author: EBERSPACHER, J.

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Jerome Miller, Defendant-Appellant.
    Gen. No. 68-8.
    Fifth District.
    May 26, 1970.

      Joseph R. Davidson and William E. Brandt, of Granite City, for appellant.
    Don P. Koeneman, State’s Attorney of Randolph County, of Chester, and D. McMeekin Conn, Assistant State’s Attorney, for appellee.
   EBERSPACHER, J.

Defendant entered a guilty plea to the offenses of murder and armed robbery on September 7, 1967, and was sentenced by the court to 199 to 200 years for the murder and 50 to 75 years for the armed robbery. His conviction was based upon his plea of guilty made after three days of trial and prior to the termination of the State’s case in chief. The sentence for armed robbery was made consecutive to the sentence for murder.

The following points are assigned as error: (1) the trial court failed to inform the defendant of the consequences of his plea of guilty and of the maximum penalty which could be imposed upon him as a result of his plea; (2) the plea of guilty was the result of mental coercion and cannot support a conviction; (3) it was error to sentence defendant to either consecutive or concurrent sentences upon two or more offenses which resulted from the same conduct; (4) the trial court failed to hear and receive evidence in mitigation and aggravation for the purpose of determining the sentence to be imposed; (5) the plea of guilty was the result of coercion by the trial court; and (6) the sentences were excessive.

On May 15, 1967, defendant had been first brought into open court; at that time he had no counsel but was furnished a copy of the complaint charging him with murder and armed robbery, he was informed of the nature of the charges and the penalties and that since there was a murder charge he would be held without bail, all of which he stated he understood. At that time inquiry was made as to whether it would be necessary to appoint counsel for him. He was next brought into court on May 22, when there was further inquiry concerning whether a lawyer had been retained and he was advised that there would be time for him to get a lawyer since the matter would have to go to the grand jury; the court made inquiries as to his financial ability to hire counsel, and advised him that he appeared to be indigent “as far as employing counsel.” On June 9, defendant was in court with retained counsel. Copies of the indictment had been furnished and counsel advised that defendant had read it and understood the nature of the charges. At that time the following colloquy occurred:

By the Court: “And you advised him regarding the penalty of death and imprisonment for fourteen years for the counts of murder ?”
Mr. Rice: “I haven’t gone into the penalty.”
By the Court: “I just wondered if you explained this to him. I believe when you were in first on the criminal complaint I explained the charge of murder to you.”
Defendant Miller: “Yes.”
By the Court: “And the charge of armed robbery was a felony and punishable by imprisonment in the penitentiary, the minimum is one year.”
Defendant Miller: “Yes.”
By the Court: “You are represented, Mr. Miller and had an opportunity to discuss this with him?” Defendant Miller: “Yes, sir.”
By the Court: “How do you wish to plead to these charges ?”
Defendant Miller: “Not guilty.”
By the Court: “To all three counts ?”
Defendant Miller: “Yes, sir.”

On September 5 the case came on for trial and defendant’s counsel in the presence of defendant and the State’s Attorney and the court reported in chambers stated as follows:

“We are about to commence the selection of a jury in the case of the People versus Jerome Miller, 67-CR-124 and there are matters that I do wish to put on the record at this time. I am the retained counsel of this Defendant and I will give him the best defense of which I am capable in the court of this trial, but I do want it on the record at the outset that I have advised Miller and believe that he has no chance of obtaining a not guilty verdict, in this case. I have based this upon my investigations of the facts of this case. I have practiced criminal law for sixteen years. I have advised this Defendant that the only chance or issue that he is really facing before this jury is whether or not he will receive the maximum death penalty. I have informed him that in my opinion the best he can come out of this trial is with a guilty verdict and no recommendation of the death penalty. I have advised him that it is my belief and the experience of the courts of Illinois and in conversation with the State’s Attorney that this option is available to us now without the necessity of a jury trial. That is, it is my opinion to Jerome Miller that he would not get the death penalty if he entered a plea of guilty. At this point the Defendant Miller has instructed me to proceed to trial. The second matter I want to put on the record is that we have just this morning been served with a list of five additional witnesses by the State’s Attorney and we have receipted for the same and we do make an objection at this time that as to the timeliness of this and in view of the late filing of it ask of the Court that should these witnesses be called that we have an opportunity to interview them prior to their testimony to the jury.”

Following this, the State’s Attorney advised that the added witnesses would be made available to counsel and that the State would consent to such delays as were necessary for investigation and interrogation of additional witnesses. The State’s Attorney then inquired as to whether the record showed defendant present throughout the conference, whereupon the court inquired, “Do you have anything you want to say Mr. Miller?” to which defendant responded “No sir, I don’t.”

A jury was then selected and on the following day, September 6, opening statements were made and the State proceeded to call its witnesses. On the morning of September 7, at the conclusion of the testimony of a State’s witness, the court at 11:30 a. m. announced a 10-minute recess. Upon court being reconvened, the record discloses the following:

Mr. Rice: “Your Honor, at this time the Defendant would interrupt this trial and ask leave of Court to change his plea previously entered of not guilty and enter a plea of guilty as charged in the Indictment.”
By the Court: “Is this your plea, Mr. Miller?”
Defendant Miller: “Yes, sir.”
By the Court: “You wish to change your plea of not guilty to guilty?”
Defendant Miller: “Yes, sir.”
By the Court: “Is this your plea to both charges ?”
Defendant Miller: “Yes, sir.”
By the Court: “Do you wish to proceed at this time?”
Mr. Starnes: “Mr. Rice indicated that he wishes a presentence investigation, your Honor. Any date that is convenient to the Court, ten or fourteen days hence perhaps we can schedule for final disposition.”
By the Court: “How about scheduling the sentencing for September 21, that would be two weeks from today. Would that be all right? Can you make that, Mr. Rice ?”
Mr. Rice: “It appears so.”
Mr. Starnes: “What hour?”
By the Court: “Let’s make it ten o’clock. Let the record show then that I will accept the Defendant’s pleas of guilty at this time and we will set the date for sentencing on September 21,1967 at 10:00 a. m. Anything else at this time?”
Mr. Rice: “No, sir.”
Mr. Starnes: “No, sir.”
By the Court: “You are remanded to the custody of the Sheriff at this time, Mr. Miller. Would the Sheriff please take custody of Mr. Miller.”

The court next convened on September 25, at which time the court advised that the parties were there “for a presentence, hearing in mitigation and aggravation,” and that defendant had pied guilty to the two charges, and inquired if there were other matters to be brought to the court’s attention to which defense counsel responded, “We will waive hearing in mitigation at this time.” No evidence of either mitigation or aggravation was offered, and defense counsel called to the court’s attention that it was apparent that an element of drinking had been involved, which had not been urged as a defense, and that there was evidence of pretrial statements that defendant had not intended the death of the deceased and that these highlights might tend to be of some mitigation. Defense counsel also called attention to the time defendant had been in jail. The State’s Attorney responded that the evidence had shown “a shocking crime of great consequences, dire consequences” and expressed the view that defendant was entitled to neither sympathy nor compassion since he had displayed none.

The court thereupon inquired of defendant, “Mr. Miller do you have anything you wish to say?” Defendant responded, “I only have to say, sir, is that there wasn’t anything Mr. Rice said to me or any evidence the State’s Attorney presented or anything any of the witnesses said that made me change my mind and my plea. I did that on a personal basis only.” To this the court responded, “You did this on your own. In other words what you are telling the Court is you were not influenced by what they said, is that correct?” The defendant answered, “Yes sir, that’s correct.” The court then inquired, “Is there anything else?” and defendant answered, “No Sir.” The court then proceeded to pronounce the sentences.

At the time of the trial The Criminal Code of 1961, section 115-2 (c 38, § 115-2, Ill Rev Stats 1967) and Supreme Court Rule 401 (c 110A, § 401, Ill Rev Stats 1967) were both in effect. The Code provided by section 115-2 (a) (2) that “. . . during trial a plea of guilty may be accepted when ... (2) The court has informed the defendant of the consequences of his plea and of the maximum penalty provided by law which may be imposed upon acceptance of such plea.”

Supreme Court Rule 401 (b) provided:

“The court shall not permit a plea of guilty or waiver of indictment or of counsel by any person accused of a crime for which, upon conviction, the punishment may be imprisonment in the penitentiary, unless the court finds from proceedings had in open court at the time waiver is sought to be made or plea of guilty entered, or both, as the case may be, that the accused understands he has a right to be held to answer for the offense on indictment by a grand jury and has understandingly waived that right and consented to his prosecution by information, that he understands the nature of the charge against him, and the consequences thereof if found guilty, and understands he has a right to counsel, and understandingly waives that right. The inquiries of the court, and the answers of the accused to determine whether he understands his rights to be indicted by a grand jury and to be represented by counsel and comprehends the nature of the crime with which he is charged and the punishment thereof fixed by law shall be taken and transcribed and filed in the case. The transcript, when filed, becomes a part of the common law record in the case.” (Italics ours.)

The Illinois Supreme Court in People v. Washington, 5 Ill2d 58, 124 NE2d 890 (1955) stated at page 60 in interpreting the forerunner of Rule 401 (b):

“Throughout the history of the administration of criminal justice in this jurisdiction, it has been a strict requirement of our law that in each conviction of a crime upon a plea of guilty, the record must show that before the entry of the plea the court fully explained its consequences to the defendant and that the explanation was understandingly received. (Citations omitted.) Though it was formerly held that the exact language of the trial court need not be set forth in the record, so long as the record showed the explanation had been made, (Citations omitted), this procedure has been altered by Rule 27A of this court, (Citation omitted), which, with effect from September 1, 1948 was adopted to implement the requirements of the Criminal Code. By such rule, it is now provided, in part, as follows: ‘The inquiries of the court, and the answers of the defendant to determine whether the accused understands his rights to be represented by counsel, and comprehends the nature of the crime with which he is charged, and the punishment thereof fixed by law, shall be recited in, and become a part of the common law record in the case; . . . .”

It is to be noted that Rule 27A, there interpreted, did not require a finding from proceedings had in open court “at the time . . . plea of guilty entered” as those words were first included when Rule 26 (3) was adopted (effective January 1, 1956), At page 63 of that opinion the Court continued:

“It is contended, first, that since the record shows defendant had consulted with his counsel, he must be presumed to have been fully aware of the sentence he was likely to receive if he withdrew his plea of not guilty and entered one of guilty. As we see it, the fallacy of such an argument is that both the Criminal Code and Rule 27A place the duty of explaining on the court and do not permit indulgence in the presumption that counsel has already performed such function.
“The very purpose of Rule 27A is to provide a form of procedure eliminating any doubt that a plea of guilty was made with full knowledge and understanding and to avoid the method of procedure where a defendant’s knowledge and understanding were held to rest solely on implications arising from the common-law record. To this end the rule has carefully spelled out the information which must be conveyed to a defendant to give him full knowledge of the charge against him, and leaves little, if any, room for indulgence in presumptions. While every reasonable intendment is to be given to the remarks of a trial court when complying with the rule, we think the remarks in the present record did not have the effect of conveying to defendant the information contemplated. It would appear, rather, that the essential information was left entirely to the defendant’s own knowledge and information, unexplained by the court. Under such circumstances it was error for the court to accept and enter the plea of guilty.”

When People v. Mackey, 33 Ill2d 436, 211 NE2d 706 (1965), was tried Rule 26(3) was in effect, it is identical to Rule 401(b). There at p 438 the Supreme Court said:

“The People argue, however, that two weeks prior to the entry of the pleas of guilty to the indictments here involved, the defendant was found guilty of rape by a jury and sentenced to a term of 20 to 60 years in the penitentiary. It is contended that the defendant must therefore be presumed to have been fully aware of the consequences of a plea of guilty to the rape and armed robbery indictments with which we are here concerned. We do not agree. . . . The very purpose of Rule 27a (now Rule 26) is to provide a form of procedure eliminating any doubt that a plea of guilty was made with full knowledge and understanding and to avoid the method of procedure where a defendant’s knowledge and understanding were held to rest solely on implications arising from the common-law record. To this end the rule has carefully spelled out the information which must be conveyed to a defendant to give him full knowledge of the charge against him, and leaves little, if any, room for indulgence in presumption.”

The People contend that the record fully discloses that defendant was aware of the consequences of his plea of guilty and the maximum penalty he faced; and at the same time concede that Courts have declined to presume that where a defendant has been represented by counsel he is aware of the sentence he might receive on his plea of guilty. They urge that under the principles expressed in People v. Darrah, 33 Ill2d 175, 210 NE2d 478 (1965), the court was under no obligation “to further admonish the defendant of his rights that he had exercised at the time he changed his plea.” In that case the defendant was advised of the consequences of his plea by his counsel in the presence of the court, at the time he offered his plea of guilty, and the court inquired if he still persisted in his plea and proceeded to admonish defendant. We do not consider the factual situation in Darrah parallel to this defendant’s being advised of the penalties by the court in May, and again on June 9 when he acknowledged that he understood them, a change of plea 3 months later in September, and a record which is barren of admonishment by the court at any time.

The State has also urged that since defendant was advised by the court of the maximum sentence that People v. Kontopoulos, 26 I112d 388, 186 NE2d 312, (1962) is applicable, and that the admonishment must be read in a realistic and practical manner. In that case upon the change of plea defendant was immediately advised of the possible penalty advising that he could be punished by imprisonment in the penitentiary but did not advise him of lesser penalties of a fine or imprisonment in county jail as provided by law; and the court inquired “Notwithstanding that knowledge you still desire to plead guilty” and received an affirmative answer before accepting the plea. There was no question of timeliness of the knowledge of the maximum sentence nor of the admonition being given by the court, nor of defendant knowing the maximum penalty persisting in his plea.

As we understand the law, the record must disclose that at the time a defendant changes his plea to that of guilty from that of not guilty, inquiry must be made in open court and answers then and there given which demonstrate that the defendant comprehends the nature of the crime and the punishment. This record does not contain such inquiries and answers given at the time the plea of guilty was accepted, and we are compelled to reverse the conviction based on the plea accepted in this case. The fact that the trial court as well as this Court might believe that defendant comprehended the nature of the crime and possible punishment, is of no consequence in determining whether the court pursuant to Rule 401(b) should permit the plea of guilty.

Our holding makes it unnecessary to consider the other points assigned as error. The Court thanks appointed counsel for their thoroughness and diligence.

We therefore reverse the judgment and remand the cause for further proceedings not inconsistent herewith.

Reversed and remanded.

MORAN and GOLDENHERSH, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    Okaw Hunting and Fishing Club, an Illinois Not-For-Profit Organization, Plaintiff-Appellant, v. Thomas Craig and Clarence Brickey, Defendants-Appellees.
    Gen. No. 69-14. (Abstract of Decision.)
    Fifth District.
    May 27, 1970.
    Russell H. Classen, of Belleville, for appellant; Turner, Holder & Ackerman, of Belleville, for appellees.
   Opinion by JUSTICE EBERSPACHER. Not to be published in fulL


author: MR. PRESIDING JUSTICE CRAVEN TRAPP, J.,

text:
    Marcus Burch Powell, Plaintiff-Appellee, v. R. J. Anderson, Inc., et al., Defendants-Appellants.
    Gen. No. 53,513.
    First District.
    April 17, 1970.
    Rehearing denied May 20, 1970.

      TRAPP, J., dissenting.
    Kriebel and Jorgenson, of Chicago (David L. Jorgenson, of counsel), for appellants.
    Gomberg and Sharfman, of Chicago (Robert J. Sharfman and David L. Gomberg, of counsel), for appellee.
   MR. PRESIDING JUSTICE CRAVEN

delivered the opinion of the court.

R. J. Anderson, Inc., defendant, appeals from a judgment of the Circuit Court of Cook County entered against it on a motion for summary judgment by plaintiff, Marcus Burch Powell. Defendant, a real-estate brokerage corporation, was ordered to pay Powell $3,341.02, representing 50 percent of an installment real-estate commission paid the corporation, and further to pay Powell 50 percent of future installments of the commission as the same are paid defendant.

Plaintiff Powell, a real-estate salesman who had been employed as such by R. J. Anderson, Inc., filed a complaint before the Professional Standards Committee of the Northwest Suburban Board of Realtors, Inc., in a dispute between him and defendant concerning a real-estate commission, and asked the arbitration committee of the Board to settle the dispute and to direct defendant to pay 50 percent of the commission to him.

Defendant filed an answer to the request for arbitration saying, (1) that plaintiff was not the procuring cause of the sale; (2) that plaintiff was never advised he would receive the commission claimed; and (3) that a previous commission paid plaintiff of $5,200, representing 50 percent of the first installment of the commission, was paid him because he was in “difficult financial straits.”

The Committee heard the evidence and witnesses produced and reached a decision, finding that plaintiff was entitled to 50 percent of the commission. Defendant appealed the decision to the Board of Directors of the Northwest Suburban Board of Realtors, Inc., contending (1) the Committee misapprehended the acts required to constitute a person as the procuring cause, (2) the decision was against the manifest weight of the evidence, and (3) the Committee did not have authority to hear the dispute because it was a dispute between an employee and an employer. The Board of Directors denied the appeal.

Defendant-corporation refused to comply with the order of the arbitration committee. Thereupon the Board imposed the sanction under its bylaws of dropping defendant’s membership in the Board of Realtors.

Powell thereafter filed a complaint in court, consisting of two counts. Count I sought a judgment based upon the proceedings held by the Professional Standards Committee of the Northwest Suburban Board of Realtors, Inc. Count II prayed for judgment on the ground that plaintiff was, in fact, the procuring cause of the sale and entitled to commission. Defendant filed an answer. As to Count I, defendant denied it submitted to the arbitration proceeding and stated that “said arbitration was specifically conditioned upon the agreement that any decision by the Board was not binding on the parties.” As to Count II, defendant denied plaintiff was the procuring cause of the sale.

Plaintiff filed a motion for summary judgment and defendant a motion to deny the motion for summary judgment. These motions were supported by affidavits of Kenneth M. Gunsteens, acting chairman of the Committee, as to certain provisions of the bylaws of the Board of Realtors and as to statements made by the respective parties concerning submission to arbitration. Defendant’s motion also was supported by the affidavit of Robert J. Anderson, president of defendant-corporation and codefendant. Defendants also had filed a demand for jury trial in the case.

The court found that the parties had agreed to arbitrate their dispute; that the Committee had heard testimony and rendered its decision; that no application had been made to any court to vacate or modify the award, and more than ninety days had elapsed since a copy of the decision was delivered to defendant-corporation; that defendant’s pleadings did not raise the issue that the award of the arbitrator exceeded his power; and that the parties voluntarily submitted their dispute to the arbitrator. Motion for summary judgment was allowed and an order was entered confirming the award, directing defendant-corporation to pay $3,341.02 to plaintiff and one-half of all commission payments and interest received by defendant-corporation subsequent to the order. Motion to vacate the summary judgment order was denied. This appeal follows.

Defendant now raises on appeal the question of the jurisdiction of the realtor committee to hear or determine the matter, the finding that plaintiff was the procuring cause of the sale, and contends that there is a genuine issue of a material fact which precludes summary judgment.

Under section 57 of the Illinois Civil Practice Act (Ill Rev Stats 1967, c 110, par 57), a motion for summary judgment for plaintiff should be allowed and a judgment or decree as sought should be rendered if the pleadings, depositions and admissions on file, together with affidavits filed, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment or decree as a matter of law. This statute has been held to require that the right to summary judgment must be clear beyond question. Di Battista v. Centennial Ins. Co., 52 Ill App2d 84, 201 NE2d 466 (4th Dist 1964); Solone v. Reck, 32 Ill App2d 308, 177 NE2d 879 (1st Dist 1961).

The purpose of the summary judgment procedure is not to try an issue of fact but to determine whether an issue of fact exists. James B. Clow & Sons, Inc. v. Chesterfield Sewer & Water, Inc., 39 Ill App2d 279, 188 NE2d 882 (2d Dist 1963); Blonar v. Inland Steel Co., 57 Ill App2d 99, 207 NE2d 124 (1st Dist 1965).

As we view the record in this case, the entire position of defendant revolves around the question of whether the parties agreed to be bound by arbitration. Thus, if there is a genuine issue of a material fact present in this case, it must be the question of whether the parties so agreed to arbitration.

There is no claim that the parties submitted the dispute to arbitration in writing as is authorized both by the Uniform Arbitration Act (Ill Rev Stats 1967, c 10, § 101) and the bylaws of the Northwest Suburban Board of Realtors, Inc. However, at common law, a parol agreement to arbitrate a dispute was valid as to any cause of action which did not involve the title to land. Smith v. Douglass, 16 Ill 34 (1854); Ross v. Watt, 16 Ill 99 (1854); White Eagle Laundry Co. v. Slawek, 296 Ill 240, 129 NE 753 (1921); Wisconsin Bridge & Iron Co. v. Missouri-Illinois Bridge Co., 272 Ill App 12, 25 (1933). We find no basis for holding that submission to arbitration cannot be made by parol. However, to be valid, parol submission to arbitration must be clearly established. Koon v. Hollingsworth, 97 Ill 52 (1880).

As a part of the record in this case and attached to plaintiff’s motion for summary judgment is a transcription of a tape recording of a portion of the hearing before the Professional Standards Committee. In the transcription, at the outset of the arbitration hearing when the parties were being sworn, they were asked if they would abide by the decision of the Committee in the findings of the case. Plaintiff agreed. Defendant-corporation, through its president, agreed that it would abide by the recommendations of the Committee as to a question of professional ethics but not as to determination of a monetary amount. Defendant, at that time, took the position that the Committee could decide only a question of ethics and impose only the sanction of expulsion from membership in the realtor association. Defendant indicated no objection that the Committee proceed but did not want the corporation to be precluded from the right to have a court decide whether any money sum was due.

Thereafter the transcript shows that the acting chairman of the Committee and the various participants discussed the bylaws of the association and the relative effects upon Powell and the realtor corporation of expulsion from the association because of Powell’s dependence for livelihood as a real-estate salesman upon the multiple listing afforded Board members. Also it clearly appears that defendant was informed that the acting chairman was of the opinion that plaintiff was not to be denied arbitration but that defendant had the privilege to withdraw from membership if it did not wish to submit to arbitration. At this point there was a suggestion that the matter be continued in the hope that the parties might be able to resolve their differences by agreement. However defendant’s president thereupon objected, and both he and plaintiff stated that they were willing to proceed. Both parties, at this point, stated that they agreed to be bound by the findings of the Committee. In the due consideration of the whole context of this transcript, the final statements of each of the parties that “I agree to be bound” could mean only that each clearly submitted to binding arbitration.

While the affidavits submitted by plaintiff and defendant for consideration on the motions were conflicting in some respects, the trial court was not required to consider defendant’s supporting affidavits as true and plaintiff’s as false, but to consider the whole of the pleadings, affidavits and transcriptions offered. Gliwa v. Washington Polish Loan & Building Ass’n, 810 Ill App 465, 34 NE2d 736 (1st Dist 1941).

The record, considered in the light of the well-considered rules testing a motion for summary judgment, clearly shows that both parties agreed to submit to and abide by arbitration of the dispute between them. Thus there was no genuine issue as to this material fact which disposes of the entire controversy. The judgment of the trial court was correct. That judgment is affirmed.

Judgment affirmed.

SMITH, J., concurs.

TRAPP, J., dissents.

TRAPP, J.,

dissenting:

The majority opinion determines that there was a parol agreement to arbitrate. An oral agreement to arbitrate must be clearly established. Koon v. Hollingsworth, 97 Ill 52.

This record does not support the requisite clear oral agreement of the parties to arbitrate the dispute at issue. Throughout several pages of colloquy between the parties and the committee, defendant insisted on preserving his right to litigate the fact of indebtedness. The record shows that the defendant agreed to be bound by the discipline of the Bylaws through the operation of the Ethics Committee, i. e., that the defendant might be subject to expulsion from the Board. There is extended discussion of the fact that such expulsion would injure the plaintiff as an employee, but that such discipline would not affect the defendant in the conduct of his own business. In the context of the extended discussion concerning defendant’s right to litigate, and the effect of expulsion from the Board, the record does not support the view that the defendant reversed his position in the one sentence quoted by the majority. Defendant’s last recorded statement prior to the words now taken to be controlling was that there had been a fair settlement.

This view is sustained by the affidavit of one Gusteen, who chaired the meeting, which specifically states the understanding of all parties participating to be that there was a reservation of right in either the defendant or plaintiff to litigate the dispute concerning the commission. Again, it is significant that there is no pretense that the reported procedures complied with either the Bylaws of the Board relating to arbitration, or the statute, c 10, § 101, Ill Rev Stats 1967.


author: MR. PRESIDING JUSTICE CRAVEN

text:
    Estate of Peter T. Barrett, Deceased. Continental Illinois National Bank and Trust Company of Chicago, a National Banking Association, Petitioner-Appellant Cross-Appellee, v. The First National Bank of Chicago, a National Banking Association, Petitioner-Appellee, and Myrtle Cornish Barrett, Heir and Legatee-Appellee Cross-Appellant.
    Gen. No. 53,945.
    First District.
    April 17, 1970.

      Witwer, Moran & Burlage, of Chicago (Samuel W. Witwer, John F. Atkinson and Edward J. FitzSimons, of counsel), for Continental Illinois National Bank and Trust Company of Chicago, appellant-cross-appellee.
    Winston, Strawn, Smith & Patterson, of Chicago (George B. Christensen and John Alden Powers, of counsel), for First National Bank of Chicago, petitioner-appellee.
    Law offices of Sidney C. Kleinman, of Chicago (Sidney C. Kleinman and F. William McCarty, of counsel), for cross-appellant, heir and legatee-appellee.
   MR. PRESIDING JUSTICE CRAVEN

delivered the opinion of the court.

This appeal is from orders entered in the Circuit Court of Cook County, County Department, Probate Division, admitting a 1962 will to probate, appointing The First National Bank of Chicago as executor, and denying probate to a 1948 will and a 1965 codicil thereto.

The last will of Peter T. Barrett, executed February 2, 1962, which stated that it revoked all previous wills, was admitted to probate. The orders denied probate of an earlier will of testator dated July 16,1948, and of a codicil to that will dated August 17, 1965. The court appointed as executor the corporate executor and trustee named in the 1962 will.

The matters determinative of this appeal are whether the 1965 codicil was entitled to probate, and if so, whether it revived the 1948 will.

On July 16, 1948, testator Peter T. Barrett executed a last will which provided for establishment of a marital trust and a residual trust for the principal benefit of his widow. The marital trust was to consist of thirty-five percent of the adjusted gross estate and the residual trust the balance after payment of taxes, expenses and claims. Upon death of the widow, after certain possible gifts to her parents and decedent’s daughter from the marital trust in default of appointment by the widow, the entire estate was to be distributed to nieces and nephews, or their descendants. The First National Bank of Chicago was designated executor and cotrustee.

Testator, on February 2, 1962, executed another will, stating that it revoked all previous wills. This will provided for certain specific bequests and for a marital trust of thirty-five percent of the adjusted gross estate and a residual trust, both for the widow. It differed from the 1948 will in providing for possible discretionary payments during the lifetime of the widow to testator’s sister, brother, nieces and nephews, and for ultimate distribution to such nieces and nephews, their spouses, or their descendants living 21 years after the death of decedent’s widow. The wife’s parents were omitted and the married name of the adopted daughter was used. The adopted daughter was omitted as a contingent beneficiary of certain property and of the marital deduction trust. Certain changes were made by including the interest in a cooperative apartment and by changes in certain income payments. The First National Bank of Chicago again was designated executor and trustee.

On August 17, 1965, testator executed a codicil to his July 16, 1948, will, stating in the first paragraph of such codicil: “I, PETER T. BARRETT, of Chicago, Blinois, do hereby declare this to be the First Codicil to my Last Will and Testament, dated and executed by me on July 16, 1948.” By this codicil he substituted the Continental Illinois National Bank and Trust Company of Chicago for The First National Bank of Chicago as executor and trustee. The codicil referred to a certain provision of the 1948 will and provided for proportionate distribution of assets between the marital and residual trusts (no such provision being in either the 1948 or 1962 instruments). The final provision of the codicil stated that the testator ratified and confirmed all other provisions of his “said Last Will and Testament as amended and revised herein.”

The two wills and codicil were filed for admission to probate and proof of proper execution and attestation was made. The court entered orders denying probate of the 1965 codicil and the 1948 will and admitted the 1962 will to probate. The First National Bank of Chicago was appointed executor. Subsequently an order was entered appointing the Continental Illinois National Bank and Trust Company of Chicago as administrator to collect pending disposition of this appeal. The widow and daughter of testator join as proponents of the 1965 codicil and 1948 will.

Section 46 of the Probate Act (Ill Rev Stats 1967, c 3, par 46), as amended in 1957, governs the revival of revoked wills as pertains to this case. That section provides in part as follows:

“A will which is totally revoked in any manner shall not be revived other than by its re-execution, or by an instrument in writing declaring the revival and signed and attested in the manner prescribed by this Article for the signing and attestation of a will.”

Thus, two methods are provided by which a revoked will may be revived, namely, (1) by its “re-execution” or (2) by an instrument in writing, executed and attested with the formality required of a will, declaring the revival.

Prior to the 1957 amendment to section 46, our courts held that upon the revocation of a will an existing earlier will was automatically revived. Stetson v. Stetson, 200 Ill 601, 66 NE 262, 61 LRA 258 (1903). However, this rule was changed by the amendment.

The proper execution of a codicil with the formalities required for the execution of a will is a republication or reexecution of the will to which it refers. Thus, in Johnson v. First Union Trust & Savings Bank, 273 Ill App 472, 502 (1934), in discussing this principle, the court said: “It amounts to a republication of the will and if there was any question as to the validity of the original will, it was removed by the execution of this last codicil. Hobart v. Hobart, 154 Ill 610 [39 NE 581, 45 Am St Rep 151].” Likewise, this principle is recognized in James, Illinois Probate Law and Practice, c 28, § 43.12, where the author in pointing out that a properly executed codicil cures defects in an improperly executed will, states that “as the codicil brings the will to it, the will becomes re-executed.” In the instant case, by the due execution, attestation and proof of the 1965 codicil the 1948 will to which it specifically referred was re-executed within the meaning of section 46.

Further, we are of the opinion that the codicil also complied with the second method of revival provided by section 46. That question was passed upon in Kimbark v. Satas, 87 Ill App2d 460, 231 NE2d 699 (1st Dist 1967), where the court held that a codicil executed in 1965 revived a 1961 will which had been revoked by a 1964 will. There, as here, it was contended that the statutory language that the instrument of revival declare the revival required the strict use of the express words “declaring the revival” in the instrument. The court rejected such contention, pointing out that the codicil there began by declaring it to be a first codicil to the testator’s last will and testament bearing date of September 15, 1961, and made specific references to various provisions of the 1961 will. Further, the court stated that not only did the testator make a codicil that was entirely inconsistent with anything but a revival of the 1961 will, but he concluded by writing, “ T hereby confirm my said Will in all other respects.’ ” The codicil in the instant case contained almost identical confirmation language.

Appellant contends that the court in the Kimbark case examined the dispositive provisions of the codicil and other facts which demonstrated that the testator there intended to revive the earlier will. It contends that here the 1962 will was a better and more up-to-date estate plan and therefore must be the will the testator preferred. Such contentions must be rejected. This was not the rationale of the Kimbark decision, nor can it be the test here. The desirability of a particular estate plan is in no way germane to the issue of whether the testator revived the 1948 will. The testator here complied with the statutory requirements of revival of the 1948 will. The orders of the circuit court are reversed and this cause is remanded to that court for further proceedings consistent with the views herein expressed.

Reversed and remanded with directions.

SMITH and TRAPP, JJ., concur.


author: MR. JUSTICE SMITH

text:
    Donald E. Cohen, Plaintiff-Appellant, v. Northwestern National Life Insurance Company, Defendant-Appellee.
    Gen. No. 54,450.
    First District.
    April 17, 1970.
    Domsky and Cohen, of Highland Park, for appellant.
    James E. Beckley, of Kirkland, Ellis, Hodson, Chaffetz & Masters, of Chicago, for appellee.
   MR. JUSTICE SMITH

delivered the opinion of this court.

The plaintiff filed suit on a group insurance policy to recover the sum of $320.55 as reimbursement for medical and hospital bills paid on account of a tonsillectomy performed on his son. Both plaintiff and defendant filed motions for summary judgment accompanied by appropriate affidavits. Plaintiff’s motion was denied, defendant’s motion was allowed and plaintiff appeals.

The chronology of events is basically as follows:

7- 28-68: Plaintiff and his dependents became insured under a group policy of his employer.
8- 9-68: A doctor diagnosed the son’s difficulty as tonsillitis and adenoiditis and recommended surgery. It was scheduled for August 21.
8- 20-68: The son entered the hospital and surgery was postponed because of a hay fever condition until a later date.
9- 1-68: Employer terminated its group insurance policy.
9-18-68: The plaintiff submitted a claim for medical expenses of $15 and hospital expenses of $22.50.
9-27-68: The plaintiff terminated his employment with the employer.
11-25-68: The son’s tonsils were removed and a claim for $283 was filed with the insurance company.

Payment was denied on the ground that the $37.50 incurred prior to September 1 was less than the $50 deductible provided by the policy and hence the insurance company owed nothing on those two items. It denied liability on the remainder of the claim on the theory that no surgical or hospital expenses were incurred until after the operation on November 25, 1968, and at that time the group insurance policy was not in force. It is the plaintiff’s theory that the obligation for the doctor and hospital expenses in the tonsillectomy were “incurred” on August 9 when the diagnosis was made by the doctor and a determination that surgery was necessary. Thus, he says, his rights vested at that time and the subsequent cancellation of the policy was of no consequence. We do not agree.

Two policy provisions and their interpretation control this appeal. The first one reads as follows:

“If, while insured under the policy, an Insured shall incur eligible medical expenses as a result of accidental bodily injury or sickness, the Company will, . . . .” (Emphasis supplied.)

The policy goes on to define “eligible medical expenses as follows:

“Eligible medical expenses included under the policy are the amounts actually charged to an Insured for the following treatments, services, and supplies, . . . .” (Emphasis supplied.)

In Bartulis v. Metropolitan Life Ins. Co., 72 Ill App2d 267, 218 NE2d 225, we held that under the terms of the policy there issued the liability of the defendant to pay hospitalization and surgery did not arise when the injuries were sustained, but that the obligation under the policy was for the costs of hospitalization and surgery obtained during the life of the policy. When obtained, the policy was not in force. We there stated that the policy was clear and unambiguous and that while we recognized the rule that insurance contracts are construed in favor of the insured, construction does not degenerate into a perversion of plain language to create an ambiguity where none exists or to father a contractual obligation where none is stated or reasonably implied. These comments in our judgment control the decision in this case.

The term “eligible medical expenses” as used in the policy means “amounts actually charged to an insured.” The plaintiff does not claim that there were any amounts charged to him as of September 1, 1968, other than the $37.50 incurred prior thereto which was within the $50 deductible exemption. When this policy was can-celled no surgery had been performed and no hospitalization as a result of surgery had occurred. Indeed the plaintiff was not “charged” for either of these items until December 9, 1968. There is nothing in this record which infers that the plaintiff had obligated himself by contract to have the tonsillectomy performed nor had he obligated himself by contract for any hospitalization. He most assuredly would have been absolutely free to have had another doctor perform the surgery or have had his son visit a different hospital. In short, there was no obligation “incurred” and there was no “charge” made. Cases cited by plaintiff from other jurisdictions are not in point factually.

The plaintiff asserts that this is not a proper case for summary judgment for the reason that there were controverted questions of material fact. In the trial court and in this court he says it was error to enter a summary judgment in favor of the defendant, but that either the trial court or this court should approve a summary judgment in his favor for $320.55. He blows hot and cold on the issue of whether there is a genuine issue of a material fact. It is patent that there is no dispute of a genuine issue of a material fact and that the sole issue was the construction of an insurance contract. The construction of an insurance contract raises a question of law only. Coons v. Home Life Ins. Co. of New York, 368 Ill 231, 13 NE2d 482.

There being no error in the judgment of the trial court, it is hereby affirmed.

Affirmed.

CRAVEN, P. J. and TRAPP, J„ concur.


author: MR. JUSTICE LYONS

text:
    Great American Insurance Company, a Corporation, Plaintiff-Appellee, v. Tinley Park Recreation Commission, a Corporation, Patrick Bullard and Charles Bullard, Defendants-Appellants.
    Gen. No. 53,200.
    First District, Second Division.
    April 21, 1970.
    Rayson & Hutchison, of Tinley Park, Smith & Munson, and Edwin A. Strugala, of Chicago (Lester E. Munson, Leland H. Rayson, and Edwin A. Strugala, of counsel), for appellants.

      Pratt & Warvel, of Chicago (Charles J. Pratt, William H. Warvel, and Alvis W. Haney, Jr., of counsel), for appellee.
   MR. JUSTICE LYONS

delivered the opinion of the court.

The Great American Insurance Company brought an action for declaratory judgment for construction of a certain policy of insurance, which it had issued in relation to an occurrence which resulted in injuries to a minor. The Tinley Park Recreation Commission (hereinafter called the Commission), the insured, Patrick Bullard, the injured minor, Charles Bullard, his father and next friend, and Louis Arnold Maretti, d/b/a Carpentersville Fireworks Company were named as parties defendant. The trial court found the policy in question to have expired by its own terms prior to the occurrence which resulted in the minor’s injuries and entered judgment for the plaintiff. All defendants, save Maretti, have appealed.

The Commission purchased the policy to cover the risks to which it was exposed as sponsor of an outdoor carnival and fireworks display. The fireworks display, marking the close of the Commission sponsored activities, was conducted on the evening of September 3, 1962. The employees of Maretti, the contractor engaged to conduct the display, failed, during their cleanup operations, to discover and remove certain unexploded firework bombs.

On the afternoon of September 4, 1962, Patrick Bullard, age 10, and a companion, discovered two such bombs. On the following afternoon, September 5, 1962, Patrick Bullard was injured by the explosion of one of those bombs. It is unnecessary to detail here the circumstances surrounding that injury, as the question of whether the injury to Bullard fell within the risks assumed by the insurer is not before this court.

The sole issue presented for review is whether the determination by the trial court is against the manifest weight of the evidence. The court found that the insurer is not liable to indemnify the Commission for the legal liability to which it has become exposed as a consequence of the expiration of the policy prior to the occurrence which resulted in Bullard’s injuries.

The policy in question is a form liability policy, commonly referred to as an Owners’, Landlords’ and Tenants’ Liability Policy, intended to be adaptable to the risks attending a large variety of activities. The type or types of risks for which the policy is issued is indicated in the declarations section, along with limits of liability in terms of dollar amounts, the location of the premises insured and amount of premium charge. This section also names the Commission as the insured and indicates the policy period to commence at 12:01 a. m. on August 30, 1962, and expire at 12:01 a. m. on September 4, 1962.

On page three of the policy are set forth the insuring agreements, seven in number, each of which is designated by a Roman Numeral. Under Agreement I, the insurer agrees “to pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury, sickness or disease, including death at any time resulting therefrom, sustained by any person, caused by accident and arising out of the hazards hereinafter defined.” The hazard for which the Commission purchased protection is defined in the same agreement as follows. “Premises-Operations. The ownership, maintenance or use of the premises, and all operations necessary or incidental thereto.”

Insuring Agreement VII, which operates as a limitation upon the covenant contained in Agreement I provides : “This policy applies only to those accidents which occur during the policy period within the United States of America, its territories or possessions, or Canada.”

The explosion and resultant injury to Bullard on September 5, 1962, clearly occurred subsequent to the expiration of the policy. It is the defendants’ contention that under a proper construction of the policy coverage is nevertheless afforded for the Bullard injury. They argue that under Agreement I a cause and effect relationship is established between the terms “accident” and “injury.” Thus when Agreement VII is read, the term “accident” contained therein must be given the meaning which attaches to it by reason of its use in Agreement I. They conclude that all that is necessary for coverage to exist under the policy is that the cause of the injury occur during the policy period.

Defendants then attempt to establish that the cause of Bullard’s injury did occur within the policy period. They reason as follows. The term “accident” is properly defined to include negligent acts which are the proximate cause of an unintended injury, citing Gray v. American Radiator & Standard Sanitary Corp., 22 Ill2d 432, 176 NE2d 761 (1961), a case dealing with the question of where a tort is committed. Further, the term “accident” is generally understood to be an occurrence, which in turn is defined as an event or series of events. Thus, an accident may be said to be an event or series of events, or, in terms of the present factual situation, the accident which resulted in the injuries sustained by Bullard was a continuous process, the component parts of which cannot be separated from the whole, which commenced within the policy period with the negligent act of Maretti’s employees and continued until the time of the injury. At this time the entire experience became a “consummated accident.”

In essence, the defendants argue that since a cause and effect relationship exists between the terms “accident” and “injury” as they appear in the policy, and since a negligent act which is the proximate cause of an unintended injury is properly contained within the meaning of the term “accident” and further since the component parts of an accident cannot properly be separated, all that is necessary for liability to attach to plaintiff under the limitations of Agreement VII is that some portion of the “consummated accident” occur within the policy period. They further argue that to require that the injury occur within the policy period would result in an inconsistency between the first and seventh agreements with respect to the term “accident” as “accident” in the seventh agreement would then be synonymous with “injury.”

Assuming arguendo that defendants are correct in their assertions both with respect to the relationship between the terms “accident” and “injury” as they appear in the policy and with regard to a negligent act being part of an accident, it does not follow therefrom that liability for bodily injury caused by accident arises upon completion of a portion of the accident; i. e., commission of the negligent act. To so hold would be to extend the proposition that a negligent act which is the proximate cause of a later suffered injury is properly deemed a part of an accident to the proposition that the terms “negligent act” and “accident” are synonymous. By their own use of the phrase “consummated accident” defendants indicate their realization that an accident cannot be said to have occurred until all the factors of which it is comprised combine to produce the force which inflicts injury. It is clear that in this sense the accident which caused Bullard’s injury did not occur until the afternoon of September 5, 1962. In addition, this concept does not require that the terms “accident” and “injury” be equivalent. On the contrary, it retains the cause and effect relationship between them which defendants have urged exists by reason of their use in the first agreement.

Finally, defendants have argued that liability should be found to exist under the rule of construction that insurance policies should be construed to the end that the reasonable expectations of the insured be given effeet. While it may be true that the Commission reasonably expected that the policy which it purchased from plaintiff would cover the type of occurrence which resulted in Bullard’s injuries, it could not have reasonably expected that occurrences which post date the policy would be covered thereby.

We find no error in the determination of the Circuit Court that the policy in question expired by its own terms prior to the accident which resulted in Bullard’s injuries. Accordingly, the judgment of the Circuit Court is affirmed.

Judgment affirmed.

McCORMICK, P. J. and BURKE, J., concur.


author: MR. JUSTICE BURKE

text:
    Estate of Alfred A. Franke, Deceased. Louis Dardano, Conservator of the Estate of Mary Damico, Incompetent, Claimant-Appellee, Cross-Appellant, v. The First National Bank of Chicago, Executor of the Will of Alfred A. Franke, Deceased, Respondent-Appellant, Cross-Appellee.
    Gen. No. 53,328.
    First District, Second Division.
    April 21, 1970.

      Mitchell and Russell, of Chicago (Thomas J. Russell, William H. Kelly, Jr., of counsel), for respondent-appellant.
    Posanski, Johannsen, Krohn & Jacobs, of Chicago, for appellee.
   ON REHEARING

MR. JUSTICE BURKE

delivered the opinion of the court.

This appeal arose out of a claim filed by Mary Damico in the amount of $81,973, by which she sought to impose a constructive trust against the estate of the decedent, Alfred A. Franke, on the ground that the decedent held and invested her income which she had allegedly earned as decedent’s housekeeper over a number of years. The trial court allowed the claim in the amount of $28,080, representing compensation of $20 per week for her services from 1939 to the date of the decedent’s death, to be paid in due course of administration. The court specifically found that the claimant failed to prove the existence of a constructive trust. The executor appeals from the order awarding $28,080 to the claimant, and she has cross-appealed from the determination that no constructive trust had been established.

After the claim had been filed and prior to the trial of this matter, the incompetency of Mary Damico, on the ground of “a severe case of senility,” was suggested of record. Louis Dardano, the nephew of Mary Damico, was appointed conservator of her person and estate, and was substituted as claimant. For convenience, Mary Damico shall hereinafter be referred to as “claimant” and Louis Dardano as “conservator.”

Decedent died in Chicago on November 5, 1966. At the time of his death he was the owner of a rooming house on North Winthrop Avenue in the city and occupied the first floor of the building as his residence. Claimant also resided in the apartment and performed housekeeping chores for decedent in that building and in several other rooming houses decedent had owned.

A petition to admit the decedent’s will to probate was filed in December 1966. Proof of will was taken by the trial court on February 17, 1967, and the trial judge initialed the order form admitting the will to probate “O.K. 2-17-67 H.J.K.” next to the names of the two witnesses who testified at the hearing. The order admitting the will to probate and the order appointing the executor were stamp dated February 27, 1967, and filed with the Clerk of the Circuit Court on the same day.

On November 17, 1967, the executor presented a petition alleging that a clerical error had been committed in the dating of the order admitting the will to probate and the order appointing the executor, and requesting that an order be entered nunc pro tunc as of February 17, 1967, that these orders were in fact entered on February 17, 1967, rather than the February 27th date appearing on the orders. The court allowed the petition and entered the nunc pro tunc order.

Claimant filed the instant claim on November 24, 1967, seeking to impress a constructive trust on the estate, on the theory that she had earned $20 per week as housekeeper for the decedent for the period from 1928 until the death of the decedent, but that the decedent had withheld the earnings from her and invested the same for her benefit. On December 14, 1967, claimant moved for the vacation of the November 17th nunc pro tunc order. The motion was sustained over objection of the executor and an order was entered on January 8, 1968, vacating the nunc pro tunc order.

At the hearing on the claim, John P. Corcoran, a real estate broker who had known decedent since 1939, testified that claimant worked for the decedent as his housekeeper in the six rooming houses the decedent had owned over the years. The witness stated that the decedent did not tell him what financial arrangements the decedent and the claimant had; he testified that the decedent stated to him on at least 50 occasions that he was investing claimant’s money for her, but that the decedent did not tell him how much money was being invested. Decedent told the witness that he was “making money for [claimant] and investing her money.”

Frank Lukasik, a building contractor, testified that he was employed by decedent in 1964 and 1965 to correct some building violations on the decedent’s rooming house. Lukasik testified that while negotiating the repairs contract he was continuously reassured by the decedent that decedent had sufficient funds to pay for the work. The witness testified that decedent boasted about his prowess and successes in the stock market. He also testified that the decedent told him he was investing over $1,000 per year for claimant, but the decedent did not say whether it was her wages or salary being invested. Lukasik testified that decedent told him that the reason why he was handling all of claimant’s financial affairs and “investing her money” was because claimant was unable to handle such matters herself. The witness further testified that he observed claimant performing general household chores in decedent’s rooming house.

Mrs. Frances Dardano, the wife of the conservator, testified over objection that she had known the decedent and the claimant since 1948 or 1949 when Mrs. Dardano and her husband were married. She testified that she had a conversation with the decedent in 1949 concerning the claimant’s employment as decedent’s housekeeper, and decedent told Mrs. Dardano that he was paying claimant $20 per week for her services but that he was withholding the money from her and investing it for her because she was unable to manage her own financial affairs. Mrs. Dardano testified that decedent “always handled [claimant’s] affairs.”

The trial court found that no constructive trust had been established by the evidence. The court also found that claimant did work for the decedent as his housekeeper from 1939 until the decedent’s death, and further observed that “the evidence indicates that $20.00 a week was the amount that [claimant] was to receive, and of course, that amount is less, if anything, than a reasonable amount for services such as she was rendering.”

The executor first maintains that the trial court erred in vacating its November 17, 1967 nunc pro tunc order which changed the dates of the orders admitting the will to probate and appointing the executor, from February 27, 1967, to February 17, 1967. It is argued that since the order appointing the executor was actually entered on February 17th, the claim herein, filed November 24, 1967, was not filed within the nine-month statutory period set for the filing of claims in decedents’ estates, then in effect. (See Ill Rev Stats 1965, c 3, par 204.)

It does not appear from the record that the order appointing the executor was presented to or acted on by the trial court on February 17,1967, the day the court heard the proof of the decedent’s will. Both the order admitting the will to probate and the order appointing the executor were filed with the Clerk of the Circuit Court on February 27, 1967, which is also the court’s order entry date stamped on both orders. The trial judge who entered, and later vacated, the nunc pro tunc order was not the same judge who heard the testimony in the proof of the decedent’s will and who also entered the orders admitting the will to probate and appointing the executor.

The order appointing the executor bore the date of February 27, 1967. Under this state of the record the last day for the filing of claims against the decedent’s estate would have been November 27, 1967. The order remained spread of record as such until November 17, 1967, the day the executor filed its petition for the nunc pro tunc order to change the date of the order appointing the executor to February 17, 1967; November 17, 1967 was also the last day the executor contends that claims could have been filed against the estate. An order such as that originally entered by the court, changing the date of entry of the order appointing the executor, would have worked a serious disadvantage against parties such as claimant here who had theretofore placed reliance on the February 27th date as commencing the nine month period within which their claims had to be filed. The trial court properly vacated its nunc pro tunc order entered November 17,1967.

The executor next contends that the trial court improperly allowed the testimony of Mrs. Frances Dardano into evidence, inasmuch as she was the wife of a party in interest and therefore barred as a witness by Section 2 of the Evidence Act. (Ill Rev Stats 1967, c 51, par 2; and citing Peters v. Peters, 376 Ill 237, 33 NE2d 425.) The executor suggests that Louis Dardano was a party in interest in two respects, first, in his capacity as conservator of the claimant’s estate and, secondly, in his capacity as the claimant’s only living relative and prospective heir.

Louis Dardano would not have been incompetent to testify on the ground that he is the sole surviving prospective heir of the claimant. Prospective heirs of parties or of persons interested in the outcome of the proceeding do not, for that reason alone, have such an interest in the outcome of the proceeding as to disqualify them as witnesses therein. Ackman v. Potter, 289 Ill 578, 88 NE 281.

However, Louis Dardano did have a financial interest in the outcome of this proceeding such as would bar him, and consequently his wife, from testifying. It is therefore unnecessary to discuss whether his status as a party to the action, per se, would have disqualified him as a witness.

In Hays v. Illinois Industrial Home for Blind, 12 Ill 2d 625, 147 NE2d 287, the executor of the decedent’s estate was permitted, over objection, to testify as to conversations had with the decedent; the Supreme Court observed, at page 630, that the executor “was not an incompetent witness at any rate, since he would not gain or lose as the direct result of this suit. (Citing cases.) He is merely a stakeholder standing ready and willing to begin distribution in accordance with the court’s decree, his (sic) fees will not be affected by the outcome of this action.” (Emphasis supplied.) In Jones v. Abbott, 235 Ill 220, 85 NE 279, on the other hand, the court held, at page 223, that where the executor will gain a commission from the sale of property as a direct result of the proceeding, he was not competent as a witness therein. Finally, the Probate Act provides that a conservator shall be allowed “reasonable compensation” for his services. Ill Rev Stats 1967, c 3, par 336.

While a conservator will normally be entitled to the same fee regardless of the outcome of the proceeding in which he is a party, the sole asset in the estate of Mary Damico, as admitted by the parties at trial, is the instant claim against decedent’s estate; consequently, the conservator will either receive compensation for his services, or he will not, depending on the outcome of this litigation. Since Louis Dardano does have a direct interest in the outcome of this litigation, neither he nor his wife is competent to testify as to dealings with the decedent during his lifetime.

The executor next contends that the record is devoid of evidence establishing an amount due claimant for services rendered to the decedent. James Corcoran testified that he had known the decedent since 1939, that he had business and social dealings with decedent until decedent’s death, and that claimant worked as housekeeper for decedent in decedent’s several rooming houses during the entire period he had known decedent. Decedent told Corcoran that he was investing claimant’s money for her, that he made money for her, and that he managed all of her financial affairs.

Frank Lukasik testified that he had business dealings with the decedent in 1964 and 1965, that decedent told him that he was investing over $1,000 per year for the claimant, and that he was handling all of claimant’s financial affairs because she was unable to do so herself.

As noted above, the trial court was aware of the interest which the conservator had in the outcome of this action and he should not have considered the testimony given by Mrs. Frances Dardano. While there was evidence adduced supporting the claim of Mary Damico, apart from the testimony of Mrs. Dardano, it is difficult to determine how much weight the trial judge gave to that testimony in arriving at his findings and in arriving at the amount of the judgment rendered for the claimant. The order must therefore be reversed and the cause remanded, and if there is to be a retrial of the cause, the testimony of Mrs. Frances Dardano may not be considered by the trier of fact should Louis Dardano continue to be conservator of the estate of Mary Damico, Incompetent.

A final point raised, involving the statute of limitations, must be considered in the event there is a retrial of this matter.

The executor maintains that the Damico claim is barred by the five-year statute of limitations, inasmuch as her hiring was a hiring by the year. Generally, where a person is employed under a general agreement which fixes no term of service, and continues in such employment for a long period of time, the hiring will be treated as a hiring by the year; the statute of limitations will ordinarily bar a claim for all services rendered more than five years immediately preceding the commencement of the action, unless there is evidence to take the case out of the operation of the statute. Miller v. Cinnamon, 168 Ill 447, 452, 48 NE 45; Freeman v. Freeman, 65 Ill 106.

While we are in agreement with the above-stated rule, we are here faced with evidence which takes this claim out of the operation of the statute. The decedent continuously stated that he was investing claimant’s wages for her since she was unable to handle her own financial affairs. Consequently, claimant had no way of knowing, until the death of the decedent, that he was not in fact doing what he said he was doing, at which time it was learned that nothing had been invested specifically for her benefit. Under these unusual circumstances the statute of limitations did not commence to run on the Damico claim until the death of the decedent. Claimant is therefore entitled to recover for services from the inception of the peculiar relationship between deceased and claimant.

Claimant contends on her cross-appeal that the trial court was in error in finding that her evidence did not establish a constructive trust against the funds that decedent had been withholding from her and investing for her. A constructive trust must be established by clear and convincing evidence, among which must be evidence of a traceable and identifiable property or fund against which the trust may attach. Moore v. Taylor, 251 Ill 468, 472-473, 96 NE 229; see also Wood v. Armstrong, 401 Ill 111, 116-118, 81 NE2d 468. The record in the instant case reveals no evidence of any particular property or fund in the decedent’s estate which can be pointed to as having been set aside or developed by the decedent for the claimant. The trial court properly held that claimant’s evidence did not establish a constructive trust as to any part of the decedent’s estate.

For these reasons the order is reversed and the cause is remanded with directions for further proceedings not inconsistent with these views.

Order reversed and cause remanded with directions.

McCORMICK, P. J. and LYONS, J., concur.


author: MR. JUSTICE LEIGHTON

text:
    City Savings Association, a Corporation, Plaintiff-Appellee, v. C. O. Mensik, et al., Defendants, C. O. Mensik and Robert M. Kramer, Defendants-Appellants.
    Gen. No. 53,359.
    First District, Second Division.
    April 21, 1970.

      Paul C. Ross, Schiller and Schiller, and Henry N. Novoselsky, of Chicago, for appellants.
    Charles J. O’Laughlin, Patrick J. Phillips, and Seymour I. Burton, of Chicago (Jenner & Block, of counsel), for appellee.
   MR. JUSTICE LEIGHTON

delivered the opinion of the court.

In a proceeding instituted by plaintiff, defendants C. 0. Mensik, Robert M. Kramer and M. A. Barto were charged with failure to obey an order of the Circuit Court of Cook County. After a hearing, M. A. Barto was discharged; C. 0. Mensik and Robert M. Kramer were found guilty of willful contempt of court. They were committed to the Cook County Jail “[t]here to remain charged with said contempt until said Respondents shall have produced for inspection of plaintiff . . .” the ledgers and checkbooks of two named corporations. Defendants appeal. The issue is whether the contempt order is supported by evidence.

In 1965 plaintiff sued Mensik, Kramer, Barto and eighteen other defendants for an accounting, and for other relief, concerning certain of its funds. In paragraphs 7, 8 and 15 of the complaint it was alleged that Apple Orchard Builders, Inc., Apple Orchard Shopping Center, Inc., and Fran-Char Building Corporation, all three “ [m] anaged, controlled and directed by defendants Charles Hartman, President and M. A. Barto, Secretary, . . .” through spurious loans, had obtained large sums of money belonging to the plaintiff. Defendants appeared and answered. They denied most of the allegations; but asking for strict proof, they neither admitted nor denied that Charles Hartman as President and M. A. Barto as Secretary “ [m] anaged, controlled and directed . . .” the three corporations.

November 4, 1965, plaintiff served on Mensik, Kramer and the nineteen other defendants including Charles Hartman and M. A. Barto, a notice to produce “[documents in their possession or under their control relating to the merits of this case, . . . .” The notice contained nine paragraphs requesting production of bank account statements, canceled checks, check stubs, ledgers, books and records of Apple Orchard Builders, Apple Orchard Shopping Center, Fran-Char Building and seventeen other corporations. No allegation was made stating which of the twenty-one defendants possessed the documents of the twenty corporations. December 17, 1965, based on the notice, the trial court entered an order which, with minor modifications not pertinent here,' granted plaintiff’s motion to produce.

March 1, 1967, plaintiff filed a petition against defendants Mensik, Kramer and Barto alleging that they “[d]id not and have not produced the books and records of Apple Orchard Shopping Center, Inc., Fran-Char Building Corporation, Apple Orchard Builders, Inc., . . . which books and records were either specifically required to be produced or covered by general categories in the order of December 17, 1965 . . . .” The petition alleged that on February 2, 1967, in a discovery deposition of Barto, she stated that in June 1966 at 3452 West North Avenue, Chicago, Illinois, with the defendants Mensik and Kramer present, defendant Sanford Weinstein, who was the owner of the three corporations, instructed her to prepare their books and records for delivery to him in Toronto, Canada. Plaintiff prayed for a citation to issue commanding the defendants to appear and show cause, if any they had, why they should not be punished for contempt of court for willfully violating the court’s order relating to discovery of relevant documents.

Defendants answered plaintiff’s petition. They admitted the deposition testimony and alleged that when they were deposed, they testified from memory; that by reference to a telegram in their possession from Weinstein, it appeared that the books and records of the three corporations were picked up by Weinstein on September 10, 1965, a date prior to the court’s order. On April 19, 1967, the trial court entered an order directing the three defendants to show cause why they should not be punished for violating the court’s order by willfully removing from the court’s jurisdiction documents relevant to the action. Hearing was set for April 26,1967.

When the hearings began, the trial judge ruled that plaintiff had the burden of proof. To carry this burden, plaintiff called Mensik, Kramer and Barto as adverse witnesses. Barto testified that from the dates of incorporation to July 1966, when she resigned at the request of Sanford Weinstein, she was the secretary of Apple Orchard Builders, Inc., Apple Orchard Shopping Center, Inc. and Fran-Char Building Corporation. She did the secretarial work for the three corporations and had the care of their books and records. She was Weinstein’s employee. Sometime in 1966, it could have been in June or in September, she did not remember which, there was a meeting in the offices of Prime Investment Company, 3452 West North Avenue in Chicago. Present were Sanford Weinstein, defendants Mensik and Kramer, Weinstein’s attorney Henry McGurren and another man whose name she did not know. At the conclusion of the meeting Weinstein told her to prepare and assemble the books and records of the three corporations. She did this, left them in a drawer; and in November and December 1966 she was away ill in a sanitarium and later in a hospital. She did not know what became of the books and records of the corporations.

Mensik and Kramer then testified. They recalled the June 1966 meeting. Weinstein was concerned about the money he was losing in the building projects and in the corporations. During the meeting, Weinstein insisted that Mensik and plaintiff were obligated to him for losses he was suffering in the undertakings connected with the projects. When the meeting did not produce results satisfactory to Weinstein, he said that he wanted the books of the three corporations. He left the room, went to Barto and told her to prepare and assemble them. Mensik and Kramer denied that they ever delivered to Weinstein the records of the three corporations; they denied knowing what became of them.

After the three testified, plaintiff rested. Defendants made a motion to dismiss the proceedings against them. The court denied the motion. Thereafter, the three defendants testified repeating in their defense what they had said when called as adverse witnesses. At the conclusion of the hearing, the trial judge said that while he had not decided “[w]ho is going to jail, all or two or one or what. Those books are going to be produced, or somebody or maybe all three will go to jail, . . . .” Mensik then spoke and told the judge that he had no control over the man in Canada (Weinstein). The trial judge told Mensik that all he had to do was to get to the court the books and records of the three corporations. The trial judge then told the defendants that he would give them time to return the books to the court’s jurisdiction. The proceedings were continued.

More than a year later, on July 2, 1968, the hearing was resumed. Plaintiff’s counsel summarized the earlier hearings at which evidence had revealed “ [c] ertain records were sent out of the jurisdiction after the entry of . . .” the order to produce. The trial judge then referred to Barto’s testimony concerning the June 1966 meeting at which Sanford Weinstein asked that the books and records of the three corporations be assembled and prepared for shipment to him in Toronto, Canada. Defendants’ counsel disagreed that the evidence disclosed what plaintiff’s counsel claimed. Barto was again called as a witness and examined by the court. She repeated her testimony concerning the June 1966 meeting, emphasizing that out of the presence of Mensik and Kramer, Weinstein told her to prepare and assemble the corporate records for delivery to him in Canada. Mensik and Kramer then were called as witnesses and they repeated their testimony that neither was an officer, shareholder or director of the three corporations; that neither had possession or control over the corporate records; that neither had personal knowledge of what had happened to the records after they were prepared and assembled by Barto; and that neither gave nor caused the records to be given to Weinstein.

At the conclusion of the hearing, plaintiff’s counsel argued that the three defendants were guilty of willful contempt of court because they packaged, prepared, assembled and delivered the books and records of the three corporations so that they could be shipped out of the jurisdiction of the court to Sanford Weinstein in Toronto, Canada. Defendants’ counsel argued that the evidence disclosed Mensik and Kramer were neither officers, directors, nor shareholders of the three corporations; that they never had any authority over the books and records of the corporations; therefore, they were not responsible for corporate records over which they had no control. The court ruled that as to the defendant Barto, she was merely an employee obeying orders. She was discharged. As to the defendants Mensik and Kramer, the court said, “[I] would have to be very naive to believe this story of the Respondents, that these men gathered in this office after my order to produce, and that they didn’t talk about the books and records that had been ordered by this court to be produced. I don’t believe that at all. Consequently the order will be that Mr. Kramer and Mr. Mensik are found guilty of contempt of court. They are committed to the County Jail, there to remain until they produce the books and records. Take them in custody.”

The court then entered an order which found that at the direction of Mensik and Kramer the financial records of the three corporations were “ [a] ssembled, packaged and delivered to one Sanford Weinstein to be removed to Canada . . . .” The order committed the two defendants to the Cook County Jail “[t]here to remain charged with said contempt until said Respondents shall have produced for inspection of plaintiff the ledgers of Apple Orchard Builders, Inc. and Apple Orchard Shopping Center, Inc. prior to 1964, and the checkbooks for Apple Orchard Builders, Inc. and Apple Orchard Shopping Center, Inc.....” Defendants contend that this order has no support in the evidence.

The proceedings which plaintiff instituted, and the hearings which the trial court held, were to determine whether defendants Mensik, Kramer and Barto were in civil contempt of court for their willful refusal to produce <£[d]ocuments in their possession or under their control relating to the merits of this case, . . . .” It is a civil contempt for a party to refuse to produce documents which have been ordered produced by a court. See People v. Parker, 396 Ill 583, 72 NE2d 848. Ordinarily, a contempt adjudication is an appropriate method of testing a pretrial discovery order. People ex rel. General Motors Corp. v. Bua, 37 Ill2d 180, 226 NE2d 6. The burden of proving that defendants were in contempt of court because they directed the assembly, packaging and delivery of the books and records of the three corporations to Sanford Weinstein for removal to Canada was on the plaintiff since it was the party that brought the accusation. Kneisel v. Ursus Motor Co., 323 Ill 452, 154 NE 195, reversing 239 Ill App 644. Defendants had to be shown guilty of the accusation by at least a preponderance of the evidence. People v. Fusco, 397 Ill 468, 74 NE2d 531.

Defendants’ argument that the contempt order against them has no support in the evidence rests on their repeated assertion, under oath and by affidavit, that they were not officers, directors or stockholders of the three corporations; nor did they ever have possession and control over the books and records which the plaintiff wanted them to produce. Indeed, plaintiff alleged in its complaint that the three corporations were managed, controlled and directed by Charles Hartman as President and M. A. Barto as Secretary. Plaintiff’s proof established that Sanford Weinstein was the sole owner of the corporations. This record contains no evidence which contradicts these facts. Exactly why plaintiff began with a notice to produce documents served on twenty-one defendants and ended with a contempt order against Mensik and Kramer is not clear. The only possible explanation is the repeated assertion of plaintiff’s counsel that in the June 1966 meeting, the two defendants agreed to the court of conduct charged.

This assertion, however, overlooks the uncontroverted fact that Apple Orchard Builders, Apple Orchard Shopping Center and Fran-Char Building were corporations owned and controlled by persons other than Mensik and Kramer. This evidence made inapplicable plaintiff’s notice and motion that defendants produce documents in their possession or under their control.

It is a rule of universal application that a party who does not have possession and control of documents cannot be ordered to produce them for discovery. State Farm Ins. Co. v. Roberts, 97 Ariz 169, 398 P2d 671 (1965); State ex rel. Boswell v. Curtis (Mo App), 334 SW2d 757 (1960); Goldstein v. Kaye, 156 NYS2d 238, 2 App Div2d 889 (1956); Cutler v. Gulf States Utilities Co. (Tex Civ App), 361 SW2d 221 (1962). Despite absence of any evidence contradicting defendants’ insistence that they did not have possession and control of the books and records of the three corporations, the trial judge disbelieved them. However, our laws require that the order which directed defendants’ imprisonment be supported by evidence that overcame their testimony and proved that they could produce the documents as requested by plaintiff and as ordered by the court. Compare Moseley v. People, 101 Ill App 564. This order and the evidence on which it rests do not meet these requirements. For this reason, the order is reversed and the cause is remanded with directions that the rule to show cause be discharged.

Order reversed and cause remanded with directions.

McCORMICK, P. J. and BURKE, J., concur.


author: MR. PRESIDING JUSTICE McCORMICK BURKE, J.,

text:
    Marilyn Felker, Administrator of the Estate of Frank S. Felker, Deceased, Plaintiff-Appellant, v. C. M. Bartelme, d/b/a Bartelme’s Tavern, and Harold Feigenholtz, Trustee, Defendants-Appellees.
    Gen. No. 53,379.
    First District, Second Division.
    April 21, 1970.

      BURKE, J., dissenting.
    James D. Griffith, of Chicago, for appellant.
    Hurford, Feigenholtz and Busch, Gerrard and Gerrard, of Chicago (Michael A. Gerrard, Allen S. Gerrard, and Harold Feigenholtz, of counsel), for appellees.
   MR. PRESIDING JUSTICE McCORMICK

delivered the opinion of the court.

A suit was brought by Marilyn Felker, as administrator of the estate of her husband, Frank S. Felker, deceased. The suit grew out of a collision of an automobile driven by Warthen L. K. Hobbs and the Felker vehicle on February 8, 1963, at about 8:45 p. m. As a result of the collision Felker was killed, and his wife, as administrator of his estate, brought an action against Hobbs under the Wrongful Death Act, and against C. M. Bartelme, d/b/a Bartelme’s Tavern, and Harold Feigenholtz, trustee, the fee owner of the tavern property, under the Dram Shop Act. At the close of plaintiff’s case the defendants’ motion for a directed verdict was granted. This appeal questions the propriety of that action of the trial court.

The collision occurred near an unregulated “T” intersection at Dundee and Landwehr Roads in Cook County. Hobbs’ westbound car was turning south when the Felker automobile, traveling east, struck it. Hobbs said he had been in the tavern about half an hour during which time he had purchased and consumed two shots of whisky and had shared a 12-ounce bottle of beer with his wife. According to Police Officer Arlie Page, Hobbs said he drank his wife’s drink when she went into the washroom, but Hobbs denied having taken the drink and denied having told Officer Page he did.

Hobbs testified that the road on which the accident occurred was a two-lane road, with one lane going in each direction, and that it was dry on the evening in question. The speed limit on Dundee Road was 55 miles per hour. Hobbs testified that he put on his left turn signal as he approached Landwehr Road and “saw a car coming from the West, perhaps half a mile away. I was watching that car all the time until the collision. Two seconds before I got hit I saw a second car in the eastbound lane.” This “second car” was Felker’s which collided with Hobbs’.

Officer Page arrived at the scene of the accident within minutes. In his testimony he said, “Hobbs told me he turned into a driveway instead of Landwehr Road and that he saw no oncoming headlights when he started to turn.” He also testified that Hobbs had told him he “believed” he had his left turn signal on as he approached Landwehr Road.

Another police officer, J. D. Mills, testified he had a conversation with Hobbs at the hospital the morning after the accident, at which time Hobbs had admitted that while at home he had half a pint of whisky and a quart of beer, both of which he shared with his wife. The court informed the jury that that statement was binding only on the defendant who made it, and was not admissible against the tavern owner or operator. Later, the judge indicated he was not considering that testimony in his ruling on the motion for a directed verdict.

Kyle Simpson testified that he and his wife were traveling east on Dundee Road on the night in question and saw the collision. He stated: “Immediately before the collision an eastbound car passed us approximately 500 feet west of Landwehr Road. I was going about 30 miles per hour at that time. There was also a westbound car in the center of Dundee Road. The eastbound car was going at a very high excessive rate of speed. I did not notice any directional signals being given by the westbound car.” Simpson later said he had told a police officer he had no idea how fast the car was traveling when it passed him; that before the eastbound (Felker) ear reached the intersection at Landwehr it was back in the eastbound lane; and that the speed of the Felker car could have been “55 miles an hour and could have been 80 miles an hour. I would have no idea of what the speed of that car was .... The speed limit was 55 miles an hour. The speed of the Chevrolet [Felker car] could have been 53 miles an hour.”

The question before this court is whether there existed an issue of fact which should have been submitted to the jury. In their brief the defendants assert: “No evidence was introduced with regard to the condition of sobriety of War then L. K. Hobbs at/or prior to the accident at 8:45 p. m. Mr. Hobbs was not asked on cross-examination about his condition nor was anyone else asked to testify who had observed it.” We cannot agree that there was “no evidence” regarding the issue of Hobbs’ sobriety at the time of the accident. There was evidence that he had consumed alcoholic beverages at the tavern, but such testimony would not raise a jury question as to the issue of intoxication, since the single fact that one has drunk alcohol does not permit the conclusion that he was drunk.

We do not agree with the plaintiff when he says that Illinois cases have held that the mere drinking of alcohol raises a jury question as to intoxication. The plaintiff has cited Nystrom v. Bub, 36 Ill App2d 333, 184 NE2d 273; Osborn v. Leuffgen, 381 Ill 295, 45 NE 2d 622; Davis v. Oettle, 43 Ill App2d 149, 193 NE2d Ill; and Matkins v. Fenorsky, 348 Ill App 125, 108 NE2d 373, as supporting the proposition that the issue of intoxication is made out simply by showing that the alleged intoxicant drank alcohol, but in fact, none of those cases stands for that proposition. In each of them there was evidence that the alleged intoxicant had drunk alcohol, plus evidence of unusual behavior, or opinion evidence that defendant was drunk. Under those circumstances a jury would be entitled to conclude that the defendant was drunk.

In Fenorsky the defendant said he had felt “groggy” after leaving the tavern; he moved slowly and felt heavy, conditions he had not experienced before drinking. In Oettle the court noted at page 151: “A number of witnesses testified that immediately following the accident they observed Frank Emery and he was apparently intoxicated. These witnesses included a Doctor who treated Emery for his injuries at the hospital. There was no evidence to the effect that Emery was not intoxicated.” In Leuffgen the alleged intoxicant had been sitting at a bar for some time with glasses and bottles in front of him; the bartender was partially intoxicated; and two games of dice broke up with angry quarreling followed by the alleged intoxicant’s vicious assault on the decedent. The court found these facts as circumstances tending to prove intoxication.

In Bub a witness to the accident testified as to the condition of the alleged intoxicant by saying: "... I have an opinion as to whether he was intoxicated or not. My opinion is I think he was drinking quite heavily and was drunk.” (At page 341.) A registered nurse who appeared at the scene of the accident expressed the opinion that the defendant was intoxicated. These statements, together with the proof that the defendant had consumed some alcoholic beverages prior to the accident were considered sufficient to warrant a finding that the defendant was intoxicated at the time of the accident.

There are at least two elements involved in a dramshop action as to proof of intoxication; one must show that the alleged intoxicant consumed alcohol, and must present independent evidence showing that he was, in fact, intoxicated. It is not sufficient, as plaintiff suggests, to simply introduce evidence that the defendant consumed alcohol. A jury verdict under such circumstances would be based on pure conjecture since each individual’s capacity for alcoholic intake varies; therefore, a jury question as to intoxication is not made out by merely proving that one had consumed alcohol.

Upon reviewing the record in the case before us we have found independent evidence tending to support the allegation that the defendant, Hobbs, was intoxicated at the time of the occurrence, and we feel there was sufficient evidence presented to justify giving the case to the jury. First, there was testimony that the defendant had consumed alcohol at the dramshop, and although there is dispute as to exactly how much he drank there, it is undisputed that he did consume alcohol at the tavern. Then, there is a contradiction as to whether or not Hobbs had his directional signal on as he attempted to turn left off Dundee Road. There is a further contradiction between Hobbs’ testimony that he saw a car approaching half a mile away, and the testimony of Officer Page that Hobbs had told him he had not seen any oncoming headlights. Hobbs had mistakenly turned into a driveway, thinking it was Landwehr Road, although, by his own admission, he had made that turn at least fifty times before. There was testimony that the Felker car had passed another one, but was back in the proper lane at the time of the collision.

With this set of circumstances before us we cannot agree with the defendants that there was “no evidence” regarding Hobbs’ sobriety prior to the accident. The trial court’s ruling was to the effect that a verdict for the plaintiff based upon the evidence presented would not have been allowed to stand. Pedrick v. Peoria & Eastern R. Co., 37 Ill2d 494, 229 NE2d 504. For the reasons stated above, we do not reach such a conclusion, and therefore hold that the trial court committed reversible error in directing a verdict for the defendants.

Since the case is being remanded we must discuss the issue as to whether Hobbs’ alleged admission to Officer Mills concerning his consumption of whisky and beer at home was admissible against the dramshop owner and operator. The trial court had ruled that that statement was admissible only against Hobbs and not against the owner or operator. It would appear that the trial court’s ruling was based on a well established principle. The admission of a codefendant is inadmissible as against others, absent proof that the person making the admission and the codefendant had been parties to a preconceived plan or conspiracy to which the admission was relevant. When the admission is made out of the presence of and without the consent of the coparty it is inadmissible against such coparty unless there is a showing that some form of agency relationship existed between the parties. The plaintiff sought to have the officer’s version of Hobbs’ admission presented to the jury in support of her contention that Hobbs was intoxicated at the time of the accident, and that it should be considered not only against Hobbs but against the persons interested in the ownership of the dramshop.

It would appear that Hobbs’ admission was admissible against himself because it fell within an exception to the general rule regarding hearsay declarations. It was admissible because it was the purported statement of Hobbs himself and because it was against his interest to have made the statement since it contained inculpatory aspects. The question is one of reliability of the offered assertion. The “admission against interest” exception is based on the notion that one does not admit to facts which are against his own interest, and if he does admit them it would be fair to presume that the statement is true. Since the statement with which we are concerned falls within this category, it properly should have been admitted against Hobbs, but not against any other party absent the above required showing regarding agency. We hold that the trial court properly ruled that the statement was admissible only as against Hobbs.

The statement was against Hobbs’ interest, but was self-serving at the same time. The potential self-serving aspect could have been Hobbs’ reason for fabricating his own state of intoxication, since he may have assumed the plaintiff would be more likely, for practical reasons, to seek relief from the dramshop rather than from himself. Of course, we do not know of any conversation Hobbs had in the meantime. The accident occurred at 8:45 p. m., and the alleged conversation took place at 1:00 a. m. the following morning.

We cannot agree that the objection made to the admissibility of the proffered testimony was a general objection and hence raised only the issue of whether the evidence was material and relevant. The following colloquy appears in the record as having occurred during the time the objection was raised:

The Court: “Was he conscious ?”
The Witness: “Yes, sir.”
Mr. Feigenholtz: “I object to any conversation — ”
Mr. Griffith: “Was there any — ”
Mr. Feigenholtz: “Just a minute, please.”
The Court: “It won’t be binding on your clients, but — ”
Mr. Feigenholtz: “That is the basis of my objection, your Honor.”
The Court: “It would be binding upon the person with whom the conversation was had, subject to rebuttal.”
Mr. Griffith: “I will make my same objections to that ruling that I made yesterday.”
The Court: “What is your objection?”
Mr. Griffith: “That this is admissible as to all defendants.”
The Court: “It can’t be under the rules of evidence.”

We feel that the objection cannot fairly be called general. The trial court had said the conversation would not be binding as to Mr. Feigenholtz’s clients (the tavern and Mr. Feigenholtz as trustee), at which point Mr. Feigenholtz indicated that such was the basis of his objection. Under the circumstances, we think the parties concerned clearly recognized that the hearsay problem was being discussed and that counsel’s objection was that Hobbs’ admissions were inadmissible against the dram-shop defendants since the statement was hearsay as to them. The evidence was hearsay as to the dramshop defendants, and the trial court properly ruled it inadmissible as to those defendants other than Hobbs.

Since we have concluded that the case should have been submitted to a jury for its determination as to whether Hobbs was intoxicated at the time of the accident, the judgment of the Circuit Court of Cook County is reversed and the cause remanded for a new trial.

Reversed and remanded.

LYONS, J., concurs.

BURKE, J.,

dissents.

In my opinion there was no evidence of intoxication. Therefore, the judgment should be affirmed.