention of their defense of unclean hands, of the contention that the invalidity of' the voting trust agreements and the certificates of beneficial interest voided all the provisions thereof, including the provision for finder’s fees, nor of the assertion that plaintiff had violated his fiduciary duty. The defendants had also alleged that there was a conflict of interest and that there was no profit during the life of the trust on which a finder’s fee could be based. Neither of these matters was directly referred to in the award. The defendants argue that the award did not substantially comply with the terms of the submission and should therefore be set aside.

The arbitrator did no more and no less than he was empowered to do. The terms of the submission did not impose a duty upon him to draft a detailed opinion so it cannot now fairly be held that he failed to fully explain his conclusions. We do not agree with defendants’ contention that since the arbitrator made no direct reference in his award to matters specified by defendants those matters were not considered by the arbitrator. We feel, rather, that the arbitrator did consider the matters submitted to him and found the defendants’ arguments frivolous or not of merit. It was his function to make such determinations, and it would seem to us that defendants now complain because they believed, as do all litigants, that they were entitled to the award, and are now attempting to avoid the bargain they had entered into since it has turned out to be a bad one from their point of view.

Courts of review do not sit to relieve parties from obligations into which they have freely entered, and we see no reason here to vacate the award. In Stearns v. Cope, 109 Ill 340, the court said at page 348:

“Where, however, . . . the circumstances are such that the arbitrators will be warranted in requiring the party who, upon the whole, appears to be in default, to pay to the other a gross sum of money, it is not necessary, nor is it the better practice, for the award to show upon its face just how the result was reached, — or, in other words, how each item of their respective demands was disposed of. It is sufficient if the award is responsive to, and is fairly embraced within, the submission. The awarding of a gross sum of money in such case will be presumed to be a complete adjustment of all matters of difference embraced in the submission, . . . .”

Nothing in the Uniform Arbitration Act calls for a different analysis, and the Stearns statement is relevant.

In White Star Mining Co. of Illinois v. Hultberg, 220 Ill 578, at page 602, 77 NE 327, the court quoted with approval from Sherfy v. Graham, 72 Ill 158, where it was said that arbitrators, “by the submission, become judges, by the choice of the parties, both of the law and the fact, and from their decision there is no appeal or review, of any decision made by them within the scope of their powers, unless it be for fraud, partiality or misconduct.”

Although the current arbitration statute expands the grounds for which an award should be set aside, it does not alter the basic proposition that the award is correct and should stand unless it can be proved that there was some form of corruption or unfair practice employed in obtaining the award. An award need not be set out in technical language and in great detail in order to show how the conclusions are reached; the arbitrator needs only to announce his result. Podolsky v. Raskin, 294 Ill 443,128 NE 534.

Applying these principles, it is our determination that the award in the instant case should be left undisturbed. This conclusion is made all the more compelling by the fact that the parties expressly contracted to •waive review of the award. Such a provision should not be held meaningless but should restrict the purpose of review to find whether or not any improprieties existed in the procedure of the arbitration. We find that no such condition existed in this case, and the judgment of the Circuit Court is affirmed.

In view of this finding it is not necessary to consider the plaintiff’s motion to dismiss the appeal.

Judgment affirmed.

LYONS, P. J. and BURKE, J., concur.


source: Caselaw Access Project

author: MR. JUSTICE STAMOS

license: Public Domain

text:
    Richard O’Donnell, Doing Business as Turf Lounge, Plaintiff-Appellant, v. Illinois Liquor Control Commission, Howard S. Cartwright, Chairman, Defendant-Appellee.
    Gen. No. 52,790.
    First District, Fourth Division.
    October 1, 1969.

      Gerald B. Mullin, of Chicago, for appellant.
    William G. Clark, Attorney General of State of Illinois, of Chicago (John J. O’Toole and John J. George, Assistant Attorneys General, of counsel), for appellee.
   MR. JUSTICE STAMOS

delivered the opinion of the court.

Plaintiff, Richard O’Donnell, d/b/a Turf Lounge, filed a statutory action in the Circuit Court under the Administrative Review Act, Ill Rev Stats, c 110, §§264-279 (1967), to review the order of defendant, Illinois Liquor Control Commission, revoking plaintiff’s liquor license. The court affirmed the order of the Commission and this appeal followed.

The Illinois Liquor Control Commission citation served upon plaintiff to show cause why his license should not be suspended or revoked alleged the following violations of Revised Rule 3 of the Rules and Regulations of the Commission:

(1) Licensee did in violation of Article X, § 1, secure a State Retail liquor license by false and fraudulent application, to wit: licensee did falsely answer application by stating he had never made previous application for a retail liquor license when, in fact, he made previous application as a corporate officer of a corporate licensee;

(2) Licensee violated Article VI, § 20 by wilfully obscuring the view of the licensed premises;

(3) Licensee is ineligible to hold a license in Cicero as his application shows that he is a resident of Lincoln-wood, Illinois, a violation of Article VI, § 2.

The Commission found that the evidence adduced at the hearing did not support the charge that plaintiff secured a State Retail liquor license by a false and fraudulent application; however, the Commission did find that the evidence supported the charges of wilfully obscuring the view of the premises and the ineligibility of the plaintiff to hold a license because of nonresidency and these findings were affirmed by the Circuit Court.

Plaintiff contends there is no substantial evidence in the record to establish that he wilfully violated the statutory requirement for an unobstructed view of the licensed premises. He also contends that he was denied fair treatment in the revocation of his license for nonresidency.

Officer Donald Konley of the Cook County Sheriff’s Police testified that on August 9, 1967, he. went to the plaintiff’s tavern at about 11:15 in the evening and observed two large windows on either side of the entrance. He observed that striped bamboo drapes were completely drawn the full length and width of all the windows and thus he could not see through them. At the entrance of the tavern there were a pair of doors with full length frosted glass, except for 14-inch clear glass portholes in the upper half; upon entering the tavern there was a vestibule and another pair of doors with the same type of frosted glass and similar portholes. The portholes in the two sets of doors were not directly in line when viewed from the outside, and only afforded a view of a small portion of the interior floor. The Commission and plaintiff both introduced photographs into evidence regarding the charge of wilfully obstructing the view of the interior of the premises. These photographs were made available to this court.

Two agents of the Federal Bureau of Investigation testified that they had a conversation with plaintiff on July 31, 1967, and he advised them that he lived in Lincolnwood, Illinois, for the previous 29 years and had never lived in Cicero, Illinois. An official of Cook County Clerk’s office produced plaintiff’s original voters’ registration card which reflected his address at Lincolnwood, Illinois; certified copies of plaintiff’s application for a driver’s license and title to his automobile issued by the Secretary of State, State of Illinois, were also admitted into evidence showing plaintiff’s residence to be in Lincolnwood, Illinois.

OPINION

Although plaintiff admits his residency at Lincolnwood, Illinois, he argues that the Commission is unfair in revoking his license because the local commissioner made no objection to the residency of plaintiff outside the town of Cicero and he never concealed his Lincolnwood residence when he filled out his application for a liquor license.

The record reflects that approximately two months after the license was issued to plaintiff, the Illinois Liquor Commission commenced the instant proceedings. The Liquor Commission has original jurisdiction to institute revocation proceedings even though the licensee has both a local and state liquor license. Pliakos v. Illinois Liquor Control Commission, 12 Ill App2d 170, 175, 138 NE2d 862 (1956).

The fact that the local commissioner issued the license with knowledge that plaintiff was not a resident of the town of Cicero as required by law, does not preclude a revocation by the Liquor Commission.

Section 109 of the Illinois Liquor Control Act provides that the issuance of a license shall not prejudice the Commission’s action in subsequently suspending or revoking such license if it appears after notice and a hearing that the licensee has violated a provision of the. Act. The wisdom of the foregoing statute is apparent in the instant matter. The Commission charged with the enforcement of the Liquor Control Act properly proceeded to seek the revocation of the license which had been issued contrary to the residency requirement. We find no unfairness or arbitrary action by the Commission in revoking the license on that ground.

Plaintiff contends that there is no evidence to support the Commission’s finding that there was a wilful violation of the provisions of section 141. The two sets of frosted glass doors and portholes are permanent fixtures and were designed, constructed and installed in such a manner that they prevented and obscured a clear view of the interior of the licensed premises from the sidewalk.

Plaintiff endeavors to exculpate himself from the duties and sanctions of section 141 by contending that he was not present at the time of the violation and that he had instructed his bartender that the drapes must be pulled open. However, Ill Rev Stats, c 43, § 185 (1967) provides that every act or omission by an agent or employee of the licensee which is a violation of the Dram Shop Act, is deemed to be an act or omission of the licensee personally. Plaintiff also contends that the drapes were necessary to control the sunlight, but the evidence shows that the witnesses’ observations and photographs were made at 11:15 p. m. The drapes were of the draw type and required a deliberate and intentional act to open or close them. The design of the frosted glass doors and their installation portray a wilful endeavor to preclude and prevent a clear view of the interior of the premises from the entrance. This endeavor is properly considered in making a determination of whether the drapes were deliberately and wilfully closed to achieve what had been so successfully attained by the door design; that is, to prevent a clear view into the interior of the premises. We find there was substantial evidence that plaintiff wilfully violated section 141.

For the foregoing reasons, judgment is affirmed.

Judgment affirmed.

DRUCKER, P. J. and McNAMARA, J., concur.

       Ill Rev Stats, c 43, § 141 (1967) :
      “In premises upon which the sale of alcoholic liquor for consumption upon the premises is licensed, other than as a restaurant, hotel, club or any bowling establishment, no screen, blind, curtain, partition, article or thing shall be permitted in the windows or upon the doors of such licensed premises nor inside such premises, which shall prevent a clear view into the interior of such licensed premises from the street, road or sidewalk at all times, and no booth, screen, partition, or other obstruction nor any arrangements of lights or lighting shall be permitted in or about the interior of the licensed premises which shall prevent a full view of the entire interior of such premises from the street, road or sidewalk, and the premises must be so located that there shall be a full view of the entire interior of such premises from the street, road or sidewalk. All rooms where liquor is sold for consumption upon the premises shall be continuously lighted' during business hours by natural or artificial white light so that all parts of the interior of the premises are clearly visible. In case the view into any licensed premises required by the foregoing provision, is wilfully obscured by the licensee or by him wilfully suffered to be obscured or in any manner obstructed, then such license is subject to revocation in the manner herein provided. In order to enforce the provisions of this Section the local commission has the right to require the filing with it of plans, drawings and photographs showing the clearance of the view as above required.”

       Ill Rev Stats, e 43, § 120 (1967):
      “No license of any kind issued by the State Commission or any local commission shall be issued to:
      “(1) A person who is not a resident of the city, village or county in which the premises covered by the license are located;

       Ill Rev Stats, c 43, § 109 (1967).


author: MR. PRESIDING JUSTICE DRUCKER

text:
    Frank Murphy and Harriet A. Murphy, Plaintiffs-Appellees, v. City of Countryside, a Municipal Corporation, Defendant-Appellant.
    Gen. No. 53,208.
    First District, Fourth Division.
    October 1, 1969.
    Rehearing denied October 24,1969.

      Klein, Thorpe, Kasson & Jenkins, of Chicago (Arthur C. Thorpe, of counsel), for appellant.
    Hall, Borkenhagen & Gustafson, of LaGrange (Raymond H. Borkenhagen, of counsel), for appellees.
   MR. PRESIDING JUSTICE DRUCKER

delivered the opinion of the court.

Plaintiffs brought a declaratory judgment action seeking a declaration that defendant’s zoning ordinance which restricts the use of their property to R-l, single-family dwellings, is void, and further seeking permission to erect apartment buildings as permitted under the R-5 (multiple-family) use classification.

The court, adopting the recommendations of the master, declared the ordinance void as applied to the southern half of plaintiffs’ property and rendered a decree allowing plaintiffs to use the southern half of their property for the “uses permitted in the R-5 use districts” of the City of Countryside; the ordinance was declared valid as to the northern half of plaintiffs’ property.

Defendant appealed, contending that its zoning ordinance is valid as to the whole of plaintiffs’ property; plaintiffs cross-appealed, asserting that the ordinance is void as to the whole of their property.

Plaintiffs’ property is a rectangular shaped parcel of vacant land (722 feet by 330 feet) located on the south side of 57th Street a few hundred feet west of LaGrange Road. The parcel has a 722-foot frontage on 57th Street. Immediately to the east of plaintiffs’ property and contiguous to it is an automobile agency which extends to and fronts on LaGrange Road. That property formerly belonged to plaintiffs but was sold to Chrysler Motors after having been rezoned for commercial use with plaintiffs’ participation and assistance. South of the Chrysler property and along LaGrange Road is a hotel followed to the south by residential property, and then three houses which front on 58th Street.

Directly to the south of plaintiffs’ property and just to the west of the property along LaGrange Road herein-above described is unimproved land for two blocks to 59th Street, with the exception of a single-family home at 58th Street. 58th Street does not extend all the way across the section of unimproved land, rather it extends only 700 feet west off of LaGrange Road (the depth of the commercial zoning classification along LaGrange). South of 59th Street is a drive-in movie theater; and south of that there is vacant land for about two blocks to Route 66.

Immediately to the west of the plaintiffs’ parcel is the plaintiffs’ own dwelling, and to the west of that there are two homes fronting on 57th Street. Farther west there are medium single-family homes ranging in price from $18,000 to $32,000. To the north the parcel is bounded by single-family homes that front on the north-south streets running north from the plaintiffs’ parcel.

Plaintiffs’ experts testified that the highest and best use of the subject property was for multiple-family residences. Defendant’s experts testified that the highest and best use would be for continued single-family development. The latter based their opinion upon the fact that (1) with multiple-family zoning there would be an increase in density of families per acre from two per acre to almost thirty family-dwelling units per acre on the subject property; (2) a multiple-family use would decrease the land value of the adjoining properties, some by as much as ten percent; and (3) the existing development within the City of Countryside is for single-family use and a rezoning to R-5 would have a detrimental effect on an established single-family area by disturbing the balance of the remaining vacant land which could be developed for single-family residences.

The defendant contends that the trial court erred in dividing the property for zoning purposes. We agree. In Exchange Nat. Bank of Chicago v. City of Waukegan, 85 Ill App2d 461, 229 NE2d 562 the plaintiff desired to build apartments on its property. He sought to rezone the property and the trial court, upon review of the City’s denial to rezone, split the property in half, finding the City’s zoning ordinance invalid as to the “East Portion” of the subject property but valid as to the “West Portion.” Upon appeal the lower court decree was reversed. The court stated:

“The Trial Court has no authority to divide the property. As the Supreme Court said in the case of Bredberg v. City of Wheaton, 24 Ill2d 612, at page 624, 182 NE2d 742:
“ ‘We may say at once that nothing in our decisions in Sinclair Pipe Line Co. v. Village of Richton Park, 19 Ill2d 370, and Illinois Nat. Bank & Trust Co. v. County of Winnebago, 19 Ill2d 487, was intended to permit a Trial Court to constitute itself as a zoning authority by carving out and rezoning a portion of the land in litigation.’ ”
“The court found that the ‘East Portion’ of the property in question should be zoned as R-5; it then ordered the property divided for zoning purposes. Such order usurped the powers of the legislative governmental body, and the order was contrary to the principles of law established by the foregoing authorities. Because the court divided the property for zoning purposes, the proper administrative agencies of the defendant city were never called upon to consider the question of changing the zoning of that particular property as is required by law. See: Bright v. City of Evanston, 10 Ill2d 178, 139 NE2d 270.”

For the reasons set forth above, we find that the trial court erred in dividing and rezoning the property. The judgment declaring the southern half of plaintiffs’ property invalid is reversed.

In their cross-appeal the plaintiffs contend that on this record the present R-l classification of the City should be held void as to the whole of the subject premises. We do not agree. Declaring the City’s present zoning ordinance invalid, as applied to plaintiffs’ property, is not warranted. In Reeve v. Village of Glenview, 29 Ill2d 611, 616, 195 NE2d 188, the court held:

Courts have authority to pass upon the validity of a zoning ordinance, but this does not include the legislative function of determining the ultimate zoning classification of the area. (National Buick Co. v. County of Lake, 9 Ill2d 191.) An exception to this rule was laid down in Sinclair Pipe Line Co. v. Village of Richton Park, 19 Ill2d 370, where we held the court empowered to avoid undesirable results by-framing its decree with reference to the record before it. However, the Sinclair case and others following it were cases in which the evidence showed the specific proposed use of the property. Where the record fails to show any evidence of the use proposed, this rule does not apply. In the instant case, the record is wholly devoid of any evidence of proposed use.

In the case before us the same situation exists. Although plaintiffs’ expert witnesses testified that the highest and best use of the subject property was for multiple-family residences, two of these experts, in so testifying, stated that no detrimental or adverse effect would be caused to the City or the adjoining property owners if the multiple-family development was properly designed and planned. However, no such design or plan was introduced into evidence by the plaintiffs and the decree made no reference to any such design or plan. Therefore, since no design or plan of the contemplated use of the property was made part of the record, the plaintiffs could not sustain their burden of proving the unconstitutional effects of the challenged ordinance as applied to their property, and the court had no basis upon which to frame its decree so as to avoid usurping the legislative power of the City’s zoning authorities. Reeve v. Village of Glenview, supra; Harshman v. City of De Kalb, 64 111 App2d 347, 212 NE2d 146.

The plaintiffs also failed to show that they would sustain any hardship by the enforcement of the City’s present R-l ordinance. They presented no evidence which established that the present single-family zoning depreciated the value of their property, nor did they show any effort to sell the property under its present R-l use. As the court stated in First Nat. Bank & Trust Co. v. Evanston, 53 Ill App2d 321, 325, 203 NE2d 6:

It is a well established rule of law that a person who seeks to attack the validity of an ordinance is required to show that he is sustaining or is in danger of sustaining some hardship or injury as the result of the enforcement of the ordinance. Clark Oil and Refining Corp. v. City of Evanston, 23 Ill2d 48, 177 NE2d 191, and cases therein cited.

For the reasons herein set forth, the judgment rezoning the southern half of the property to R-5 is reversed. The judgment which sustains the ordinance as applied to the northern half of the property is affirmed. Thus, plaintiffs' entire property remains subject to the requirements of the R-l zoning classification.

Reversed in part; affirmed in part.

ENGLISH and STAMOS, JJ., concur.


author: JUSTICE SCHWARTZ.

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Vivian Jordan, Defendant-Appellant.
    Gen. No. 52,796.
    First District, Third Division.
    October 2, 1969.
    Gerald W. Getty, Public Defender of Cook County, of Chicago (Herbert Becker, Norman W. Fishman, and James J. Doherty, Assistant Public Defenders, of counsel), for appellant; Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and James B. Klein, Assistant State’s Attorneys, of counsel), for appellee.
   Opinion by

JUSTICE SCHWARTZ.

Not to be published in full.


author: MR. PRESIDING JUSTICE DEMPSEY

text:
    C. A. Aderdung Plumbing & Heating Company, Plaintiff-Appellee, v. Harold Stanton and Mary Stanton, Defendants-Appellants.
    Gen. No. 53,154.
    First District, Third Division.
    October 2, 1969.
    Thomas R. O’Bryan, Paulson & Ketchum, of Chicago (Samuel C. Morris, of counsel), for appellants.

      Rappaport, Clorfene & Rappaport, of Chicago (Merrill B. Meyer, of counsel), for appellee.
   MR. PRESIDING JUSTICE DEMPSEY

delivered the opinion of the court.

An auto owned by Harold Stanton and driven by his wife collided with a truck belonging to the plaintiff. The plaintiff brought an action for property damages against the couple and the husband counterclaimed for the damage to his auto. The trial court, sitting without a jury, found in favor of the plaintiff. It entered a judgment of $700 against both defendants on the plaintiff’s claim and a judgment against the husband on his counterclaim. The defendants contend that the findings and judgment were against the manifest weight of the evidence and that the plaintiff was guilty of contributory negligence as a matter of law.

The collision occurred about 3:05 p. m., October 21, 1964, at the intersection of Birchwood and Winchester Avenues in Chicago. Birchwood is a one-way street going east and Winchester is a one-way street going north. Both streets are about 30 feet wide. There is no stop sign or signal light at the intersection. At the time of the accident, cars were parked up to the corners on each side of each street. The weather was clear and the pavement dry.

Anthony Baxter, a witness to the collision, testified that he was driving east on Birchwood behind the plaintiff’s truck. He stated that about 40 feet from the Winchester intersection, the brakes of the truck were applied and it slowed to 15 miles per hour. When the truck reached the curbline, its brakes were released and it accelerated to a speed of 20 to 25 miles per hour. The truck traveled about 20 feet or approximately halfway through the intersection when its right rear end was struck by the front of the defendants’ auto. The impact of the collision lifted the rear of the truck completely off the ground and flipped it in the air. The truck landed on its left side in the northeast corner of the intersection. The auto stopped in the center of the intersection.

Baxter was about 100 feet behind the truck at the time of the accident. He testified that the left side of the truck was on the left side of an imaginary center line on Birchwood when the collision occurred and that it had been in approximately the same position as it approached the intersection. He did not see the defendants’ auto until a second before the collision; however, he estimated that it was traveling at least 20 miles per hour. After the accident, he saw that the car left skid marks about 25 to 30 feet long.

The driver of the truck, Dwayne Borland, did not testify at the trial. Carl Aderdung, the owner of the truck, stated that Borland no longer worked for him and could not be located. He testified that prior to trial, he twice called at Borland’s residence but no one answered the doorbell. He also contacted the plumber’s union to ascertain Borland’s place of employment, but Borland no longer worked at the location the union gave him. As to the damage to the truck, Aderdung testified that the left side “was completely scraped up.” and that the right rear from the “back of the truck to one of the doors in the middle was banged in, bent up.”

The police officer who investigated the accident testified that he interviewed Borland in the hospital the same afternoon. Borland stated that he was driving eastbound on Birchwood and, as he approached Winchester, saw the other vehicle in the intersection. He did not apply his brakes but stepped on the gas and tried to go around the auto to avoid an accident. The driver of the auto applied her brakes but struck him in the right rear.

The police officer also testified as to his own observation of the scene. He said that the defendants’ auto stopped four to five feet across the center line of Birch-wood. The debris where the impact took place was north of the center line at a slight angle. The right rear quarter panel of the truck had been struck by the front of the auto and the officer concluded that this alone indicated that the northbound vehicle — the defendants’ auto — entered the intersection first. The officer also noted that the skid marks left by the defendants’ auto in the intersection were very slight.

Mrs. Stanton testified that she drove her auto up the center of Winchester, approached the Birchwood corner at about 15 miles per hour and stopped at the crosswalk. She did not see any cars coming but admitted that she could see only about three car lengths. She then drove forward and proceeded halfway into the intersection when she saw a vehicle coming about two or three feet away. She put on her brakes, and the truck swerved and attempted to go around her. The front of her auto hit the side of the truck approximately over the right rear wheel and the truck rolled over. Mrs. Stanton estimated that she was traveling five or six miles per hour and that the truck was traveling 25 miles per hour when they collided.

In support of their contention that the decision of the trial court was against the manifest weight of the evidence and that the plaintiff was guilty of contributory negligence as a matter of law, the defendants argue as follows: (1) The plaintiff’s driver failed to keep a proper lookout; the driver either looked to the right and did not see the defendants or saw their auto and thought he could beat it across the intersection. (2) The driver was traveling at an excessive speed and lacked full control over his vehicle; his truck tipped over when it was struck by the defendants’ slow-moving auto. (3) The defendants’ car had the right of way; it was to the right and entered the intersection first or at the same time as the truck. (4) The plaintiff made no real effort to produce the driver, who was a material witness; therefore, there was a presumption that his testimony would have been adverse to the plaintiff.

There is much to be said for the defendants’ side of the case; nevertheless, there was enough evidence favorable to the plaintiff to justify the finding made by the trial court. When the evidence is conflicting and different inferences can be drawn from it, the trier of facts must determine where the preponderance lies.

The eyewitness’ unbiased account of the accident, the place where the collision took place, the resting place of the vehicles after the impact, the force of the impact, the location and extent of the damage, and the skid marks made by the defendants’ auto supported the plaintiff’s claim that Mrs. Stanton was at fault and the driver of the truck was not. An auto going five to six miles an hour does not leave skid marks — slight or 25 to 30 feet long — when it is stopped suddenly. The trial judge could have disbelieved Mrs. Stanton’s testimony that she was driving very slowly. He also could have discounted the officer’s opinions and his hearsay testimony. He could have believed that the truck driver, upon approaching Winchester, slowed down and looked for oncoming traffic; that he saw none about to enter the intersection and increased his speed; that he was traveling north of the center line of the one-way street and was more than halfway across Winchester when the defendants’ car approached the middle or rear side of his truck at a speed of at least 20 miles an hour; that he swerved sharply to the north to avoid the car but that it crashed into the right rear of his truck, and that the sharpness of his turn and the angle and force of the impact caused his truck to overturn. The plaintiff made an effort to produce the driver of his truck, who had not worked for him for fourteen months prior to the trial, and it was for the trial judge to determine whether the effort was reasonable.

The findings of a trial judge concerning disputed evidence are to be accorded the same weight as the verdict of a jury and will not be reversed unless they are against the manifest weight of the evidence. Liberty Mut. Ins. Co. v. Gordon, 94 Ill App2d 90, 236 NE2d 377 (1968); Inter-Insurance Exchange v. Travelers Indemnity Co., 57 Ill App2d 17, 206 NE2d 518 (1965); Hood v. Brinson, 30 Ill App2d 498, 175 NE2d 300 (1961). In this case, the findings were not against the manifest weight of the evidence and the judgment will be affirmed.

Affirmed.

SCHWARTZ and McNAMARA, JJ., concur.


author: MR. JUSTICE SCHWARTZ

text:
    Justin Hulman, Commissioner of Savings and Loan Associations of the State of Illinois, Plaintiff-Appellee, v. Old Reliable Savings and Loan Association, a Corporation, Defendant-Appellee, Walter P. Murphy, Receiver, Petitioner-Appellant.
    Gen. No. 53,638.
    First District, Third Division.
    October 2, 1969.

      Sydney G. Craig and John I. Hentzel, of Chicago (Martin, Craig, Chester & Sonnenschein, of Chicago, of counsel) , for appellant.
    William J. Scott, Attorney General of State of Illinois, of Chicago (John J. O’Toole, Assistant Attorney General, of counsel), for appellee.
   MR. JUSTICE SCHWARTZ

delivered the opinion of the court.

This is an interlocutory appeal taken pursuant to Supreme Court Rule 307 (a) (2) from an order of the trial court dismissing a petition for declaratory judgment and injunction. Walter P. Murphy, the statutory receiver of Old Reliable Savings and Loan Association, sought an order declaring that he was entitled to complete his duties as receiver and praying that Justin Hulmán, Commissioner of Savings and Loan Associations of the State of Illinois, be restrained from removing or discharging him. The sole issue is whether the Commissioner of Savings and Loan Associations has the power to remove a statutory receiver whom he had appointed. The facts follow.

On August 6, 1966, Justin Hulmán, Commissioner of Savings and Loan Associations (Commissioner), took custody of the Old Reliable Savings and Loan Association pursuant to section 7-8 of the Illinois Savings and Loan Act. Ill Rev Stats, c 32, § 848 (1967). The Commissioner determined that Old Reliable should be liquidated and on September 15, 1966, he directed the Attorney General to file a complaint in equity for such liquidation. HI Rev Stats, c 32, § 922 (1967). On October 7, 1966, the Commissioner appointed Walter P. Murphy as receiver for the purpose of liquidating Old Reliable. Murphy took possession of the books, records and assets of Old Reliable and commenced the work of winding up its affairs. He continued in his duties as receiver until November 11, 1968.

On November 4, 1968, Murphy filed a verified petition in the receivership proceedings summarizing his actions as receiver to that date and disclosing that the Commissioner, following several earlier requests, had made final demand for his resignation as receiver, threatening that in the absence of a voluntary resignation, he would remove Murphy. Murphy’s petition stated that he had not complied with the Commissioner’s request because he desired to complete his statutory duties as receiver and that he was of the opinion that he could not be removed except for cause. He prayed for a declaration that he was lawfully entitled to complete his statutory duties and for an injunction restraining the Commissioner from removing him and appointing a new receiver. On motion of the Commissioner, Murphy’s petition was dismissed on November 8, 1968. On the same day the Commissioner filed notice before the court that he was removing Murphy as of November 11, 1968, and appointing in his place the Federal Savings and Loan Insurance Corporation. The sole issue on appeal is whether the Commissioner has the authority to remove a receiver against his will.

The regulation of savings and loan associations is governed by the Hlinois Savings and Loan Act, which is patterned after the Illinois Banking Act and the Insurance Liquidation Act. People ex rel. Knight v. O’Brien, 40 Ill2d 354, 240 NE2d 686. Section 10-1 of the Savings and Loan Act provides that the Commissioner of Savings and Loan Associations, after taking custody of an association and finding that one or more of the reasons for taking custody continue to exist, shall appoint a receiver for purposes of liquidation. El Rev Stats, c 32, § 921 (1967). The Act further provides that the Commissioner shall then direct the Attorney General to file a complaint in equity for the liquidation and dissolution of the association. Ill Rev Stats, c 32, § 922 (1967). The receiver is given broad powers to act under orders of court — inter alia, to sell property, borrow money, settle claims, collect payments on mortgages and home improvement loans, institute foreclosure proceedings on delinquent loans, arrange for FHA and VA refinancing of various properties, purchase equities in certain properties and make distributions. Unlike the Blinois Banking Act, which specifically provides that the Commissioner of Banks and Trust Companies may remove any receiver appointed by him (Ill Rev Stats, c 16y2, § 162 (1967)), the Savings and Loan Act makes no such provisions and any assumption of such power would have to be by implication.

The Commissioner contends that the power to appoint carries with it the implied power to remove. He also argues that the recent case of People ex rel. Knight v. O’Brien, 40 Ill2d 354, 240 NE2d 686, has held that the supervising court is without authority to remove a receiver from office and that if we should now conclude that the Commissioner does not have such power of removal, a receiver could not be removed by anyone. That is not an uncommon situation in our body politic. Frequently a governor, mayor or board is given the power to appoint but not remove.

The statutory power to appoint does not, in the absence of an express provision, carry with it the power of removal. Field v. The People, 3 Ill 79; People v. Ridgley, 21 Ill 64; 9 CJS, Banks and Banking, § 496. In the Ridgley case the court considered an act providing for the liquidation of the State Bank of Illinois. By that Act the Governor was given the power to appoint trustees to wind up the affairs of the bank, but not to remove them. The court held that the Governor did not have the authority to remove the trustees and stated that if anyone was injured by their maladministration, the court would hold the trustees responsible in an appropriate action.

It is significant that although the Savings and Loan Act is patterned after the Banking Act, the Banking Act has an express provision empowering the Commissioner of Banks to remove any receiver appointed by him, but the Savings and Loan Act has no such provision. In enacting the Savings and Loan Act the legislature set out comprehensive provisions for the liquidation of savings and loan associations. It no doubt could have given the Commissioner the power of removal as it did in the Banking Act, but absent such a provision, it must be assumed that the legislature did not intend to do so.

The question then arises as to what remedy would exist if a receiver so appointed became incapacitated or otherwise neglected to perform his duties. There has been submitted to this court an opinion recently rendered by the United States Court of Appeals for the 7th Circuit in the case of Tcherepnin v. Kirby, Nos. 17171, 17234, 17235 (April Session 1969). The issue as stated by the court in that case was whether the District Court had abused its discretion in appointing federal receivers and enjoining the voluntary state liquidation procedure. The court went at length into what was called the “checkered history” of the institutions, involving material false and misleading statements in violation of the federal security laws. The court then said:

“It is sufficient that in our view the record supports the conclusion of the district judge that the protection of federal interests in this suit for relief under the securities laws required the appointment of federal receivers. As we stated in Securities and Exchange Com’n v. Keller Corp., 323 F2d 397, 403 (7th Cir 1963), a ‘prima facie showing of fraud and mismanagement ... is enough to call into play the equitable powers of the court’ to appoint a receiver. Our judgment is reinforced by the fact that all parties who stand to benefit from the expeditious conclusion of City Savings affairs support the district court’s order.”

Petitioner has submitted the opinion as showing that there is a remedy for the removal of a receiver for cause. It is not relevant now as no such showing was made. The court’s order dismissing Murphy’s petition is reversed and the cause remanded for such other and further proceedings as are not inconsistent with the views herein expressed.

Order reversed and cause remanded with directions.

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


author: MR. JUSTICE MURPHY

text:
    People of the State of Illinois, Plaintiff-Appellee, v. George Washington, Defendant-Appellant.
    Gen. Nos. 52,419, 53,377.
    First District, First Division.
    October 6, 1969.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (John E. Hughes, Shelvin Singer and James J. Doherty, Assistant Public Defenders, of counsel), for appellant.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane, Assistant State’s Attorney, of counsel), for appellee.
   MR. JUSTICE MURPHY

delivered the opinion of the court.

In a bench trial, defendant was found guilty of burglary and was sentenced to the penitentiary for a term of two to four years. On appeal he contends that the trial court erred in (1) accepting his jury waiver, and (2) admitting evidence in violation of defendant’s Fifth and Sixth Amendment rights, as set forth in Miranda v. Arizona, 384 US 436 (1966).

The prosecuting witness, Arthur J. Arthur, owner of Cohen’s Department Store at 739 South California Avenue in Chicago, testified that on January 26, 1967, he closed his store and, upon returning on January 28, 1967, he found the iron gates on the front window torn off, the window glass broken, and no merchandise left. He did not see anyone take the merchandise.

Police Officer Robert Keating testified that about 1:45 a. m. on January 28, 1967, he and his partner were cruising in their squad car in the area of California and Lexington. When about 60 feet away, they saw defendant and another man come out of Cohen’s Department Store, carrying what appeared to be clothing. The police officers chased both men. Defendant was caught and, after being told at gunpoint to stand still, he dropped some clothing. Defendant was then searched and handcuffed.

Officer Keating had a conversation with defendant before they entered the squad car, in which “I advised him that he had the right to remain silent, that anything he might say might be used against him in future proceedings; that before any statements were taken, he was entitled to an attorney; and if he did not have an attorney, that he would be appointed one before any statements were taken.” Officer Keating then asked him if he understood, and defendant said “yes.” The officer further said that after they entered the squad car “I asked him what he was doing in the store. He replied that he was in the store, he saw other people in there and that they were taking things and he thought he would too.”

Police Officer Arthur Hajek testified that he was Officer Keating’s partner. He saw defendant Washington coming through a window at 739 South California, carrying a bundle under his arm. Another person came out before defendant, and while Officer Keating was chasing defendant, he unsuccessfully chased the other man. On cross-examination Officer Hajek did not recall testifying before the grand jury that he saw “one male negro coming out of the front showroom,” and this was the man apprehended by Officer Keating.

David Selig, an Assistant State’s Attorney for Cook County, also testified for the State. He was riding with two other police officers in a squad car on the night in question and saw two men come out of the department store. He saw defendant’s arrest but did not see anything in defendant’s hands. He further testified, “The person I saw exit the window is the same person now on trial — George Washington — and he is the same one I saw the arresting officer have in custody.”

Defendant testified that he was 21 years of age and on January 28,1967, he was on his way home from a poolroom when he was arrested at 739 South California Avenue. He did not at any time enter Cohen’s Department Store, and the shirt and overalls that he was found carrying at the time of his arrest were not stolen, and he “got them off the ground couple feet before the store.” After he picked them up “a fellow jumped out of the window and all at once, the police came and shot, and he said ‘Hold it’ and then I dropped the shirts on the ground and threw my hands up in the air and then he came down and said, ‘Where is your partner?’ I said, T don’t have a partner.’ He said, ‘Who is that that jumped out of the window? ’ I said, T don’t know.’ Then the other one went down the street and I was up there, standing up talking to the other one.”

Considered first is defendant’s contention that the trial court erred in accepting a jury waiver. At the trial defendant was represented by John D. Dillner, an Assistant Public .Defender. The report of proceedings shows that when the case was called for trial, the following colloquy took place:

Defense Attorney: “Defendant is ready for trial.”
Prosecutor: “State is ready.”
Defense Attorney: “Defendant has executed a jury waiver and at this time I will tender it to the court.”
Prosecutor: “Let the record show the defendant says he knows what a jury is.”
The Court: “Are you willing to be tried by this Court rather than a jury ?”
Defendant Washington: “Yes.”
The Court: “You waive your right to a jury?”
Prosecutor: “Do you have a question?”
Defendant Washington: “No.”
The Court: “Plea is not guilty.”

Defendant argues that “the defense attorney advised the court that the defendant had executed a jury waiver and that he tendered it to the court. However, this statement does not indicate that the defendant knew or was informed of the meaning or consequences of a jury trial as compared with a bench trial, nor does the statement of the court: ‘You waive your right to a jury’ explain what a jury trial means or what it means to be tried by the court. This is not what is meant when waiver must be made understandingly in open court.”

Defendant’s authorities include People v. Surgeon, 15 Ill2d 236, 238, 154 NE2d 253 (1958); People v. Fisher, 340 Ill 250, 265, 172 NE 722 (1930); Patton v. United States, 281 US 276 (1930); People v. Suarez, 96 Ill App2d 153, 237 NE2d 841 (1968). In substance, these cases affirmatively show that “the trial court is charged with the duty to see that the election of an accused to forego a trial by jury is both expressly and understandingly made. That duty cannot be perfunctorily discharged.” People v. Surgeon, supra, p 238.

We think the remarks made by the Illinois Supreme Court in People v. Richardson, 32 Ill2d 497, 499, 207 NE2d 453 (1965), apply here:

“Whether a jury waiver has been knowingly and understandingly made depends upon the facts and circumstances of each case, and there can be no precise formula for determining whether a waiver is understandingly made. . . . Merely because the court did not at length discuss the consequences of the jury waiver does not necessarily require a holding that the waiver was not understandingly made. . . . While the trial court might well have dwelt at more length on this matter in complying with its duty to insure that the jury waiver was expressly and understandingly made . . . , we believe that this record indicates that defendant understandingly waived his right to trial by jury.”

We agree that the trial court has the duty to see that an accused person’s election to waive a jury trial is not only expressly but also understandingly made, and the performance of that duty cannot be perfunctorily discharged. Here, the colloquy between the court, defendant’s counsel and defendant indicates that defendant knew he had a right to a jury trial, and that his jury waiver was “knowingly and understandingly made.” Also, the trial court was entitled to rely on the professional responsibility of defendant’s attorney that when he tendered to the court defendant’s jury waiver, which had been previously executed, it was knowingly and understandingly executed by his client. “Defendant is not permitted to complain of an alleged error which was invited by his behavior and that of his attorney.” People v. Melero, 99 Ill App2d 208, 211, 240 NE2d 756 (1968); People v. Novotny, 41 Ill2d 401, 244 NE2d 182 (1968).

Defendant also cites People v. Brownlow, 114 Ill App2d 458, 252 NE2d 685, which disagrees with our jury waiver pronouncements made in People v. Melero, supra, concerning “the professional responsibility of defendant’s attorney.” We think this point is answered in People v. Novotny, supra, where it is said (p 409):

“In this jurisdiction it has been held that a defendant must be said to have acquiesced when he has permitted his attorney in his presence and without objection on his part to waive a jury trial. (People v. King, 30 Ill App2d 264; People v. Stolfo, 32 Ill App2d 340.) In Application of Banschbach, 133 Mont 312, 323 P2d 1112, the rationale behind these decisions is set forth as follows: ‘Of course, if accused proceeds to trial without making his desires for a jury known, then he waives a jury trial under the rule stated in Ex parte Lewis, 85 Okl Cr 322, 188 P2d 367, and Ex parte Guisti, 51 Nev 105, 269 P 600. In other words, he is not permitted to gamble on the outcome before the judge without a jury and then if dissatisfied make a belated demand for a jury.’ 323 P2d at 1114-5.”

In the instant case, even though the result of his jury waiver “may now be unsatisfactory to defendant,” we find that it was not error for the trial court to accept and act upon it.

Considered next is defendant’s contention that the incriminating statement he made to Officer Keating after his arrest, and in the squad car, should not have been admitted into evidence, because he did not make an intelligent waiver of his Fifth and Sixth Amendment rights established in Miranda v. Arizona, 384 US 436. Defendant asserts that he was subjected to custodial interrogation, thus activating his Fifth Amendment privilege against self-incrimination. On this point defendant cites Miranda v. Arizona, where it is said (p 478) :

“To summarize, we hold that when an individual is taken into custody or otherwise deprived of his freedom by the authorities in any significant way and is subjected to questioning, the privilege against self-incrimination is jeopardized. Procedural safeguards must be employed to protect the privilege, and unless other fully effective means are adopted to notify the person of his right of silence and to assure that the exercise of the right will be scrupulously honored, the following measures are required. He must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires. Opportunity to exercise these rights must be afforded to him throughout the interrogation. After such warnings have been given, and such opportunity afforded him, the individual may knowingly and intelligently waive these rights and agree to answer questions or make a statement. But unless and until such warnings and waiver are demonstrated by the prosecution at trial, no evidence obtained as a result of interrogation can be used against him.”

Defendant further notes that in Miranda it is said (p 475):

“If the interrogation continues without the presence of an attorney and a statement is taken, a heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel.”

Defendant contends that the State did not sustain its burden of proving waiver of the Miranda rights because “the ritualistic compliance in terminology which the defendant, a 21-year-old, could not understand is not adequate.” Defendant claims that he was not advised that he could terminate the questioning at any period, even though he might originally have waived his rights. Finally, defendant argues that the waiver of these constitutional rights requires the court to consider the defendant’s age, intelligence, education and background, and here the defendant was young and the questioning took place in a squad car. Defendant further argues that “Officer Keating did not show affirmatively that the defendant understood his Miranda rights and that he expressly waived them. It is not enough to inform the suspect of his rights; nor is the fact that the suspect gave a statement after being informed of his Miranda rights indicative of a knowing waiver.”

The State contends that the incriminating statement in question was admissible under the “procedural safeguards” and “warnings” required by Miranda v. Arizona; also, there was no physical coercion or incommunicado interrogation, and the fact that defendant was 21 years old does not mean that he was incapable of waiving his rights; and there is no requirement that one in custody, who has waived his constitutional rights, be informed that he can terminate the questioning at any time. The authorities cited by the State include In re Orr, 38 Ill2d 417, 231 NE2d 424 (1967), and People v. Hill, 39 Ill2d 125, 233 NE2d 367 (1968). In In re Orr, quoting from Miranda, the court held the confession admissible (p 424):

“[I]t said (384 US at 478, 16 L Ed2d at 726): Tn dealing with statements obtained through interrogation, we do not purport to find all confessions inadmissible. Confessions remain a proper element in law enforcement. Any statement given freely and voluntarily without any compelling influences is, of course, admissible in evidence. The fundamental import of the privilege while an individual is in custody is not whether he is allowed to talk to the police without the benefit of warnings and counsel, but whether he can be interrogated. There is no requirement that police stop a person who enters a police station and states that he wishes to confess to a crime, or a person who calls the police to offer a confession or any other statement he desires to make. Volunteered statements of any kind are not barred by the Fifth Amendment and their admissibility is not affected by our holding today.’ ”

In People v. Hill, defendant, a 17-year-old boy, was questioned without the assistance of counsel on three or four separate occasions for ten to fifteen minutes each over a period of about three hours before he finally confessed. The Miranda warnings were given only at the inception of the questioning. The court held (p 132) :

“The factors present here, of interrogations for relatively short periods of time, unaccompanied by any semblance of coercion, have been deemed sufficient to support a finding of the voluntariness of a confession made to law enforcement authorities where the Miranda rights have been clearly explained. . . . We also find it significant that despite Hill’s original disavowal of any involvement in the murder, he in no way indicated to Detective Serafini ‘any disinclination to submit to further questioning’ . . . , and the circumstances of a defendant’s freely answering certain questions posed by police has been held sufficient to rebut the normal presumption against waiver of constitutional rights.”

We conclude that although defendant was interrogated after being taken into custody, the State has sustained its burden of showing a knowing waiver of defendant’s constitutional rights as set forth in Miranda v. Arizona, 384 US 436, 478. The record demonstrates that defendant’s incriminating statement was “given freely and voluntarily without any compelling influences” after Officer Keating adequately informed him as to his Miranda rights. It was not necessary that defendant be informed that he could terminate the questioning at any period, and there was no physical or mental coercion shown so as to make his statement involuntary. We hold that the incriminating statement of the defendant, made while in the squad car immediately after his arrest, was properly admitted into evidence.

For the reasons given, the judgment of the Circuit Court of Cook County is affirmed.

Affirmed.

ADESKO, P. J. and BURMAN, J., concur.


author: MR. PRESIDING JUSTICE ADESKO

text:
    People of the State of Illinois, Plaintiff-Appellee, v. George E. Ferris, Otherwise Called Patrick J. Keller, Defendant-Appellant.
    Gen. No. 52,825.
    First District, First Division.
    October 6, 1969.
    Gerald W. Getty, Public Defender of Cook County, of Chicago, for appellant.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago, for appellee.
   MR. PRESIDING JUSTICE ADESKO

delivered the opinion of the court.

The defendant was charged with the offense of theft of property exceeding $150 in value. The Public Defender was appointed to represent him and entered a plea of not guilty. Subsequently the defendant, through his attorney, informed the court that he wished to change his plea of “not guilty” to “guilty.” Defense counsel advised the court that he had discussed the entry of the plea of guilty with the defendant on two occasions prior to coming before the court.

The trial court then advised the defendant that on a plea of guilty he was waiving his right to a trial by jury and that he could be sentenced to the penitentiary for a' term of one to ten years. The judge then asked the defendant if he understood and after the defendant answered that he did the judge asked if he still persisted in his plea of guilty. The defendant again answered that he did.

The court entered judgment on the plea and conducted a hearing on aggravation and mitigation. Defendant was sentenced to serve a term of one to three years in the penitentiary. Subsequently, the defendant filed a notice of appeal as to this conviction and the Public Defender continued to represent him.

After filing the record on appeal the Public Defender moved to withdraw as attorney and after a careful examination of the record he concluded that the appeal would be without merit and could not be successful. The Public Defender’s brief in support of the motion to withdraw concluded that the only possible error that could be urged would be the sufficiency of the trial court’s admonishment to the defendant of the consequences of his plea of guilty. The record indicates that the trial court “informed the defendant of the consequences of his plea and of the maximum penalty provided by law which may be imposed upon acceptance of such plea.” Ill Rev Stats, c 38,. § 115-2 and c 110, § 101.26(3), Supreme Court Rule 26(3) (1965), now Rule 401(b); People v. Kontopoulos, 26 Ill2d 388,186 NE2d 312 (1962).

On June 16, 1969, the defendant was notified by this court, in writing, of the Public Defender’s petition to withdraw and was sent copies of the petition and brief in support thereof and was instructed to file any points he might choose in support of his appeal by August 15,1969. The defendant has failed to file any such points to date.

After a thorough consideration of the Public Defender’s motion and brief in support of his petition to withdraw and after examination of the record by this court, and pursuant to the requirements of Anders v. California, 386 US 738 (1967) and People v. Carter, 92 Ill App2d 120, 235 NE2d 382 (1968), we conclude that this appeal is without merit and the Public Defender be allowed to withdraw. The judgment of conviction is affirmed.

Judgment affirmed.

MURPHY and BURMAN, JJ., concur.


text:
    Household Finance Corporation, a Corporation, Plaintiff-Appellee, v. Will T. Cage, Loisteen Cage, Defendants-Appellants.
    Gen. No. 53,141.
    First District, First Division.
    October 6, 1969.
    Thad B. Eubanks, of Chicago, for appellant.
    No brief for appellee.
   MR. PRESIDING JUSTICE ADESKO

delivered the opinion of the court.

This is an appeal by Will T. Cage and Loisteen Cage from a default judgment of $337.92 against them in the Circuit Court of Cook County on June 25, 1963, and from an order of February 1, 1968, denying their motion to vacate said judgment. The defendants-appellants seek reversal of said orders by this appeal.

Defendants filed their brief, abstract and record and complied with all statutory requirements and rules of this court. No appearance or brief was filed in this court by the plaintiff-appellee. In Algozino v. Police Board, 111 Ill App2d 34, 249 NE2d 720, released August 11, 1969, this court ruled that “Where an appellee has not filed a brief in the reviewing court, the order or judgment which is the subject of the appeal may be reversed without consideration of the cause on its merits.” The same result was reached in Parkside Realty Co. v. License Appeal Commission, 87 Ill App2d 374, 231 NE2d 654 (1967) and the cases cited therein.

We conclude that the trial court’s orders of June 25, 1963, and of February 1,1968, are reversed.

Judgment reversed.

MURPHY and BURMAN, JJ., concur.


author: JUSTICE BURKE.

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Arthur Irvin, Defendant-Appelant.
    Gen. No. 52,012.
    First District, Second Division.
    October 7, 1969.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Theodore A. Gottfried and James J. Doherty, Assistant Public Defenders, of counsel), for appellant; Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane, Assistant State’s Attorney, of counsel), for appellee.
   Opinion by

JUSTICE BURKE.

Not to be published in full.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Sylvania Garrett, Defendant-Appellant.
    Gen. No. 52,179.
    First District, Second Division.
    October 7, 1969.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (James J. Doherty, Assistant Public Defender, of counsel), for appellant.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Kenneth L. Gillie, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE McCORMICK

delivered the opinion of the court.

The defendant, Sylvania Garrett, was indicted for burglary. He was tried by the court without a jury, found guilty and sentenced to five years in the Illinois State Penitentiary. From that judgment and sentence this appeal is taken. In this court the defendant urges that the trial court incorrectly ruled in denying his motion to suppress evidence, and that the defendant was not proved guilty beyond a reasonable doubt.

Some time between June 17 and June 20, 1966, several power saws, table saws and miscellaneous tools were stolen from the Chicago Dowel Company. One of the saws was traced to the basement of the building in which defendant lived.

The record shows that Sergeant Paschal of the Chicago Police Department’s Burglary Division received an anonymous call from a woman on June 20, 1966, informing him that she had seen two men remove a saw from a bumedout building, put the saw into an automobile and drive away. The caller gave the officer the license number of the automobile, which number proved to have been issued to one James Ford. When Sergeant Paschal went to had helped several men remove a saw from an abandoned Ford’s home at 5:00 p.m. that day, Ford told him he building earlier in the day, and Ford went with the officer to a building across the street from Chicago Dowel Company.

At the trial Ford testified that a man had asked him if he would like to earn $3 by helping move “something,” and when he agreed he met the defendant and another man. He further testified: “They explained to me that I could make $3.00 to haul something. They didn’t mention what it was, just a package, and I agreed. We proceeded to go where the package was located. I couldn’t recall the street by name. I parked and Garrett and another fellow got out and went out to get the saw. I didn’t see where they went to get it.” The witness stated that the two men brought a power saw back to his car and put it in the trunk, after which they directed him to take it to 43rd and St. Lawrence. There he backed into a driveway in the alley where the two other men took the saw out of the trunk of his car. The men told Ford to meet them later and they would pay him, but they did not come to the appointed place and he went home. Later, when Sergeant Paschal came to his home he went with him to the building where the saw was taken and identified the saw. He also identified the defendant as “one of the men that hired me to move that saw.”

The defendant’s testimony is that he was standing on a corner and saw Ford and another man talking; that one of the men asked the defendant if he would like to earn $10 by helping move a saw, and he agreed. Explaining how the saw happened to be placed in the basement of the building in which he rented a room, the defendant said:

“I didn’t tell Mr. Ford nothing. It wasn’t me doing the directing. The other fellow told Mr. Ford to drive to my home. I don’t know if the other fellow knew where my house was. I didn’t tell him. He didn’t drive directly to my home. He drove to a vacant lot. We did get to my home eventually. Mr. Ford did not know where my home was. Mr. Ford surmised where I lived. He most likely found it out of a clear blue sky; he picked this one, out of the whole City of Chicago, and said, ‘This is where I am going to drop the saw off.’ ”

The defendant’s story is unbelievably fantastic.

Sergeant Paschal testified that after Ford had pointed out the building where he was directed to pick up the saw and the building where he was directed to take it after it had been put into the trunk of his car, they met the owner of the latter building — Mrs. Wyatt — the defendant’s aunt. The officer told Mrs. Wyatt he had reason to believe there was stolen property on the premises, and she gave him permission to search the building. She personally cleared the way for entry into the basement by removing several dogs from the doorway and taking a lock from the door. Inside the basement was a 10-inch power table saw which Ford identified as the item which had been taken there from the abandoned building, and which was later identified by the president of Chicago Dowel Company as one which had been stolen. The saw was then taken by the police.

After his arrest, the defendant continued to deny that he had stolen the saw. At a pretrial hearing he moved to suppress the evidence of the saw found in the basement on the ground that it was obtained in violation of the Fourth Amendment rights of the defendant. The trial court denied the motion on the ground that the defendant lacked standing to raise the issue since he possessed no right of occupancy to the basement area; that his room was on the second floor and had never been entered by the police.

The Fourth Amendment to the Federal Constitution, and section 6 of Article II of the Illinois Constitution prohibit unreasonable searches and seizures. The exclusion of evidence obtained in violation of these provisions was developed in order to protect the rights of the accused. The Fourth Amendment rights of one incriminated by such evidence would be meaningless, and at the same timé the accused would be incriminated in violation of his Fifth Amendment guarantees. The exclusionary rule was developed in order to prevent this dilution of rights, and the practice was developed that the accused have “standing” to entitle him to invoke the protection of the Fourth Amendment. One had to show a possessory or proprietary interest in the premises searched or the property seized before he could be heard to urge exclusion of the particular evidence seized. However, in admitting the proprietary or possessory interest in order to obtain standing under the Fourth Amendment, one was often necessarily incriminating himself by admitting ownership. Thus the accused had to decide whether he should incriminate himself by admitting ownership in order to be able to argue his Fourth Amendment right, or remain silent, thereby foregoing his right, to avoid incriminating himself.

Jones v. United States, 362 US 257, offered relief from this dilemma by holding that when possession was itself an element of the offense charged, the accused was not required to allege a proprietary or possessory interest in the seized items. Nevertheless, he could challenge the constitutionality of the search and seizure. The Illinois Supreme Court, in People v. De Filippis, 34 Ill2d 129, 214 NE2d 897, said at page 135:

“. . . we see in the logic of that decision a requirement that the conventional concepts of standing must give way whenever it is necessary to prevent unfairness, and to secure to an accused both his constitutional protection against unlawful search and seizure and his protection against self-incrimination. Speaking on a more specific plane, we do not see in Jones a proscription that possession must be an element of the crime charged, but interpret its holding as applying whenever proof of possession is sufficient to convict.”

The court held that standing was granted to the accused because his possession of the items in question could have been a basis upon which his conviction could have been obtained.

We do not argue with these propositions, and we agree with defense counsel in the instant case that the reason given by the trial court for denying defendant’s motion to suppress was erroneous. The crime charged was burglary, and possession was an important element of the crime since the inference is allowable that one in recent, unexplained and exclusive possession of stolen property has committed the crime of burglary or larceny. Under such circumstances, the defendant was not required to assert a proprietary interest in the evidence before he became entitled to urge its exclusion. However, it is the trial court’s judgment which is reviewable, not the reasons assigned for the judgment.

In Campbell v. Powers, 139 Ill 128, 135, 28 NE 1062, the court agreed that the chancellor erred in his reasoning, but still held that the Appellate Court properly affirmed the chancellor’s judgment. The court stated:

“The entire showing made to the chancellor is in the record, and if, for any reason, the discretion should not have been exercised or the leave should have been denied, the action of the Superior Court in refusing the leave was properly affirmed. It is of the judgment of the court appellant is permitted to complain, and not of the grounds or reasons upon which the court founded its decision.”

This principle has been applied in criminal actions. In People v. Thomas, 15 Ill2d 344, 348, 155 NE2d 16, the Illinois Supreme Court found it unnecessary “to determine the propriety of the mistrial on the assumption that it was granted to protect the prosecution from unfairness. The record shows another basis for the action taken that in our opinion is sound.” (Emphasis supplied.) In the present case we are of the opinion that there is another sound basis sustaining the trial court’s judgment denying the motion to suppress.

In the case before us the only witness to testify at the hearing on the pretrial motion was the defendant, and his testimony merely detailed what happened at the time he was arrested. When asked whether the police made a search of his room he said he had heard that a search had been made of the first floor and the basement, and that the saw in question had been discovered in the basement. On cross-examination defendant said he rented and occupied a room in the building where the saw was found, but that he did not occupy the basement. He also said that when he was arrested Ford was with the arresting officer and that Ford had made a statement that “this is the man who I moved the saw for.” At this point in the trial the defense rested and closing arguments were made to the court before the motion was ruled on.

Both the State and the defense argued the point of defendant’s standing to raise a claim. The trial court agreed that the petitioner had no standing, and thereupon overruled the motion to suppress. In its brief the State argues that “the full record on appeal establishes the reasonableness of the police officer’s actions in searching the defendant’s home.” While this may be true, the point remains that when the trial court ruled on the motion it did not have before it the full record as it appears in this court. It had only the defendant’s testimony on the hearing which has been briefly set out.

It is true that this court cannot affirm a judgment which is before us for review on evidence which was not before the trial court when the ruling was made. This court must look only so far into the record as to place itself in the position of the trial court at the time of its ruling in order to see if there is some valid reason for the ruling of the trial court. Otherwise, the constitutional rights of the accused would be receiving less than their full due. However, we feel that there was an independent ground on which the trial court’s judgment should be sustained, and this basis existed in the record at the time the trial court made its ruling.

Under the statute, the burden is on the defendant to prove his case on a hearing on a motion to suppress. HI Rev Stats 1965, c 38, § 114-12 (b), provides in pertinent part:

“The motion shall be in writing and state facts showing wherein the search and seizure were unlawful. The judge shall receive evidence on any issue of fact necessary to determine the motion and the burden of proving that the sea/rch and seizure were unlawful shall be on the defendant .” (Emphasis supplied.)

When the defendant rested his presentation on the motion to suppress, it had completely failed to meet its burden, since he had presented no facts whatsoever from which the trial court could have concluded that there had been an illegal search or seizure.

In People v. McNeil, 99 Ill App2d 273, 240 NE2d 721, the defendant, who lived on the second floor at 2156 South Millard, had been convicted of armed robbery. The police had obtained a search warrant for that address and had found stolen furs in defendant’s apartment. The defendant did not object to the search, but did object to the introduction into evidence of stolen furs found at 2158 South Millard, on the ground that the police had no search warrant for those premises. After first referring to the statute on motions to suppress, the court said at page 280:

“Defendant failed to offer evidence on the circumstances of the recovery of the furs from 2158 South Millard. There is no evidence indicating any illegal search or seizure — from all that appears, the inhabitant of 2158 may have given his consent.”

We feel that the court’s statement in McNeil is directly applicable to the situation presented in the instant appeal. The defendant failed to introduce any evidence regarding the circumstances of the search and seizure of the saw, and so failed to meet his statutory burden of proof. On that basis the trial court could have correctly denied petitioner’s motion to suppress. However, it happened that information which subsequently came to the attention of the trial court would have thoroughly supported its decision to deny the motion, since it appears that the owner of the building did consent to the search of the premises.

The defendant next argues that the State failed to prove beyond a reasonable doubt that he was in recent, unexplained and exclusive possession of the items allegedly stolen. It is true that requisite criminal intent must be proved before a conviction can be obtained, but in a case involving burglary, intent may be established circumstantially. If the State can show the defendant is in recent, unexplained and exclusive possession of the proceeds of a burglary the law permits the inference that the defendant has committed the offense charged.

The important question in such cases becomes the matter of possession for purposes of raising the inference. The defendant argues that many people had access to the saw since other tenants moved in and about the building. From this argument we feel that the defendant shows he misconstrues the meaning of the word “exclusive” as it is meant to be used in the rule regarding possession. The fact that other people had access to the basement does not mean that the defendant did not have exclusive possession of the saw, since it could reasonably be determined from the evidence that the defendant had assumed the right to control the property. He helped move the saw to Ford’s car, and we find utterly incredible his account of how the saw came to be placed in the basement of the building in which he had a room.

The trial court apparently believed Ford’s testimony to the effect that he was directed to the building in which defendant lived and that the defendant and a third man took the saw from the car and placed it in the basement. The evidence shows that the defendant was the one who had the saw placed in the basement, and the fact that his possession of it at times was joint does not change the conclusion that his possession at such times was exclusive.

In People v. Reynolds, 27 Ill2d 523, 190 NE2d 301, the defendant was picked up as a passenger in a stolen car which contained goods recently stolen from a service station. In holding the evidence sufficient to sustain the defendant’s conviction for larceny of an automobile and burglary, the court said at page 525: “Evidence of recent, exclusive and unexplained possession of stolen property by an accused, either singly or jointly with others, may, of itself, raise an inference of guilt . . . .” (Emphasis supplied.)

Thus, “exclusive,” for the purposes presently under discussion, does not mean “sole”; rather, it means possession by one or a group. In People v. Strutynski, 367 Ill 551, 12 NE2d 628, the court said at page 554:

“To warrant an inference of guilt from possession of goods recently stolen, it must be shown that there was an actual personal possession on the part of the accused, either singly or jointly with others acting in concert with him, and such possession must be shown to be exclusive, although it may still be a joint possession.”

In the case before us, there can be no argument about recent possession, since the saw was discovered in the basement on June 20, 1966, and it was established that the burglary may have occurred as late as June 20 and no earlier than June 17, 1966. Defendant’s testimony that Ford just happened to stop in front of the building in which defendant lived, having no prior knowledge of the address, is unbelievable. We feel that defendant’s explanation was considered by the trial court and found incredible, and that defendant’s possession of the saw was not simply unexplained but was affirmatively explained in a manner highly damaging to defendant. Ford’s more believable account would have shown the defendant to be the one exercising authority over the moving and final placing of the saw.

Defendant’s argument that others had access to the saw is beside the point. Access to the place where the stolen goods are found is only one of many factors to be considered in determining whether the inference of guilt is overcome when the accused has been shown to be in recent, unexplained and exclusive possession of the stolen goods. The presumption is that the current possession is sufficient to raise the inference of guilt. The State is not required to trace each step from the time of the burglary until the goods are found in defendant’s possession.

Furthermore, this court will not close its eyes to common sense realities. The stolen property here involved was a heavy cumbersome saw requiring two men to move it. In People v. Malin, 372 Ill 422, 24 NE2d 349, the court said at page 428: “The circumstances and character of the goods, their salability, whether they are cumbersome or easily portable are also among the factors to be considered.” In the present case the saw was cumbersome and certainly not easily portable. It was not the kind of item which others were likely to interfere with, once it was placed in the basement. We find that the saw was in defendant’s recent, exclusive and unexplained possession, and the conviction should be sustained.

Defendant argues that the State failed to prove it was he who entered the premises of the Chicago Dowel Company and that the conviction should, therefore, be overruled, because a key element of the crime had not been proved; namely, defendant’s unlawful entry into the building with the intent to commit a felony or larceny therein. Forcible entry was adequately shown by the State’s evidence that a side door into the building had been broken and a lock forced open. This evidence, together with proof of goods missing from the factory, gives rise to the presumption that the building had been entered with criminal intent. One of the items stolen was soon found in defendant’s exclusive possession, as previously discussed. The inference that the defendant was guilty of burglary was justified by the record, and he was proved guilty beyond a reasonable doubt.

The judgment of the Circuit Court is affirmed.

Judgment affirmed.

LYONS, P. J. and BURKE, J., concur.


author: PRESIDING JUSTICE LYONS.

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Bobbie Satterfield, Defendant-Appellant.
    Gen. No. 53,105.
    First District, Second Division.
    October 7, 1969.
    Gerald W. Getty, Public Defender of Cook County, of Chicago (John E. Hughes, Norman W. Fishman, and James J. Doherty, Assistant Public Defenders, of counsel), for appellant; Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane, Assistant State’s Attorney, and Robert Kelty, Special Assistant State’s Attorney, of counsel), for appellee.
   Opinion by

PRESIDING JUSTICE LYONS.

Not to be published in full.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Carlos Rodriquez, Defendant-Appellant.
    Gen. No. 53,835.
    First District, Second Division.
    October 7, 1969.
    Gerald W. Getty, Public Defender of Cook County, of Chicago, for appellant; no brief for appellee.
   Opinion by

JUSTICE BURKE.

Not to be published in full.