author: MR. JUSTICE DAVIS

text:
    Roy C. Anderson, et al., Plaintiffs-Appellees, v. Long Grove Country Club Estates, Inc., et al., Defendants-Appellants. Long Grove Country Club Estates, Inc., a Corporation, Counterclaimant-Appellant, v. Roy C. Anderson, et al., Counterdefendants-Appellees.
    Gen. No. 68-101.
    Second District.
    June 23,1969.
    Rehearing denied July 30,1969.

      Snyder, Clarke, Dalziel, Holmquist & Johnson, of Waukegan, for appellants.
    Donald T. Morrison, Morrison and Nemanich, of Waukegan, and Warren M. Browning and A. E. Peterson, of Chicago, for appellees.
   MR. JUSTICE DAVIS

delivered the opinion of the court.

This is an action brought by the plaintiffs to recover damages for the alleged breach by the defendant of a contract for the sale of certain real estate. While there are several parties plaintiff and defendant, including corporate entities for purpose of the contracts in question, for the sake of simplicity we will refer to the plaintiffs as “seller” and the defendants as “buyer” without differentiating between the individual and corporate parties.

The matter was tried before the court without a jury. The court found that the buyer had breached the contract, and it awarded damages to the seller and dismissed the buyer’s counterclaim. The buyer then appealed to this court. The complex factual background, when reduced to the essentials necessary to an understanding of the issues and their determination, is as follows:

Some time in 1961, the buyer’s real estate firm received a listing from the seller for 337 acres of his land at a gross price of $2,500 per acre. The seller, who owned a total of 508 acres, had indicated to the buyer that he proposed to build a golf course adjacent to this land. Shortly thereafter, the buyer advised the seller that the asking price was too high and in a letter dated January 23, 1962, he outlined a rough draft of a proposal to the seller.

Under this proposition, the buyer would allow the seller to participate in the overall potential profit of the subdivision without losing his capital gain status or right to report the sale on an installment basis. He suggested that, with existing development costs, the break-even price on lots would be $5,000; that initially, lots not on the golf course would be offered at $5,000 and lots on the golf course at $6,000 to $7,000; and that after the subdivision was started, and the golf course available, the lots would sell at an average of $9,000.

The buyer explained in his letter that he arrived at the figure from the knowledge that a home builder is willing to pay from 20 to 25% of the total home value for the site; and that he estimated from the restrictions the parties had discussed, that home values would range from $40,-000 to $60,000. He stated that there was the additional unknown factor of what extra a homeowner would pay for a “golf course location.” From this, the buyer concluded that his estimate of average lot price was probably conservative.

The buyer pointed out that the draft of the proposed agreement had a base lot price of $2,000 to the seller, plus a 40 % bonus of that portion of the resale price over $5,000; and that based upon the anticipated average value of $9,000 per lot, the seller’s gross return would be approximately $1,070,000, or roughly, a quarter of a million more than his present asking price of $2,500 per acre. This letter was the genesis of the agreements to follow.

On April 30, 1962, the first of the agreements outlining the relationship of the parties was executed. This provided that the seller would sell 337 of his 508 acres to the buyer at a base purchase price of $640,000, assuming the land could be subdivided into 320 lots. The purchase price was to be paid as follows:

$15,000 on or before August 31, 1962 50,000 a « it December 31, 1962 285,000 « a it April 1, 1963 72,500 it a a April 1, 1964 72,500 it <t (6 April 1, 1965 72,500 u a it April 1, 1966 72,500 a a it April 1, 1967

In addition to the base price, the buyer was to pay to the seller, upon the resale of the lots, the additional sum of 40% of the gross sales price of each lot in excess of $5,000. The complete control of the resale was to be in the buyer, however, and no agency or joint venture was intended. The buyer was given the right to prepay any or all amounts, with certain limitations only in the year 1962. Title to individual lots was to be conveyed to the buyer as payments were made, at the rate of one lot per $2,000.

The buyer was to undertake the annexation of the property into the Village of Long Grove, and to assume all of the costs and obligations of subdividing the property. The seller’s only obligation in this regard was to obtain a survey so that accurate legal descriptions could be procured of the property which the seller was retaining, and the remaining property which was subject to the agreement.

The agreement further provided that upon completion of the platting, annexation into and zoning by the Village and the survey, an escrow would be entered into with the Chicago Title and Trust Company to implement the undertakings. Under the terms of the escrow, the monies to be paid by the buyer to the seller pursuant to the agreement were to go through the escrow; the title to the property was to be in Chicago Title and Trust Company, as Trustee, and it was to convey the lots out to the buyer, or his nominee, at the rate of one lot per $2,000 paid on the base purchase price; and in the event there was a default by the buyer, the title to the property still in the name of Chicago Title and Trust Company, as Trustee, was to be held or conveyed back to the seller. The agreement provided that if the buyer defaulted in any of the buyer’s undertakings and the same were not cured within 30 days, the seller would then have the right, upon notice to the buyer, to terminate all of the buyer’s rights, and all prior payments would be forfeited.

Another agreement was also executed on April 30, 1962, under which the seller recited that he proposed to develop the 171 acres, which were not sold to the buyer, as a golf club, and that it would be beneficial to both parties to develop the golf club and the residential subdivision simultaneously. The agreement provided that the seller would engage the golf course architect upon the initial payment of $15,000 being made, as provided in the contract of sale, and that the seller would commence construction on the golf course upon the payment of the December 15,1962, and April 1,1963, installments. Nothing was specified with reference to membership of lot owners in the club; however, it was stated that the buyer was to construct certain lakes on the land which he purchased; that the lot owners, adjoining the lakes for which the buyer paid the entire cost, would have the exclusive use thereof; and that the lakes, wherein the buyer shared the cost with the seller, would be available to golf club members, guests and invitees.

Thereafter, negotiations commenced with the Village of Long Grove which finally, in the fall of 1962, resulted in an agreement under which only 271 lots — as opposed to the contemplated 320 — could be developed on the subject property after annexation. This meant, of course, that the seller could anticipate receiving substantially less for his land. Also, he was advised that the golf course was going to cost at least $840,000, which was more than had been contemplated.

The parties then entered into new contracts in November of 1962, which were dated back to May 1, 1962. The new sales agreement stated that the base price was to be $840,000, rather than the $640,000 earlier agreed upon, and provided for an additional $200,000 payment to be made on or before April 1, 1968. The new contract specified that the 40% additional payments made by the buyer to the seller on the excess of resale price over $5,000 were to be credited against this last $200,000 payment. However, if the 40% payments exceeded the sum of $200,000, the surplus amount would be paid to the seller. Thus, the contract was for a guaranteed minimum of $840,000. The balance of the agreement was essentially the same as the one dated April 30,1962.

The second contract entered into in November of 1962 and dated May 1, 1962, related to the golf course and lakes — as did the second contract of April 30, 1962. The new contract provided that the buyer pay for the construction of all the lakes on the land purchased by him, except the north lake; and that the seller pay one-half the cost of that lake and have the use of the same as a water reservoir for the golf course. No other rights with reference to the lake were to be accorded to club members, except that the club was given permission to use the streets in the subdivision for the transportation of its equipment from the machinery sheds to the golf course. Nothing was said in the agreement regarding membership of subdivision lot owners in the club.

The escrow was established on November 20, 1962, and at the same time title was conveyed to Chicago Title and Trust Company, as Trustee. Since neither party wanted the other to act as beneficiary under the trust, Robert Ford, the seller’s attorney, was designated as the beneficial owner under the trust to act upon the joint direction of the seller and the buyer, unless there was a default, in which event, he was to act upon the direction of the party not in default, or upon court order.

The parties then embarked upon their undertaking. The seller built the golf club at a cost of over $1,000,000, and the buyer proceeded to sell lots. In the initial advertisements, the buyer apparently represented the lots as adjoining a new “private” club. The seller wrote the buyer immediately (January 18, 1963), advising the buyer that while he hoped to operate the golf course as a private club, it might not be possible, and that the club might be conducted as a daily fee course.

On August 15 and September 15, 1963, the seller again wrote to the buyer in regard to the latter advertising lots as including membership in a proposed private club, again cautioned the buyer that there was no assurance that this would be a private club and that in all likelihood it would be a daily fee or semiprivate club, and advised against advertising that lot owners would be given membership priority. The seller indicated that the club planned to open June 1,1964; that the lots sold and homes built in the subdivision could not support a club and that the advertising was harmful to the proposed club and to the seller. He suggested that the buyer correct his advertising and make no false statements with regard to the club..

In the meantime, the buyer had not made the payment of $285,000 which became due on April 1, 1963. On August 21, 1963, it was agreed that he could have until September 30, 1963, to make this payment and it was made in October of 1963.

On May 7, 1964, the parties again amended their basic sales agreement. They altered the method of paying the base price to the following:

$15,000 on or before November 15, 1962 50,000 66 « 66 January 15, 1963 285,000 6i a April 1, 1963 47,500 66 a a April 1, 1964 47,500 <6 a << April 1, 1965 47,500 66 a a April 1, 1966 47,500 <( 6i 66 April 1, 1967 300,000 66 66 66 April 1, 1968

In addition, three designated lots were to be conveyed to the seller. Certain other matters which are not pertinent here, were provided for in the contract.

During 1965, many difficulties developed between the parties, and it appeared that the buyer experienced financial problems. During the spring of 1965, the buyer owed the seller $7,400 by virtue of the 40% bonus payments which were unpaid. The buyer had suggested that he might wholesale or sell out all of the lots; the seller had requested an accounting, and had declined to direct the trustee to convey certain portions of the subdivision to the buyer. One of the lots which was to be conveyed to the seller under the amendment to the agreement, dated May 7, 1964, had not been conveyed to him by the buyer.

The $7,400 bonus payments were finally paid in July of 1965. Later, in the same year, additional lots were sold upon which bonus payments were due, but not paid by the buyer. These totaled approximately $10,000. The payment of $47,500 due on April 1, 1966 was not made. On March 30, 1966, the buyer had tendered $22,000 of this amount and submitted directions for conveyance to the buyer of lots to cover the $22,000 payment. This tender was not accepted.

During all of this time, the parties had discussed their differences and attempted to settle their disputes. A number of proposals were made, and while it appears that the buyer and the seller were near agreement several times, the contracts as reduced to writing were never acceptable to both parties. Shortly before this suit was filed, the attorney for the seller asked the buyer’s attorney if there was to be a contract or a lawsuit, and was advised that there would be a lawsuit. The seller then filed this suit on June 8, 1966, asserting a breach of contract.

After the suit was filed, the golf course was sold to a private club. More than a year after the suit was commenced, the buyer offered to pay the seller $95,000— the payments due April 1, 1966, and April 1, 1967; to repay the seller the amount advanced for taxes; to pay $22,000 representing the 40% bonus payments then due; and further offered to convey the one lot still not conveyed to the seller under the 1964 agreement. This tender was refused.

The trial court entered judgment and found that the buyer had committed a material breach of the contract in failing to pay the $47,500 due April 1, 1966; in failing to pay the seller the $10,000 due on the bonus payments, and in failing to convey the one lot to be transferred to the seller. The court further found that the buyer also failed to pay $47,500, which was due on April 1, 1967; that the remedy set forth in the contract as to forfeiture was permissive, and not exclusive; that the seller had no obligation in reference to a golf course — except to construct one, which was done; that there was no obligation to offer club memberships to lot owners or to operate the golf club for the benefit of such purchasers; that the purchase price of the lots to the buyer was $2,000 per lot, plus 40 % of the resale price in excess of $5,000; that 222 lots had been conveyed to the buyer and 64 of such lots had been conveyed by the buyer to third parties, leaving title to 158 lots in the buyer, most of which were subject to mortgage; that 47 lots still remained in trust, and that these should be treated as the property of the seller; that the seller had been damaged in the sum of $252,800 by the buyer’s breach of contract, plus the sum of approximately $22,000 on deposit by virtue of the 40% bonus payments owed to the seller on lots sold after the suit was commenced.

The court entered its order declaring that the sole right, title and interest in and to the 47 lots still held in trust and not yet conveyed to the buyer was in the seller. The court further entered judgment in favor of the seller in the sum of $252,800, plus the amount held by Chicago Title and Trust Company, as Trustee, on account of the 40% bonus on lots sold after suit was commenced; and also entered judgment against the buyer on its counterclaim.

The court explained the manner in which it determined the damage figure of $252,800: The unpaid purchase price on the lots conveyed by the seller to the buyer was the measure of the seller’s damage. There were 158 such lots remaining which had not been resold by the buyer. The seller had received the initial $2,000 payment per lot, and the unpaid balance was 40% of the resale price of each lot in excess of $5,000. The court concluded that the parties contemplated an average resale price of $9,000 on the lots; that the average sale price of the lots to third parties by the buyer had been in excess of $8,500 per lot, with the sale price generally increasing over the years. In considering all of the factors, the court determined that the damages for the unpaid purchase price should be predicated upon an average resale price of $9,000 per lot. The result, was that 40% of the $4,000 (excess over $5,000) totalled $1,600 per lot or $252,800 for the remaining 158 lots.

The buyer here contends that the trial court — by awarding damages and at the same time decreeing that those lots which had not yet been conveyed to the buyer by the trustee should remain the property of the seller— blended mutually exclusive and inconsistent remedies, one affirming and one disaffirming the contract; and that the judgment is thus erroneous, citing Wollenberger v. Hoover, 346 Ill 511, 543-545 inch, 179 NE 42 (1931); Morey v. Huston, 85 Ill App2d 195, 199, 200, 228 NE2d 544 (1967); Solomon Iron & Metal Co., Inc. v. Bradford, 33 Ill App2d 452, 455, 179 NE2d 697 (1962); 35 ILP, Vendor and Purchaser, § 151.

The seller counters that he did not declare a foref eiture or seek a rescission of the contract, but rather, that the buyer committed a material breach of the contract relieving the seller from further performance and entitling the seller to damages in the amount of the balance of the unpaid purchase price for the performance already completed by the seller.

We agree with the seller, and with the theory of the judgment as awarded by the trial court — the seller did not seek inconsistent remedies. At the time this suit was commenced, the contracts for sale between the parties were partially performed. Certain of the lots had been conveyed by the trustee to the buyer. Some of these lots had been reconveyed by the buyer to third parties; others, still owned by the buyer, had substantial encumbrances on them. As to these lots, it is apparent that the seller would not seek and could not obtain a rescission of his agreement. These were no longer available to be restored to him. The question of rescission, suggested by the buyer, is not present in the case; except, perhaps, that the contract at this point is divisible, at least to the extent that what amounts to a rescission is available as to a portion of the land, but not as to the remainder.

Thus, the trial court was of the opinion that the buyer had committed a material breach of the contract. The buyer’s financial problems are apparent from the record. It would be patently unjust at this point to require the seller to transfer all of his remaining land, subject to the agreement, to the buyer and increase the amount of his money damages accordingly. The increased money damages might or might not be collectible; the land might go to other creditors of the buyer, or encumbrancers; or the land might merely have to be foreclosed on by the seller to satisfy the increased damages. This appears to be the type of case where a partial rescission could be upheld merely because under the peculiar circumstances of the case it is essential to a just result. 17 Am Jur2d, Contracts, § 488.

There is, of course, another theory under which the trial court’s judgment was not inconsistent. If there was a material or total breach of the contract by the buyer, the seller had the right, under the circumstances, to forego further performance on his part and to seek recovery for damages already sustained. 17 Am Jur2d, Contracts, § 446; 4 Corbin on Contracts, § 946 (1951); 1954 Ill L Forum, 616. A material or total breach is a failure to do an important, substantial or material undertaking set forth in a contract.

The question of whether or not there was such a breach, sufficient to forgive future performance by the seller and to entitle him to damages already sustained, was a question of fact determined by the trial court, adversely to the buyer. We believe that the evidence as we have outlined it hereinabove was ample to support the trial court’s finding of a material or total breach, justifying the type of relief awarded, and we will not overturn that determination. The testimony was contradictory and we will not substitute our judgment, as to the credibility of the witnesses, for that of the trial judge who saw and heard them, and we will not disturb his findings unless they are against the manifest weight of the evidence. Mortell v. Beckman, 16 Ill2d 209, 216, 159 NE2d 63 (1959); Stahelin v. Board of Education, School Dist. No. 4, DuPage County, 87 Ill App2d 28, 43, 230 NE2d 465 (1967).

When a contract for sale is partially executed and there is a material breach by the buyer, the seller may refuse to make further conveyances under the contract, and may recover as damages the unpaid balance of the purchase price for those items already sold and delivered. W. H. Purcell Co. v. Sage, 200 Ill 342, 347, 65 NE 723 (1902); George H. Hess Co. v. Dawson, 149 Ill 138,145, 36 NE 557 (1894); Wabash Portland Cement Co. v. Bracey, 160 Ill App 18, 21 (1911).

The buyer devotes a good portion of his argument to the contention that there was a forfeiture evoked by the seller under the contract, and recites a number of principles that would then be applicable under the law and under the terms of the contract. It should be apparent that we do not view the action of the seller as seeking to work a forfeiture. The seller was not satisfied, under the circumstances of this case, merely to seek a forfeiture of the monies paid by buyer. Obviously, this would have been a severely inadequate remedy. A good portion of the land was resold or encumbered by the buyer. A substantial amount of the purchase price was yet unpaid because of the lack of resales by the buyer. It should be obvious why the seller did not invoke the forfeiture provisions contained in the contract. The forfeiture remedy provided for in the contract was not exclusive, and the seller had the right to seek any other legal remedy available to him. Dasher v. Bruno, 5 Ill App2d 500, 504, 505, 126 NE2d 404 (1955); 17 Am Jur2d, Contracts, § 522.

Thus, neither the principles recited by the buyer applicable to forfeiture, nor the notice requirement contained in the contract in the event the seller were to declare a forfeiture, are deemed pertinent by us. Whatever rights or interests were possessed by the buyer in those lots not yet conveyed to him, could have been protected by performing his part of the contract. The trial court, having found a material breach under the legal principles related above, had the right to declare that the lots not yet conveyed to the buyer could be retained by the seller. Indeed, the order of the court gave cognizance to the very purpose for which the trust, naming Robert Ford as beneficiary, was established. Under this trust, title was not conveyed to the buyer, but rather, was held by the trustee, for the purpose, among others, of securing the seller.

Much is made of the fact that the golf course was not constructed as a private club for the use of lot owners in the subdivision. However, every document relating to the golf course suggests just the opposite — that the golf course was not intended as a private club for the lot owners. The initial letter, wherein the buyer calculated the lot values, contained an estimate without considering the unknown evaluation effect of the golf course. That letter referred to the golf course “location” as perhaps adding value to the lots. None of the contracts suggests a tying-in of club membership and lot ownership. The letters from the seller consistently advised the buyer that the club and lots were not in any manner tied together. The action of the seller with regard to the golf course, which was in fact separate and apart from the land to be conveyed to the buyer, did not in any way justify or excuse the performance by the buyer, or lack of it.

The buyer also claims that the damages were excessive and that the seller got more under the judgment than he bargained for in his contract. We agree that the purpose of damages is to put the injured party in the position he would have been in had the contract been fully performed. 22 Am Jur2d, Damages, §§ 45, 46. The buyer states that with the money previously paid to the seller, the effect of the judgment is that the seller will receive $1,175,800 — $335,800 more than the contract price of $840,000. Assuming that the buyer’s figures are correct, several things are still ignored, viz.: (1), the contract did not anticipate $840,000 as the contract price, but rather, that this amount was the minimum, guaranteed amount; (2), from the very inception, the contemplated amount was expressed in terms of a resale price of the lots of $9,000, or as suggested in the buyer’s first letter, a return to the seller of $1,070,000; (3), the anticipated resale price appeared warranted from the actual experience and sales price of the lots, averaging in excess of $8,500 at the time of the suit; and (4), the buyer arrives at the figure of $1,175,800 by including therein, $9,000 for each of the 46 lots remaining in the seller, or a total of $414,000. Obviously, if the seller were to realize this amount on the lots, he would have to incur expenses in so doing.

The trial court based its decision as to damages on what it determined to be the unpaid balance of the purchase price on the lots conveyed to and held by the buyer. This was proper. W. H. Purcell Co. v. Sage, supra; Gray v. Meek, 199 Ill 136, 138, 139, 64 NE 1020 (1902); Wabash Portland Cement Co. v. Bracey, supra; 22 Am Jur2d, Damages, § 64. The evidence was sufficient to justify the court’s consideration of the factors it enumerated in determining the measure of damages.

The buyer also contends that the judgment of the trial court violates the rule set forth in Wilson v. Locigno, 259 Ill App 285 (1930): that, absent an acceleration clause, a seller may sue for installments only as they fall due. The buyer contends that the seller was not to be paid the 40% payments until the lots were resold. The difference in the two cases is that in Wilson there is a definite time set up for definite payments. That is not so in the instant case. After the $840,000 payment on the dates specified in the contract, the additional sums were to have been due, as the buyer states, on resale of the lots. The vulnerability of the buyer’s position is that subsequent to this litigation there may well be little to motivate the buyer to sell the lots for the best price obtainable. This undoubtedly was considered by the trial court in determining the form the judgment should take. Under the circumstances, the ultimate resale price of the lots may bear no relation to the judgment. If an unfair result arises from fixing a definite judgment at this time, it is the result of the peculiar factual background of the case. If someone must suffer slightly as a result, it is more just that it be the person committing the wrong, than the one wronged.

While the judgment was rendered on March 25, 1968, and as a result found the balance due to the seller, this balance still resulted in payments of less than the total $840,000 required under the contract to have been paid by April 1, 1968. From this point of view, for practical purposes, there was no acceleration.

Other points are mentioned by the parties, which to repeat at length, would unduly extend this already too lengthy opinion. The points relate to basic premises which are rejected by the court, as should be apparent to the parties from the position taken in this opinion. It would serve no purpose to detail them here.

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

Judgment affirmed.

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


source: Caselaw Access Project

author: MR. PRESIDING JUSTICE DAVIS

license: Public Domain

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Donald R. Weiss, Defendant-Appellant.
    Gen. No. 68-123.
    Second District.
    June 26,1969.

      Robert Jones, of Downers Grove, for appellant.
    William V. Hopf, State’s Attorney of DuPage County, of Wheaton, and Helen C. Kinney, Assistant State’s Attorney, for appellee.
   MR. PRESIDING JUSTICE DAVIS

delivered the opinion of the court.

The defendant, Donald R. Weiss, was charged with the offense of battery under section 12-3 (a)(1) of the Criminal Code (Ill Rev Stats 1967, c 38, par 12-3 (a) (1)). He was found guilty by a jury, sentenced by the Court to serve six months at the State Farm at Vandalia, and to pay a fine of $500 and court costs.

At the time of his arrest, the defendant was with Rudy Vasicek, whom he wanted to use as a witness in his defense. Vasicek was served with two subpoenas — one commanding him to appear on September 28, 1966, at the defendant’s trial, to testify on behalf of the People, and one commanding him to appear on December 12, 1966 to testify on behalf of the defendant. The case was continued several times and the trial actually commenced March 8,1967.

On appeal, the defendant suggests that it was the duty of the People to produce the witness, Vasicek, at the trial. The record indicates, however, that on October 31, 1966, the court entered an order that the witness be called as the court’s witness at the trial to be held on December 12, 1966, and that subpoenas be issued without charge to the defendant. When the first subpoena issued, Vasicek was in jail and was readily available for production as a witness by the People. At the time of the actual trial, however, he was under a later subpoena, and was free on bond. Thus, the circumstances under which the witness was called, varied from time to time as the case was continued and until it reached trial.

We believe that it is reasonable to infer under these circumstances that, when Vasicek was in jail, the court requested the People to make him available as a witness without the formality of a writ of habeas corpus ad testificandum. Later, when Vasicek was free on bond, he was subject to the customary subpoena by the party who desired to call him as a witness. The defendant did not call the court’s attention to the fact that the witness had failed to appear at the trial in answer to a subpoena until March 9, 1967 — the second day of the trial. The defendant then asserted that it was the duty of the People to produce Vasicek as a witness and moved for a continuance. The motion was denied by the court.

The motion for continuance is a pretrial motion under article 114-4 of the Code of Criminal Procedure (Ill Rev Stats 1967, c 38, par 114-4). Section 114-4 (a) provides that a continuance may be granted by the court, more than 30 days after the arraignment, upon motion made by the defendant, if the motion is supported by affidavit. Section 114-4 (b) (3) states that a “material witness is unavailable and the defense will be prejudiced by the absence of his testimony; provided, that this shall not be a ground for continuance if the State will stipulate that the testimony of the witness would be as alleged; . . . .” Subsection (e) thereof provides that all motions for continuance are to be addressed to the discretion of the court and should be considered in light of the diligence shown on the part of the movant; and subsection (f) specifies that after trial has begun á reasonably brief continuance might be granted to either side in the interests of justice.

The defendant did not seek a continuance at the commencement of the trial. He waited until the second day of the trial to move for a continuance and he did not support his motion by affidavit. Thus, he did not give the People an opportunity to stipulate that the testimony of the witness would be as alleged by the defendant. Under these circumstances, we cannot hold that the trial court abused the discretion granted to it by the statute. People v. Prochut, 27 Ill2d 298, 300, 301, 189 NE2d 290 (1963); People v. Clark, 9 Ill2d 46, 49, 50, 137 NE2d 54 (1956).

We do not believe that it was the burden of the People to produce Vasicek at the trial. Even though he was under a criminal charge, he was out on bond, and was not under the control or confinement of the People. There is nothing in the record which suggests that the State’s Attorney wilfully secreted the witness to prevent him from testifying. The mother of the witness was present at the trial and conferred with the defendant and his counsel. The defendant and the proposed witness were acquaintances. The defendant made no attempt to seek a continuance until the second day of the trial and after the People had presented all of their testimony and evidence. In the light of the lack of diligence shown on the part of the defendant in seeking a continuance, it would appear that the discretion of the trial court was not improperly exercised.

The defendant also contends that the State’s Attorney improperly made repeated references in his closing argument to the failure of the subpoenaed witness to appear and testify. The record indicates that the People waived opening argument. The defense counsel in his argument, then strongly implied that the People had deliberately prevented the witness from appearing. Under these circumstances, it was not improper for the People to propound their own theory as to why the witness was absent. People v. Hayes, 23 Ill2d 527, 532, 179 NE2d 660 (1962); People v. Cokes, 106 Ill App2d 139, 148, 245 NE2d 507 (1969); People v. Woodley, 57 Ill App2d 380, 388,206 NE2d 743 (1965).

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

Judgment affirmed.

ABRAHAMSON and SEIDENFELD, JJ., concur.


text:
    William F. Whittingham, et al., Plaintiffs-Appellants, v. Village of Woodridge, a Municipal Corporation, Defendant-Appellee.
    Gen. No. 69-54.
    Second District.
    June 26,1969.

      Edward J. Vertovec, of Elmhurst, for appellants.
    George J. Rohe, of Evergreen Park, and Rathe, Woodward, Dyer and Burt, of Wheaton, for appellee.
   MR. PRESIDING JUSTICE DAVIS

delivered the opinion of the court.

This is an appeal by the plaintiffs from an order dismissing Count I of their complaint which sought a declaratory judgment that an amendment to the zoning ordinance of the defendant municipality be declared unconstitutional. The trial court dismissed the complaint on the grounds that the plaintiffs were nonresidents of the defendant municipality and did not have the right or standing in court to contest the validity of its zoning ordinance.

Vincent and Sandra Russo owned approximately thirty acres of land in DuPage County, contiguous to the corporate limits of the defendant municipality, which had been zoned residential by the county. The Russos filed a petition for annexation to the defendant municipality, contingent upon an annexation agreement, which provided for a change in the zoning of this property.

Section 11-15.1-2, c 24, Ill Rev Stats 1967, relating to annexation agreements, provides in part, as follows:

“Any such agreement may provide for the following as it relates to the land which is the subject of the agreement:
U
“(b) The continuation in effect, or amendment, or continuation in effect as amended, of any ordinance relating to subdivision controls, zoning, official plan, and building, housing and related restrictions; provided, however, that any public hearing required by law to be held before the adoption of any ordinance amendment provided in such agreement shall be held prior to the execution of the agreement, and all ordinance amendments provided in such agreement shall be enacted according to law.

The plaintiffs alleged that pursuant to the petition and agreement for annexation, the Russo property was rezoned to multiple family and regional shopping district; that the plaintiffs’ properties are immediately adjacent to the Russo property and are not within the corporate limits of the Village of Woodridge, but are within the County of DuPage; that the plaintiffs’ properties are zoned R-l Residential and the Russo property, prior to annexation to the Village, was likewise zoned; and that the change from the previous R-l Residential zoning of the Russo property to the new zoning was an unreasonable and arbitrary act causing the plaintiffs substantial damage in the depreciation of their property values.

The parties have not cited an Illinois case directly dealing with the question of the right or standing of a person, not a resident of a particular municipality, to challenge the validity of a zoning ordinance of that municipality by a declaratory judgment action.

We believe that the controlling criteria on the question of whether one has standing in a court to challenge the zoning or use to which another’s property may be put, is that the party has the burden of proving that he suffered a special damage by reason of the change in the use or zoning — different from that suffered by the general public. Gamer v. County of DuPage, 8 Ill2d 155, 158, 159, 133 NE2d 303 (1956); Bullock v. City of Evanston, 5 Ill2d 22, 33,34,123 NE2d 840 (1955); Hughes v. City of Peoria, 80 Ill App2d 392, 394, 395, 225 NE2d 109 (1967).

In Gamer, two of the three plaintiffs attacking the validity of the zoning ordinance of the County of DuPage were not residents of the unincorporated county area, but rather, owned land and resided within the corporate limits of Naperville in DuPage County. However, the court treated the parties as properly before it, and the question of the standing of these plaintiffs to test the validity of the zoning ordinance of the county apparently was not challenged. The court’s only reference to the fact that two of the plaintiffs were owners of land not within the unincorporated area to which the zoning amendment applied was that this could be taken into consideration, along with other facts, in determining whether the special damage proven by the plaintiffs was different from that suffered by the public generally. Gamer v. County of DuPage, supra, 159.

We see no valid basis for limiting the standing to object to the zoning given another’s property, beyond the requirement that one must allege and prove that by reason of said zoning he has suffered a special damage, different from that suffered by the general public. If an invisible corporate limit line may be set up as a bar to the right of one to object to zoning, a person in an otherwise exclusively single family residential area presumably has no standing to object to zoning, immediately next door, for a gasoline service station, or any other incompatible use, as long as the property next door is across a corporate boundary line.

The defendant municipality asserts that the annexation agreement may not be questioned by the owners of property outside its boundaries. We believe that fundamental fairness requires that a property owner is entitled to more security in his property rights than that urged by the defendant municipality. In Pettigrew v. National Accounts System, Inc., 67 Ill App2d 344, 213 NE2d 778 (1966), at page 350 we stated:

“The procedural aspects of due process and equal protection of the laws require that a person be given notice and an opportunity to be heard and to defend in an orderly proceeding adapted to the nature of the case.”

Generally, it is conceded that the Village of Wood-ridge may independently exercise its governmental functions with reference to other adjacent corporate bodies and individual property owners not within its corporate limits. However, in amending a zoning ordinance and carrying out these functions, property rights of adjacent owners may be adversely affected, and this effect should be weighed and considered in determining whether the legislative act bears a proper relation to the public safety, health and welfare. Our courts have long held that consideration of the uses made of abutting property is proper in determining the validity of a given zoning ordinance, regardless of whether or not the adjoining property is within the corporate limits of the entity enacting the ordinance. Gordon v. City of Wheaton, 12 Ill2d 284, 288, 146 NE2d 37 (1957); La Salle Nat. Bank v. City of Chicago, 4 Ill2d 253, 257, 122 NE2d 519 (1954); Forbes v. Hubbard, 348 Ill 166, 176, 177, 179, 180 NE 767 (1932); Berger v. Village of Riverside, 69 Ill App2d 148, 153, 216 NE2d 479 (1966).

Section 11-13-14, c 24, Ill Rev Stats 1967, which relates to the procedure for the amendment of a zoning ordinance, provides that an amendment must have a favorable two-thirds vote if there is a written protest against the proposed amendment “by the owners of 20% of the frontage proposed to be altered, or by the owners of 20% of the frontage immediately adjoining or across an alley therefrom, or by the owners of 20% of the frontage directly opposite the frontage proposed to be altered.” The owners referred to in the statute are not limited to those within the municipality, and there is no reason for reading such limitation into the statute. The effect of the use made of land on adjoining property does not stop at corporate boundaries. Our legislature has recognized this, e. g., Ill Rev Stats 1967, c 24, section 11-13-1; Ill Rev Stats 1967, c 34, § 3151.

The boundary lines of municipalities are constantly changing. Those who are engaged in planning and developing the appropriate present use of, and use to be made of land, are not concerned with a thing so impermanent and imperceptible as a corporate boundary line, and, it is proper that they should not be.

The effect that a proposed zoning change may have on adjoining property will neither be diminished nor increased by the corporate boundary line. To permit a thing, so tenuous, to bar a party from objecting to a change in zoning, might in many instances permit the taking of property without due process of law. Pettigrew v. National Accounts System, Inc., supra, 351.

We believe that the desired orderly growth and expansion of municipalities, as well as the protection of one seeking a zoning change from a multiplicity of suits and the securement for him of a final determination of all controversies attendant thereto, are adequately safeguarded by the requirement that the objector must allege and show a special damage, different from that suffered by the general public, in order to challenge the zoning change.

For the reasons stated above, the order of the trial court dismissing Count I of the complaint is reversed and the cause remanded for further proceedings consistent with the views expressed herein.

Reversed and remanded.

ABRAHAMSON and SEIDENFELD, JJ., concur.


author: PRESIDING JUSTICE THOMAS J. MORAN

text:
    Darwin C. Rudd, Plaintiff-Appellee, v. Richard F. Sarallo and Lorraine M. Fik, Defendants-Appellants.
    Gen. No. 68-196.
    Second District.
    June 27,1969.

      Ancel, Stonesifer and Glink, and Stewart H. Diamond, of Chicago, for appellants.
    Thomas F. Pierce, of Chicago, for appellee.
   PRESIDING JUSTICE THOMAS J. MORAN

delivered the opinion of the court.

This case involves a controversy between the mayor and city council of the City of Oak Brook Terrace in Du Page County. At the time of the trial the plaintiff was the mayor of the city, the defendant Sarallo an alderman, and the defendant Fik, the city clerk.

In 1966 a controversy arose between the mayor and council concerning the appointment of the building commissioner. The mayor’s nominees were not approved by the council and the mayor periodically appointed acting commissioners. From January 1, 1967, until the commencement of this cause, the mayor himself approved the building permits issued in the city.

At the council meeting of July 23, 1968, one of the aldermen presented an ordinance for second reading and consideration by the council, which provided that thereafter requests for building permits would be directed to the city council’s committee on building and zoning, which committee would include the building commissioner and that the chairman of the committee would be empowered to approve or disapprove permits in lieu of the mayor. The mayor refused to permit a reading or consideration of the ordinance. A motion was made to appeal his decision and all four aldermen present voted in favor of the appeal. It is to be noted at this point that the city council of Oak Brook Terrace comprises six aldermen, four of whom were present at the meeting in question. Following the appeal, a motion was made to adopt the ordinance. Again the mayor refused to recognize the motion, but upon roll call being taken, the four aldermen voted to adopt the ordinance. The mayor took no subsequent action. He did not sign the ordinance and he did not veto it. Instead, he brought this action to enjoin the enforcement of the ordinance. Pursuant to the prayer of the mayor’s complaint, the trial court entered the injunction, holding that the mayor’s action in refusing to recognize the various motions was proper and that if he was wrong the remedy was an action against him for malfeasance in office.

The defendants brought the case to this Court raising these issues: (1) that the ordinance was properly adopted, and (2) that the ordinance is valid.

The ordinances of the City of Oak Brook Terrace covering the duties of the mayor and council relating to procedure, provide in part as follows: “The presiding officer shall preserve order and decorum and may speak to points of order in preference to other members, and shall decide all questions of order subject to appeal.” In addition, the city council has adopted Robert’s Rules to govern its procedure. We note from the ordinance itself that the mayor is not authorized to absolutely “decide all questions of order” but rather that his decisions are “subject to appeal.”

By statute the mayor presides at all meetings of the city council. He is not a voting member, however, and may only vote in three instances set forth in the statute. (Ill Rev Stats 1967, c 24, § 3-11-14.) If the mayor does not agree with a particular ordinance he has the power to veto (Ill Rev Stats 1967, c 24, § 3-11-18), but even if the mayor does veto an ordinance his veto may be overridden and the ordinance approved by a two-thirds vote of all of the aldermen then holding office. (Ill Rev Stats 1967, c 24, § 3-11-19.) Even if the mayor refuses or fails to approve an ordinance which was done in this case, the ordinance becomes effective despite the absence of his signature. (Ill Rev Stats 1967, c 24, § 3-11-18.)

The mayor’s position in this case is that he has sole power to determine whether or not an ordinance or motion is valid. If he determines that it is not valid, then it cannot be considered by the city council. We do not understand that position to be the law. Neither the mayor nor city council is supreme. Each has its rights and duties prescribed by statute; each has its limitations. Even if the mayor does not believe that a particular motion or ordinance is valid, it can still be considered by the city council. His remedy is not to refuse the right to consider but, rather, to veto the ordinance. Even in that event, if two-thirds of the aldermen favor the adoption of the ordinance, it is adopted. Though it may subsequently be proven in court to be invalid, the remedy is in the courthouse and not in the mayor’s office.

This precise point appears to be a first impression in Illinois and that may well be because it is to the benefit of all citizens for local officials to resolve their own problems rather than split the city apart by internal bickering. In the case of Hicks v. Long Branch Commission, 69 NJL 300, 54 A 568, 55 A 250, 251 (1903), the Court of Appeals of New Jersey held that the chairman, elected by his fellow commissioners, was only a presiding officer and, if a motion was duly made, he must recognize it. If he refused to do so, any member of the commission could put the motion to a vote. The Court expressly dispelled the theory that the only remedy for the commissioners would be to try the chairman for malfeasance and remove him from office. In the case of Attorney General ex rel. Andrews v. Remick, 73 NH 25, 58 A 871, 873-874 (1904), the mayor refused to submit a proposition to the council, left the platform and announced that the meeting was adjourned. Thereafter the council proceeded with the question at hand. The Supreme Court of New Hampshire upheld the right of the council and found that the mayor’s power was not absolute, but qualified, and that he was bound by the rules of procedure of the council. A similar result followed in Kaeble v. Mayor of Chicopee, 311 Mass 260, 41 NE2d 49, 51 (1942). In all these cases the mayor or chairman was elected first as a member of the board and then elected to his position by his fellow council members. That, of course, is not the case of the typical mayor in Illinois. We do not find this to be a distinguishing feature, however, because a mayor of a city under Illinois law does not have absolute power. He is bound by the ordinances of the city and among those ordinances are the rules of procedure of the city council. To that extent he is in no different position than anyone else. All are bound, including the mayor.

The only Illinois authority on the question appears to be the case of Golden v. City of Toluca, 108 Ill App 467 (1902). In that case an attorney who had revised the city ordinances had not been paid and sued the city to recover for services. The action was initiated when a motion was made at the council meeting to revise the ordinances. The mayor refused to put the motion, at which point the city clerk put the motion and called the roll. The Court held that the motion had not properly passed because the city clerk, who was not a member of the council, was not authorized to put the motion. The Court said at page 470: “There is no provision of the law that anyone else may preside when the mayor is present. ‘The functions of the presiding officer are as official as any part of the meeting of the board and cannot be exercised by one who is not a member/ ” In addition, it also appeared in that case that the council had not adopted any rules of procedure and, of course, the city clerk was not a member of the council. We believe the decision in the Golden case should be limited to the facts of that case. Since the time of that decision in 1902, almost every municipality has improved their procedure. They all have rules of conduct. The Golden case has never been cited by any Illinois court until today. The decision is narrow, covering the facts there presented. Those facts do not exist in this case.

The case of American Aberdeen-Angus Breeders’ Ass’n v. Fullerton, 325 Ill 323, 156 NE 314 (1927), concerned the validity of actions taken at an annual meeting of a private association. The president of the association, who was acting as chairman of the meeting, refused to permit a motion or appeal. The membership assumed control and transacted business. The Supreme Court held that this was proper. The Court said, “A presiding officer cannot arbitrarily defeat the will of the majority by refusing to entertain or put motions, by wrongfully declaring the result of a vote, or by refusing to permit the expression by the majority of its will. He is the representative of the body over which he presides. His will is not binding on it, but its will, legally expressed by a majority of its members, is binding.” Admittedly, that case does not involve a mayor and city council, but it seems to us that the principles announced correctly state the law.

As a practical matter, if the mayor has absolute power, then there is no need to have a city council. The system of checks and balances, which is the brilliant creation of our founding fathers, applies to the municipalities of this state as well as to the state and national government. That system prevents the untrammeled use of power and permits action to be taken when that action is agreed upon by a majority in a lawful manner.

We conclude, therefore, that the mayor had no power to refuse consideration of the ordinance. The ordinance was properly presented and duly passed.

The validity of the ordinance itself is challenged because it is argued that the ordinance vests a nonlegislative duty in a member of the legislative body, namely one of the aldermen. We note, however, that the ordinance does not purport to give the alderman any authority or any discretion in interpreting or enforcing the law. The law is adopted by the city council and the only remaining act is ministerial, that is, to grant the permit if the application complies and to refuse it if the application does not comply.

The ordinance in question does not vest executive authority in an alderman. It does not make him the building commissioner and he does not hold another city office by virtue of the ordinance. Ill Rev Stats 1967, c 24, § 3-4-3 provides, in part, “No mayor, alderman, city clerk or city treasurer shall hold any other office under the City government during his term of office . . . .” The word “office” as used in the Illinois Municipal Code is a word of art. It refers to a position held by a person who is an officer of the municipality by virtue of his appointment to that position. It does not include mere city employees but only officers and the holders of “office.” The fact that under this ordinance one of the aldermen may approve building permits does not make him the building commissioner and it does not make him an officer of the municipality for that purpose, nor did it make the plaintiff mayor an officer when he was issuing the permits under the prior ordinance. We note that under section 3-7-1 of the Municipal Code (Ill Rev Stats 1967, c 24, § 3-7-1), other than in the case of elected officials, it is the city council who establishes the “offices” of the city but they did not do so by this ordinance.

In the exhaustive treatise, McQuillin on Municipal Corporations, this matter is discussed and it is there provided that, “Municipal legislative bodies may reserve to themselves when they do so by an ordinance containing a rule or standards to govern them, the power to grant or deny licenses or permits,” section 25.217, McQuillin on Municipal Corporations.

Therefore, we conclude that the ordinance in question is proper. It does not vest any alderman with another “office” and does not violate any provision of the Constitution or the laws of this State.

The case is, therefore, reversed and remanded to the trial court with instructions to dissolve the injunction previously issued and dismiss the case.

Reversed and remanded with instructions.

ABRAHAMSON and DAVIS, JJ., concur.


text:
    Clyde Stewart, et al., Plaintiffs-Appellees, v. Main Insurance Company, Defendant-Appellant.
    Gen. No. 68-92. (Abstract of Decision.)
    Third District.
    July 8,1969.

      in part and reversed in part. Raymond, Mayer, Jenner & Block, of Chicago, for appellant; James V. Cunningham, of Peoria, for appellee.
   Opinion by JUSTICE RYAN. Not to be published in full.


author: MR. JUSTICE SEIDENFELD

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. John D. Dillingham, Defendant-Appellant.
    Gen. No. 68-186.
    Second District.
    June 30,1969.

      Carbary, Carbary and Chapski, of Elgin, for appellant.
    William V. Hopf, State’s Attorney of DuPage County, of Wheaton, and Ralph J. Gust, Jr., Assistant State’s Attorney, for appellee.
   MR. JUSTICE SEIDENFELD

delivered the opinion of the court.

This appeal questions the propriety of a conviction of the offense of driving while license suspended (111 Rev Stats 1967, c 95%, § 6-303) in DuPage County after a plea of guilty and judgment of conviction of the same charge in Kane County.

Defendant claims that the judgment below was in error because it constituted a successive trial for the same offense against the State within the bar of either the constitutional provision against double jeopardy (Ill Const, § 10, art 2) or a similar statutory provision of Ill Rev Stats 1967, c 38, 3-4 (a) (1) prohibiting a subsequent prosecution based on the same facts as a former prosecution.

The issue narrows to the question of whether the acts charged in each county were part of a single, continuous offense, as the State agrees that, after judgment, such offense cannot be again prosecuted. The State urges that the defendant has the burden of proof to show the singleness and continuity of the offense and that he has not sustained that burden on the record.

Defendant was operating a motor vehicle in Elgin, Kane County, Illinois, on April 21st, 1968. The record does not show the exact time such driving was commenced, nor the exact time the Elgin police saw the defendant driving.

An effort was made by the Elgin police to cause the defendant to stop his vehicle because the manner in which defendant was driving had come to their attention. Defendant eluded the Elgin police by proceeding from Elgin onto the Northwest Toll Road in an easterly direction at a high rate of speed.

Trooper Wills of the DuPage County police testified that within minutes after the Elgin police car began pursuit he was aware of the situation from a radio report, although he wasn’t involved in the chase at that particular time. Some time thereafter he was informed by radio that the Elgin car had lost defendant on the Tollway, and was advised to try for an intercept on Route 59 as this was the next exit. The witness moved into a position on Route 59. He observed the defendant coming south on Route 59 behind a stream of cars, running normally, and as the defendant passed the squad car the witness flashed his light, and defendant “floored it.” The chase continued for approximately five miles at speeds which, at times, exceeded 100 miles an hour. At approximately 5:15 the witness intercepted defendant in a cornfield and issued the ticket.

The arresting officer was of the opinion that, from the time he first heard the report on the radio to the time he apprehended defendant, it was “approximately a half hour, just guessing, I mean.”

The defendant did not testify.

The trial court based its denial of a motion to dismiss on the theory that when the defendant was first confronted by the Kane County authorities, cessation of driving at that time was mandatory, and defendant, by his own acts of continuing to drive in his attempt to elude the authorities, thereby committed a new and separate offense.

While a mandatory duty to cease driving when confronted by police is a realistic standard for a unit of the offense of eluding police, it is irrelevant to the violation of driving on a suspended license as the defendant was under a mandatory duty to cease driving during the entire time he was operating his automobile regardless of any intervention of the police.

The charge of driving while license suspended requires proof of the act of driving and the fact of the suspension of the driving license. The existence of two offenses is dependent upon the violation of a severable duty.

There can, of course, be separate convictions in separate counties, or even in one county, for the offense of driving with license suspended if the elements of the offense are present under circumstances which are legally separate and distinct, namely two separate acts of driving, which are not part of a continuing venture.

Unfortunately the statute (Ill Rev Stats 1967, c 95%, § 6-303) does not clearly define the unit of the offense of driving with license suspended and we must look elsewhere for a definition of what is considered a separate and distinct offense under the statute.

In the early case of Armour Packing Co. v. United States, 153 F 1, 5-6 (1907), and later in United States v. Midstate Horticultural Co., 306 US 161, 83 L Ed 563, 59 S Ct 412, 414 (1939), a continuing offense was defined:

“A continuing offense is a continuous, unlawful act or series of acts set on foot by a single impulse and operated by an unintermittent force, however long a time it may occupy.”

While relevant, factors such as time and distance are not dispositive, and the issue of whether an offense is “continuous” must be determined in the context of the particular offense at hand. Armour v. United States, 28 SCt 428, 433 (1907).

In the offense of driving while license suspended, . . . “the particular distance the defendant may have driven ... is immaterial as far as the commission of the offense is concerned.” People v. Jensen, 24 Ill App2d 302, 314, 164 NE2d 228 (1960), affirmed in 21 Ill2d 52, 54,171 NE2d 16 (1961).

Whether the defendant stopped driving and then began again should not be dispositive of whether the offense was continuous. The question of whether the previous venture was terminated in a real rather than a merely technical or artificial sense would seem to provide a more meaningful test of singleness and continuity.

The distance between the point on the Northwest Tollway where the defendant was last seen by the first policeman and the point on Route 59 near Interstate 190 where the second policeman first spotted the defendant is somewhere between 20 and 25 miles. From the evidence it is clear that the defendant resumed a normal speed at some time during the unaccounted for period while he travelled that distance, and with an outside limit of 30 minutes to cover the entire distance more than a brief stop would have been impossible.

Although a physical stop by the defendant during that time would have been possible and it is probable that he stopped for a signal or a stop sign or to pay a toll, it seems improbable that the original act of driving was terminated and begun again in a sense that would destroy the continuity of the offense. See Boyle v. State, 241 Ind 565, 170 NE2d 802, 807, 173 NE2d 747 (1960).

While the State urges that since the time lapse has not been established and the fact of a possible stop has not been precluded, therefore, defendant has failed to sustain his burden of proof of an affirmative defense, we are not so persuaded under the particular facts of this case. Where the legislature has not explicitly stated the unit of an offense, the doubt will be judicially resolved in favor of construing a single transaction as a single offense. Gore v. United States, 357 US 386, 2 L Ed 2d 1405, 1409, 78 S Ct 1280 (1958); Bell v. United States, 349 US 81, 99 L Ed 905, 75 S Ct 620, 622 (1955).

We feel that the doubt must be resolved in the defendant’s favor. In a real, as opposed to a technical or artificial, sense the driving engaged in by the defendant from the time he was first sighted by the Kane County Police until apprehension by the DuPage County Police was a continuous venture.

In our view, this is a case in which an offense against the State — not one against a County — has been committed partly in one county and partly in another and the prosecution and the trial should have been only in the county first acquiring jurisdiction.

We, therefore, reverse.

Reversed.

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


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Edward Thomas Aarhus, Defendant-Appellant.
    Gen. No. 69-14.
    Second District.
    June 30,1969.

      John T. Beynon, Public Defender, of Rockford, for appellant.
    Philip G. Reinhard, State’s Attorney of Winnebago County, of Rockford, and John Tower, Assistant State’s Attorney, for appellee.
   MR. JUSTICE SEIDENFELD

delivered the opinion of the court.

Defendant appeals from a judgment of conviction of murder, and from the 14- to 20-year sentence imposed thereon, after a jury verdict.

In support of his claim of errors sufficient to require a reversal and a remand for a new trial, defendant urges that a statement of the deceased was improperly introduced as a purported dying declaration, and that he was not proven guilty of murder beyond a reasonable doubt upon his introduction of evidence of justifiable use of force in self-defense. Defendant further urges that his motion for a directed verdict at the close of the People’s case was improperly denied, and claims procedural errors in the order of proof.

On April 21st, 1968, Eddie Crooks appeared in the doorway of the office on his used car lot. Donald Hampton, a witness for the State, testified:

“I noticed he hesitated for a moment, a second more or less. His face was real white. And the light reflection on his shirt, it appeared to be red. And I took it for granted at the time he had a red shirt, which I’m not sure of. But it appeared to be wet when the sun reflected on it, and he was acting kind of funny. He was standing erect, kind of stiff like, and staring right directly ahead.
“He proceeded down the steps. He was putting his hands on the side of the doorway. Walked [of] stiff legged down the steps. I was still in my car at this time watching, because I thought it looked like he might be sick or something. So just as he stepped off the bottom step on a little concrete landing, his knees buckled. His knees came towards the direction I was in. He fell backwards. And his head happened to strike one of the steps. . . .”

The witness further testified that Crooks was on his back and that he went up to him, saw that there was blood all over his shirt and called for a Mr. Robbins, who was in the vicinity, to call an ambulance. However, Robbins did not seem to know what Hampton was saying, so Hampton rushed into the office and made the call while Robbins rushed over to where Eddie Crooks was lying.

Carl Robbins testified (first out of the presence of the jury, and thereafter in the jury’s presence):

“I told him, I said, ‘Just take it easy, Eddie, I got an ambulance on the way.’ And he said, ‘Tell them to hurry,’ he said, ‘I’m hurting bad,’ he said,
T don’t think I’ll make it this time.’
<<
“I said, ‘Who did this to you?’ And he said, ‘Big Ed, the mailman.’ And that’s all that was ever said.”

Dahlin, a Rockford Police Sergeant, answered the call and arrived at the scene within two or three minutes. He testified:

“Well, I went up to the individual laying on the sidewalk with his head laying on the stoop. And I says, ‘What happened’? He says, ‘I’ve been shot.’ I says, ‘Where ?’ And he says, ‘In the chest.’ He had his hand on his chest.
“And I says, ‘Well, take it easy,’ I said, ‘The ambulance is right behind me.’ And I said ‘Who shot you ?’ And he said, ‘Ed Aarhus.’ I said ‘Who ?’ He said ‘Big Eddy the mailman.’ ”

At that time two other officers arrived and he again asked Crooks, in their presence, who shot him and he answered “Eddie Aarhus, Big Eddie, the mailman.” They placed the wounded man on a stretcher as the ambulance arrived and he was sent to the hospital.

Pathologist, Dr. Joseph Hosek, testified that Crooks had been pronounced dead at 10:10 p. m. on April 21st, 1968, at the hospital. In connection with the autopsy, the Doctor testified that on an external examination he found a bullet wound in the lower chest at the midline, the upper portion of the abdomen, just below the breast bone. There was a hole in the back of the heart, a hole through the lower portion of the right lung, and the bullet was found in the right lung near its outer part. The hole in the heart had been sutured and it appeared that at the time of the surgery the damaged part of the heart broke open and the deceased had a massive hemorrhage, causing the heart to stop some two hours before the pronouncement of death.

It appears from the records that the deceased was brought to the hospital at 4:55 p. m., that surgery began at approximately 7:37 p. m., and that the cardiac arrest took place shortly thereafter.

It was brought out in the State’s case that on the prior date of April 6th, there was a wild ride in the late night hours in which the victim, the defendant, and other persons participated. Evidence was introduced to show that the defendant threatened the victim during that ride, which culminated on a lonely country road; and that defendant, in a hiding place in the weeds by the side of the road, fired a shot at the group of persons who had followed in another car.

On cross-examination of the State’s witnesses, it was developed that the wild ride was preceded by a gambling card game in a local motel in which a number of persons participated; that this was merely one of several gambling sessions and ended with the defendant demanding all of the money, using a gun and saying he had been cheated. After the defendant took all of the money from the card game, being in excess of the amount he had lost that evening, the parties left the motel and rode back together to the place where defendant left his car. At this point Eddie Crooks, the deceased, took over the driving of defendant’s car and was followed by another car in which other participants of the card game rode. There was evidence of a threat to the deceased by the defendant when the car was stopped on a side street in Rockford. It was generally agreed that the defendant fled his car when it stopped out in the country, hiding in the weeds from those in the car following; and that the victim Eddie Crooks, left the Aarhus car and returned to the car in which his friends followed. There was a discrepancy as to the number of gunshots fired at the scene, but all agreed that shots were fired.

Patricia Dunn, a “car hop” at a Drive In Restaurant located near the used car lot, saw the defendant and Crooks together at the Drive In during the afternoon of April 21st, 1968. She testified that they seemed friendly and were joking freely.

There was testimony of the officers who investigated the scene that they searched the office and desk drawers for a gun and also the area outside the building and that no weapons were found. They also examined the inside of the office building and found blood on the swivel chair behind the desk.

After his motion for a directed verdict was denied, the defendant testified. He confirmed the April 6th incident with some variations, claiming that he shot his gun up in the air when he was in the weeds and that there was a shot fired at him from the car. He denied the threat to the victim.

Defendant testified that during the next two weeks after the April 6th incident there were several threats made against him, that his house was under surveillance; and that he was followed on his mail route. He became so frightened that he fled for his safety to Wisconsin, and upon his return to Rockford and to work, the surveillance continued. On the Sunday of the shooting in question, the defendant testified that Eddie Crooks flagged him down in his car and that Crooks joined defendant and they rode around a bit and stopped at the Drive In. Defendant said he refused to accompany Crooks to meet the others, but did go with the victim to his place of business trying to learn from Crooks who was seeking to kill the defendant. The victim made two phone calls and when he reached toward a drawer in his desk where the defendant had formerly seen a gun, he testified defendant shot him with a gun he had been carrying in a brown paper bag because he feared for his safety.

Defendant argues that it was error to admit the statement of Crooks as to who shot him, without more proof that the victim knew or thought he was dying. But the principal emphasis of defendant’s argument is in the claim that the court did not rule on the trustworthiness of this statement to qualify as an exception to the hearsay rule as a matter of law, but erroneously passed that burden on to the jury.

The law with respect to dying declarations has become well settled. People v. Corder, 306 Ill 264, 275-6, 137 NE 845 (1922) :

“It is not necessary that the deceased actually be at the point of death or that the statement be made at the time deceased is breathing his last. Dying declarations are such as are made by a party relating to the facts of the injury of which he afterwards dies, under the fixed belief and moral conviction that his death is impending and certain to follow almost immediately, without opportunity for repentance and in the absence of all hope of avoidance; when he has despaired of life and looks to death as inevitable and at hand. (Starkey v. People, 17 Ill 17; People v. Buettner, 233 id. 272.) While the wounded person must think that death is due to follow immediately and that there is no hope of recovery, it is immaterial if he is mistaken in this belief and death does not follow for some time. If the declaration is made under the belief of impending death, when every hope of recovery is gone, it is competent, although contrary to his expectation he lives many days afterwards. (People v. Cassesse, 251 Ill 422; Kirkham v. People, 170 id. 9.) Whether statements made by wounded persons are dying declarations must be determined by the court upon preliminary proof, and if the proof satisfies the court, beyond a reasonable doubt, that the declaration was made in extremity and was, in fact, a dying declaration, it should be admitted in evidence. (People v. White, 251 Ill 67.)”

The belief of a dying man and not the belief of those around him furnishes the guarantee of truthfulness that makes his dying declaration admissible. People v. Odum, 27 Ill2d 237, 244, 188 NE2d 720 (1963).

We believe that the trial court acted correctly. He held a hearing outside of the presence of the jury to determine the competency of the statement: “Tell them to hurry, I’m hurting bad. I don’t think I’ll make it this time.” Under the circumstances, including the location and nature of the wound and the description of the victim’s acts just prior to making this statement, the words sufficiently import the necessary belief that death was at hand, so as to import verity and trustworthiness to the victim’s words, and in fact the victim died within a few hours thereafter from the wound.

Defendant’s argument that the court did not rule on the statement as a matter of law is not supported by the record. While the court, in ruling on the hearsay objections, said:

“That is a question for the jury to determine what he said. I’m going to admit it into evidence,”

it is clear from the context of the court’s prior remarks that he would not allow the statement to go to the jury “if they (the State) can’t establish it as a dying declaration, which makes it competent . . . .” When the court admitted the statement after having first held a voir dire examination of the proof outside of the presence of the jury, it is clear that the reference to the jury is to its role in determining the credibility of the witness’s testimony. After the preliminary determination of the competency of a purported dying declaration, it then becomes a question for the jury to determine as to what weight should be given to the declaration. People v. White, supra, 75 (1911).

Defendant makes some point in his argument that the witness, Carl Robbins, had to be refreshed by his statement before he recalled the declaration of Crooks “I don’t think I’ll make it.” This occurred at the preliminary hearing and was brought out in the cross-examination of the witness by the defendant’s attorney at the trial below. The argument goes to the credibility of the witness and not to the competency of the statement.

A further point is made that the document used to refresh the witness was not furnished to defendant’s counsel at the preliminary hearing. However, it was furnished to him at the trial and he had the opportunity to use it if it had been impeaching, so that no prejudice is shown.

The defendant also argues that he was prejudiced by the fact that the State was permitted to introduce evidence in regard to the dying declaration prior to any proof that the victim died of wounds inflicted in a criminal manner. We find no merit in this contention. In a murder case the corpus delicti includes the fact of death and the fact that death was produced by the criminal agency of some person other than deceased, but it is not essential that the corpus delicti should be established by evidence independent of that which tends to connect the defendant to the crime. People v. Nachowicz, 340 Ill 480, 495, 172 NE 812 (1930). The order in which testimony shall be admitted is largely in the discretion of the trial judge. It has been held, for example, that a confession may be introduced before corpus delicti is established. People v. Hauck, 362 Ill 266, 272-3, 199 NE 821 (1936). No manifest abuse of discretion exists in this record.

Defendant’s contention that the trial court erred in denying his motion for directed verdict at the close of the People’s case has no merit. The motion was waived when the defendant introduced evidence after his motion had been denied. People v. Washington, 23 Ill2d 546, 548, 179 NE2d 635 (1962); People v. Cross, 40 Ill2d 85, 90,237 NE2d 437 (1968).

We next consider whether the defendant has been proven guilty of the crime of murder beyond a reasonable doubt in view of the evidence introduced by him in self-defense.

Under the Criminal Code (Ill Rev Stats 1967, c 38, § 7-1), the use of force in self-defense which is likely or intended to cause death or great bodily harm is justified only when the person using said force reasonably believes that its use is necessary to prevent great bodily harm or imminent death to himself.

Defendant builds his argument that he was not proven guilty of murder beyond a reasonable doubt by a comparison of various sections of the Criminal Code (supra, §§ 9— 1(a)(1), 9-2 (a) and (b), 3-1, 3-2 (a) and (b), 4-4, 7-1, 7-10 and 7-14), concluding:

“In other words, it is submitted that Section 9-1 (a) (1) is delimited by Section 7-1 which is a codification of the law of self defense prior to 1961; and Section 9-2 (b) is an exception to the definition of justifiable use of force. It allows the jury to decide upon the reasonableness of the belief of the defendant but only in the concept of the criminal responsibility for murder. Under the record developed in this case, there could be only one question of fact for the jury to decide — the reasonableness of the belief of the defendant. If they found it to be reasonable, it exonerates and an acquittal must result. If they found the belief unreasonable, a verdict of guilty could result but guilty of voluntary manslaughter, not of the murder charge. In this sense Section 9-2 (b) becomes a defense against murder for that set of facts and circumstances weakens both the intent and without lawful justification elements of Section 9-1 (a) (1) so that they are not provable beyond a reasonable doubt.”

It is true that under the Criminal Code, when the issue of self-defense is interposed by the introduction of “some evidence,” the burden devolves upon the State to prove beyond a reasonable doubt that the act was criminal. However, the jury is not bound to accept defendant’s exculpatory statements as true even in the absence of directly contradicting evidence by other witnesses. People v. Warren, 33 Ill2d 168, 174, 210 NE2d 507 (1965); People v. Hobbs, 35 Ill2d 263, 268-9, 220 NE2d 469 (1966).

In this case the jury was not obligated to believe the defendant’s testimony that he had seen a gun in the desk drawer of the victim on a prior occasion, particularly when this was in no way corroborated and the evidence was that no gun was found in the desk drawer, or anywhere else in the office. Under the various facts and circumstances in the record, the jury could well have found that the defendant’s belief that he had to shoot the victim to protect himself was unreasonable in view of all of the facts in the record, including defendant’s own testimony that he was getting along with the victim on the day of the shooting and was not afraid of him. It is also in evidence that Crooks was trying to help the defendant just prior to the shooting. While defendant suggests that the circumstances support his theory of self-defense, the supporting evidence relies primarily upon his own testimony at the trial, of which the jury may always believe as much or as little as they please. People v. Warren, (supra, at p 174).

Defendant argues that the proof to support the charge of murder is weak and unsatisfactory because the “why” of the killing was not shown in the evidence. However, to justify a conviction of murder, it is not necessary that the defendant had formed an intent to kill. It is sufficient to show “that he voluntarily and willfully committed an act, the direct and natural tendency of which was to destroy another’s life.” People v. Davis, 35 Ill2d 55, 61, 219 NE2d 468 (1966).

On the conflicting evidence, it was for the jury to decide, under proper instructions, whether the homicide was murder or manslaughter, or whether it was justified under the principle of self-defense. People v. Davis, (supra, at p 61). In this case the jury was properly instructed as to the range of its verdict, and we cannot say that the determination of the jury in this regard was so unsatisfactory or improbable to justify our conclusion that the defendant was not proven guilty beyond a reasonable doubt. We believe that the evidence justifies the verdict.

We, therefore, affirm.

Affirmed.

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


author: JONES, J.

text:
    The Abraham Lincoln Memorial Hospital Corporation, an Illinois Not-for-Profit Corporation, Plaintiff-Appellee, v. Alvin B. Gordon, Defendant-Appellant.
    Gen. No. 10,988.
    Fourth District.
    July 15,1969.

      Woods and Thompson, of Lincoln (Roger W. Thompson, of counsel), for appellant.
    Harris & Harris, of Lincoln (Homer B. Harris, of counsel), for appellee.
   JONES, J.

Plaintiff-hospital filed a Small Claim complaint against defendant for hospital services rendered to defendant’s wife. The case was tried without a jury and the court found for the plaintiff and entered judgment for $369.05 from which defendant has appealed.

Plaintiff and defendant were both represented at the Small Claim hearing by counsel. It was stipulated that hospital services were rendered to Mrs. Elizabeth Gordon at the plaintiff-hospital between her admission on January 8, 1965, and her discharge on January 19, 1965, and that the reasonable value of the services rendered was $369.05 which was unpaid; that at the time these services were rendered the defendant and Elizabeth were husband and wife and that Mrs. Gordon was deceased at the time of the trial. The defendant introduced records from the hospital showing that the defendant’s wife was admitted in a comatose condition by a Mr. Marvin Dixon who gave the patient’s name as Elizabeth Dixon and who represented himself to be her husband and agreed in writing to pay for the services to be rendered. The following day, when Mrs. Gordon was able to talk, she informed the hospital staff that she was still married to defendant but was separated from him. Defendant testified in his own behalf that he was married to Elizabeth Gordon but was not living with her, that she was living in Lincoln, Illinois, and he was living in Atlanta, Elinois, that it had been almost thirteen years since he had last lived with his wife, and when asked for an explanation of the circumstances of the separation stated “she just got up and left” and that he did not give her any reasonable cause or provocation for leaving and he did not thereafter at any time resume cohabitation with her. Defendant also stated that he at no time agreed to pay any of her bills, was never notified that his wife was in the hospital, and never agreed to pay plaintiff for the services rendered. Upon cross-examination defendant admitted he was not entirely sure when he and his wife separated and admitted that in November, 1953, he appeared in court and paid a fine on a charge of assaulting his wife. Defendant volunteered the statement that he had been in court many times to pay fines “for drinking — one thing and another.” He admitted that he “had been arrested and paid fines for various reasons while he was living with his wife” and some of the fines were paid as a result of arguments he had had with his wife, and that he “drank a bit everyday. Drinking will creep up on you just like anything else.” Defendant also testified that he and his wife had been divorced and remarried but he could not remember the date of either event. He was unsure of the dates and occasions upon which he had paid the fines.

The factual situation of this case is anything but new to Illinois courts. In Ross v. Ross, 69 Ill 569, the Supreme Court states:

“The husband, by the common law, is bound to provide his wife with necessaries suitable to her situation and his condition in life. As proceeding from this general duty, the common law courts have held that if the husband abandons his wife, or they separate by consent, without any provision for her maintenance, or if he sends her away, he is liable for her necessaries, and he sends credit with her to that extent. 2 Kent’s Com 146-7; Evans v. Fisher, 5 Gilm 569. In that case this court fully recognized the rules of the common law, in this language: ‘The husband is not responsible even for necessaries furnished the wife, when residing apart from him, if she left him without good cause and against his consent. But if the separation was caused by improper treatment on his part, or he assented to or acquiesced in it, he is liable for her necessary support, and to that extent she has credit on his account in the community.’ ”

The same rule in varied statements has persisted through many cases. For instance, in Wilson v. Bishop, 10 Ill App 588, the court states the rule as follows:

“While it is true that a husband is not responsible, even for necessaries furnished his wife while residing apart from him without his consent, and without good cause, still, if the separation is caused by improper treatment on his part, such as would justify her in leaving his bed and board, he is liable for her necessary support, and to that extent she may avail herself of her common law remedy, of obtaining such support on his credit. Ross v. Ross, 69 Ill 569; Schnuckle v. Bierman, 89 Id. 454; Bevier v. Galloway, 71 Id. 517; Rea v. Durkee, 25 Id. 503; Love v. Moynehan, 16 Id. 277. The sufficiency of the grounds for a separation, is a question of fact for the jury.”

See also McClary v. Warner, 69 Ill App 223; Bonney v. Perham, 102 Ill App 634; Cline v. Buddemeier, 164 Ill App 79; Todtleben v. Rudowski, 181 Ill App 318; Berenson v. Berenson, 34 Ill App2d 376, 181 NE2d 357; Illinois Law and Practice, Husband and Wife, §§23-26; 60 ALR2d 1. “Necessaries” include medical services. Bevier v. Galloway, supra.

Neither party here quarrels with the rule but rather claim the facts of the case invoke it in their favor. The defendant insists he is not liable because at the time the expenses were incurred he and his wife were separated and that she left him for no legally sufficient cause. The plaintiff, on the other hand, points to defendant’s admission of daily drinking, assaulting his wife, the payment of many fines for misconduct, some arising out of disputes with his wife, and asserts that ample cause for her sepparation is shown. Implicit in the trial court’s judgment for plaintiff is a finding that defendant’s wife was justified in leaving him and in living separate and apart from him and our review of the evidence does not impel us to overturn this finding.

Over objection of the defendant, the plaintiff was permitted to question defendant on cross-examination concerning a number of arrests for assault and battery of his wife. While a plea of guilty to a criminal charge of assault and battery is admissible evidence in a civil case as an admission against a party (Galvan v. Torres, 8 Ill App2d 227, 131 NE2d 367), a judgment of guilty in a criminal case not based upon a guilty plea is inadmissible. 29 Am Jur2d, Evidence, § 334. An arrest is ordinarily inadmissible as proof of the validity of the facts underlying the arrest. However, we consider the error to be harmless for the judgment of the court is supported by proper evidence in the record and when the trial court is the trier of the facts every presumption will be accorded that the judge considered only admissible evidence and discarded inadmissible evidence in reaching his conclusion. People v. Robinson, 30 Ill2d 437, 197 NE2d 45.

Defendant addresses an argument to the court based upon the Family Expenses Act, c 68, § 15, Ill Rev Stats 1963, which provides:

“The expenses of the family and of the education of the children shall be chargeable upon the property of both husband and wife, or of either of them, in favor of creditors therefor, and in relation thereto they may be sued jointly or separately.”

He concedes that expenses of the family include medical and hospital expenses but argues that interpretive cases require that a family exist in fact, not merely de jure, before the statutory liability may be imposed. Schlesinger v. Keifer, 30 HI App 253. He points out that in this case no family had existed because of the long separation of the defendant and his wife and therefore the statute may not be invoked. While it is true, as defendant contends, that the liability of the statute is not absolute, the statute is not the only remedy. In Seybold v. Morgan, 43 Ill App 39, the court states, “The remedy of the statute cannot, therefore, be invoked in cases of separation by mutual consent, but its enactment in nowise affected the common law right of action in favor of a person who supplied necessaries to the wife. Such right of recovery still exists by force of the common law, if the wife is living separate from the husband because of his fault or wrong, or with his consent.”

Defendant also asserts that when he and his wife remarried she thereby condoned his wrongdoing and left him without further fault upon his part. The evidence does not support this claim. There is no proof of the date of their divorce, the date of their remarriage or the dates of any of defendant’s acts of misconduct and defendant stated he was not entirely sure when he and his wife separated.

Defendants suggests that he should be exonerated from liability because his wife was living in adultery at the time plaintiff rendered its services to her. Again, there is no proof of the fact. It is suggested by defendant’s statement that he “heard she was living with another man” and by information contained in the hospital admission record, both of which are hearsay. Defendant did not pursue the matter in his evidence and we will not in this opinion. Suffice it to say that if the wife is guilty of conduct subsequent to the separation that would entitle the husband to a divorce, the husband should avail himself of his remedy in order to absolve himself from liability for her necessities.

Defendant finally complains that after it became known to the trial court that defendant and his wife were living separate and apart, it devolved upon the plaintiff, as a matter of law, to prove that the wife was separated from her husband without fault on her part. This misstates the rule. It devolved upon plaintiff to prove that the separation of the wife was legally justified because of defendant’s misconduct. This proof was supplied by plaintiff’s cross examination of the defendant and enabled plaintiff to meet its burden of proof of the elements necessary to its cause of action.

Since we find no reversible error in the record, the judgment of the Circuit Court of Logan County will, therefore, be affirmed.

Affirmed.

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


author: TRAPP, P. J.

text:
    Kenneth Grant Davison, Jr., Plaintiff-Appellee, v. Loretta Mae Davison, Defendant-Appellant.
    Gen. No. 11,028.
    Fourth District.
    July 15,1969.

      Daniel W. Handlin, of Lincoln, for appellant.
    Gary Hinman, of Lincoln (R. Marlin Baker, of counsel), for appellee.
   TRAPP, P. J.

A decree of divorce was awarded to plaintiff upon the grounds of defendant’s adultery. Defendant appeals from that part of the decree which awarded custody of a minor daughter to plaintiff.

The parties were married in October, 1965, and plaintiff was taken into the military service on December 6th of that year. The child was born November 12,1966. The defendant and the child lived with her parents while the plaintiff was assigned overseas. In May or June,

1967, plaintiff returned from Germany upon emergency leave for thirty days. On June 13, 1967, he filed suit for divorce and sought custody of the child. The defendant concedes that in August, 1967, she moved to another city to live with another man, taking the child with her and continued to so live until February, 1968. Plaintiff returned from Germany and was discharged from military service in November, 1967. The cause was heard upon an amended complaint filed January 11, 1968.

Defendant argues that there is no evidence that she was unfit to have the care and custody of the child, and that the actual basis of the award was the evidence concerning the grounds for divorce. It is further argued that plaintiff refused to support the child and that such amounts to an abandonment.

Upon the latter point, there is no evidence of a refusal in a literal sense. An Army allotment was provided until plaintiff’s discharge near the end of November, 1967. Upon his return he saw the child with the defendant upon one occasion at the place where she resided with her paramour. There is no evidence that any request was made for the child support, or that such was refused. At most, the evidence is that plaintiff did not volunteer to pay money to defendant while she and the child continued to live under these circumstances.

The trial court prepared and filed a memorandum opinion. It noted the testimony of defendant that she thought there was nothing really wrong in taking the child with her and her paramour. The record supports the trial court’s stated conclusion that between July, 1967, and early January, 1968, defendant placed the child with others for periods aggregating two months during which period she saw the child infrequently. In oral colloquy the court estimated that defendant left the child with others from sixty-five to eighty percent of the time. There is conflicting testimony concerning the neglect of the child to the point of affecting her physical well-being during the period in evidence. The defendant testified that during the time the child was with her she took the child frequently to drive-in movies, stock car races and bowling alleys, and upon which occasions the infant was not returned to her bed until midnight.

The trial court’s memorandum states his conclusion that defendant’s character and the moral climate in which she kept the child, her apparent lack of concern for the infant’s welfare and defendant’s unwillingness to forego self indulgence for the child’s best interest called for the taking of custody from the defendant. The court found no evidence that plaintiff was unfit to have custody of the child, and the record suggests that he caused inquiry to be made by the Department of Family Services as to plaintiff’s arrangements for the care of the child. Defendant cites certain language in Nye v. Nye, 411 Ill 408, 105 NE2d 300, and Wachowski v. Wachowski, 86 Ill App2d 145; 229 NE2d 149. Nye concerned proceedings for a change of custody after a decree which had provided for the custody in the mother upon an agreement of the parties. So far as the opinion shows, the wife’s misconduct at issue was subsequent to the divorce, and the court emphasizes that her misconduct was not actually proven. It was noted that she had since married and was respected in the community. There seems to have been no evidence or issue as to neglect of the child as was found in this record. In Wachowski, custody was awarded to the father where the trial court found that the wife frequently left the children over night, had a strong penchant for “pub crawling,” and indulged in the excessive use of alcoholic liquor. The trial court found that the best interest of the child was served by placing it in the custody of the father who was able to provide adequate care. The trial court’s determination was affirmed.

In the evaluation of the evidence as to the best interest of the child, great weight must be given to the trial court’s opportunity to hear and observe the respective parties and their witnesses. The trial court’s conclusion that the defendant showed little concern for the moral climate in which the child was raised, and that the child’s well-being would be subordinate to the defendant’s personal pleasure and activities, is not contrary to the manifest weight of the evidence.

In determining the award of custody, the paramount issue to be determined is the welfare of the child. The trial court is in a position to exercise a large discretion and a reviewing court is reluctant to interfere with the exercise of such choice. Carbrey v. Carbrey, 108 Ill App2d 363, 247 NE2d 818 (1969); Eggemeyer v. Eggemeyer, 86 Ill App2d 224, 229 NE2d 144 (1967).

The judgment is affirmed.

CRAVEN and SMITH, JJ., concur.