text:
    People of the State of Illinois, Plaintiff-Appellee, v. Arthur Cokes, Defendant-Appellant.
    Gen. No. 52,401.
    First District, First Division.
    February 17, 1969.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Harold A. Cowen, Norman W. Fishman, and James J. Doherty, Assistant Public Defenders, of counsel), for appellant.
    John J. Stamos, State’s Attorney of Cook County of Chicago (Elmer C. Kissane and James Veldman, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE BURMAN

delivered the opinion of the court.

The defendant, Arthur Cokes, was charged with the crime of murder (Ill Rev Stats 1967, c 38, § 9-1). The cause was tried before a jury and resulted in a verdict and judgment of guilty. The court sentenced the defendant to a term of not less than 21 nor more than 28 years in the Illinois State Penitentiary.

The defendant contends, on appeal, that (1) he was improperly prevented from presenting his theory of the case to the jury; (2) the court committed prejudicial error in not calling certain witnesses; (3) the prosecutor’s misconduct resulted in a trial unfair to defendant; and (4) the State did not establish defendant’s guilt beyond a reasonable doubt.

The record reveals that on November 16, 1966, between the hours of 1:30 a. m. and 2:00 a. m., Calvin Gamble found the dead, nude body of Milton Campbell on the steps leading to Gamble’s basement, outside his house. Gamble went back into his house and called the police. When he came back outside he saw the defendant standing near the body. He observed that the defendant had blood on the upper part of his pants and on the lower part of his shirt. After Gamble told the defendant to stay where he was, the defendant turned and fled from the scene.

Detective Dale Buehler testified that he and his partner, Detective Strocchia, arrived at the scene in response to Mr. Gamble’s call. He said that he observed that the body had a deep gash in the throat. Subsequent examination showed that the body also had a bullet wound in the head. Detective Buehler then testified that his attention was drawn to blood spots and drag marks leading across the alley and that he followed them to 4955 South Vincennes. There the detective found the defendant, Alice Hall, Ruby Cokes (the defendant’s wife), and McKinley Martin. The detective also found bloodstains on the floor and walls of the kitchen, in one of the bedrooms, and on various articles of clothing. At that point, Calvin Gamble, who had followed the police into the basement apartment of the defendant, told the detectives that it was the defendant, Arthur Cokes, whom he had seen standing near the body. Detective Buehler then began to search the bedroom and found a knife with bloodstains on it. Ruby Cokes said that the knife belonged to her husband and the defendant nodded in the affirmative. About the same time one of the members of the crime lab recovered a revolver. Ruby Cokes said it was her husband’s gun and the defendant volunteered that he had recently purchased it. After advising the defendant of his constitutional right to remain silent the detective said that Arthur Cokes accused his wife of killing the victim. She replied that he was a liar. Then the defendant pointed to McKinley Martin and said that he helped him, the defendant, carry the body from the apartment and place it in the alley. Later the defendant accused Martin of killing Milton Campbell. The detective stated that the defendant repeated the accusations against his wife and Martin at the police station. On cross-examination Detective Buehler testified that after the arrest of the defendant and Martin McKinley, he did not see Ruby Cokes again and had no knowledge of where she might be.

Donald Gunnell, a police officer assigned to the Crime Laboratory for six years, testified that he found a .38-caliber revolver under the dresser in the defendant’s bedroom. He also found a .38-caliber shell casing on top of the dresser. There were bloodstains on the gun.

A stipulation was entered into between the parties that if Burton C. Nielson, a ballistics expert, took the stand he would testify that the bullet recovered from the body of the deceased was fired from the defendant’s .38-caliber revolver.

Alice Hall testified that she went to the defendant’s basement apartment about 8:00 a. m. on November 14 and found the defendant’s wife at home. She said that she had known the defendant and his wife for about five years and had visited with them on occasion. On that day, the witness testified, she and the defendant’s wife drank with a lot of other people in the defendant’s apartment. Instead of going home, Alice Hall said she spent the night in the back room of the apartment. The following day the defendant, his wife and the witness started drinking again. The defendant left to buy more liquor and when he returned he was accompanied by the deceased, Milton Campbell, and another man. Alice Hall said everyone sat down and drank, but that after a while she felt she had had enough. She then went into the back bedroom to sleep. Miss Hall stated that she was almost asleep when Milton Campbell came in the bedroom. They had sexual intercourse, but when he refused to stop when she tired, she called for the defendant. The defendant told Campbell that “I’m tired of you messing around with my wife and friends that come around here to visit me.” Miss Hall said that Campbell replied that he hated “colored peoples or Negroes, or something like that . . . Alice Hall then said that the defendant pulled Campbell off the bed, “stomped him” and then she heard a “ping.” She testified further that the defendant waved a shiny gun and told her “don’t you say nothing about this you silly girl.” The defendant noticed that Miss Hall had blood on her arm and she washed it off. When she looked back she saw Campbell lying on the floor. She said she got into bed again, covered her head with the bed clothes and when she peeked out she saw the defendant drag the victim out of the room. She went to sleep and the next thing she remembered was that McKinley Martin came in and sat on the bed. Alice tried to tell him what had happened, but she said she could not.

The defendant, Arthur McCullough Cokes, took the stand in his own defense. He testified that he was a junk-man and that he had been married to his wife, Ruby, for three years. Cokes said he had not seen or heard from his wife since shortly after he was arrested. The defendant stated that he had known Alice Hall for ten years and that Milton Campbell, the victim, had been a friend of his for four years, during which time the defendant did business with him. The defendant further testified that McKinley Martin rented a room from him and that Alice Hall spent the night of November 14 with Martin. Cokes said that on the morning in question, November 15, he went to a junkyard. When he returned home at about 11:30 a. m. he found the body of Milton Campbell in his hallway. He said that he went into his apartment, told his wife of his discovery and then went to the drugstore across the street for headache tablets. He testified later that before he went to the drugstore his wife told him “that she shot that man that was fighting in there.” He tried to talk to Alice Hall, but she was too drunk to say anything. The defendant admitted owning the gun in evidence stating that he had purchased it from the victim. He testified that he kept the gun in his dresser drawer. When McKinley Martin came in from work the defendant said he told Martin what had happened and together they carried the body to the lot across the street. The defendant then stated that he does not drink and that he did not kill Milton Campbell. The defendant said that when the police officer asked him whether he had killed Campbell, he said that he had not and that he told the officer in his wife’s presence that she had killed the victim and that he had carried the body out of the apartment to protect her. The defendant denied that he told the police that McKinley Martin killed Campbell and said he only told the officer that Martin helped him carry the body. At the police station, the defendant said that he told the police, in his wife’s presence, that she killed Campbell and that she was a mental patient from Elgin. The defendant said his wife replied “you’re telling a story on me.” He also said that his wife did not tell the police in his presence that she killed Campbell.

The defendant contends that he was improperly prevented from presenting his theory of the case to the jury, i. e., he was barred from attempting to produce evidence to show that his wife committed the murder. The following excerpt from the record is cited by the defendant in support of his contention:

Q. After you purchased the gun did your wife know where the gun was ?
A. Yes.
Mr. Beranek: Objection.
The Court: sustained . . . you can ask this man what he saw and observed, but not what his wife knew.

The defendant argues that when the court sustained the State’s objection above, the defense counsel was undoubtedly discouraged from proceeding with a line of testimony which would have attempted to prove the wife’s guilt of the murder of Milton Campbell. We find this contention to be totally without merit. The record clearly shows that after this single question the defense counsel, who was privately retained, did not pursue the matter further even though the court told defense counsel he could ask the witness what he saw and observed. Under such circumstances we believe that the trial court gave the defendant every opportunity to develop this field of inquiry.

The defendant also supports his contention that he was improperly prevented by the court from presenting his theory of the case to the jury with the following excerpt from the record:

Q. To your knowledge, Mr. Cokes, is Mrs. Cokes in the City of Chicago ?
Mr. Beranek: Objection.
The Court: Obj ection sustained.

Again, we do not feel that the court’s refusal to admit the objectionable testimony denied the defendant an opportunity to explore the area further. The record reveals that the defendant did testify that he had not heard from his wife since shortly after his arrest. Also, that on cross-examination Detective Buehler testified that no charges were filed against Mrs. Cokes. He was asked:

Q. Have you had occasion to see or talk with Mrs. Cokes since your investigation of his case ?
A. After the arrest of Arthur and McKinley and the visit to the area I have not seen Ruby Cokes since this time.
Q. Do you—at this time do you have any knowledge as to where she might be ?
A. No. I have no knowledge whatsoever, sir.

Furthermore, even if the refusal to admit the testimony was in error, the record fails to sustain the defendant’s charge that he was in any way prejudiced. A claim of prejudice cannot be based upon mere conjecture, People v. Kelley, 23 Ill2d 193, 177 NE2d 830, as is the case here. A reviewing court will not reverse a judgment of conviction because of errors which occurred at the trial unless it appears that justice has been denied or that the finding of guilt might have resulted from the error. People v. Bridges, 28 Ill2d 165, 190 NE2d 719.

In his second contention the defendant argues that the trial court committed prejudicial error in not insisting that Ruby Cokes and McKinley Martin be found and brought in as witnesses. It is well settled in Illinois that it is the privilege of the defendant to call any witness he desires. People v. Kukulski, 358 Ill 601, 193 NE 504. At no time does it appear, however, that the defendant either attempted to subpoena these two individuals himself or requested that the court cull them fts court’s witnesses. Furthermore,; there is no requirement that the State call all available witnesses. People v. Dronso, 83 Ill App2d 59, 226 NE2d 460. Under these circumstances we conclude that the trial judge did not commit prejudicial error in not insisting that the defendant’s wife and friend be found and brought in as witnesses and that the defendant was not denied a fair trial in this respect. People v. Huff, 29 Ill2d 315, 194 NE2d 230.

The defendant’s third contention involves the allegedly prejudicial comments made by the prosecutor in his final argument to the jury. The defendant urges that the prosecutor made a blatant attempt to win the sympathy of the jury by identifying himself with them and by improperly characterizing the defendant. However, no objection was made to the prosecutor’s remarks at the time of the trial. The defendant’s failure to object to the allegedly improper argument at trial constitutes a waiver of the issue and he is precluded from raising the issue on appeal. People v. Asey, 85 Ill App2d 210, 229 NE2d 368; People v. Allum, 78 Ill App2d 462, 223 NE2d 187. Moreover, we have examined the remarks of the prosecutor and have concluded that he did not transcend the bounds of legitimate argument. People v. Kemp, 29 Ill2d 321, 194 NE2d 217.

The defendant also argues under his third contention, that the prosecutor’s final argument improperly called attention to the fact that the defendant failed to call certain witnesses. The record discloses, however, that defense counsel in his argument to the jury pointed out that the State had failed to call the defendant’s wife and McKinley Martin, as witnesses. There was an obvious attempt by the defense counsel to cast doubt on the State’s case by this method. We believe that the defense counsel, who brought this issue to the jury’s attention in the first place, invited the remarks of prosecutor, and the defendant cannot now complain that such remarks were made. People v. Izzo, 14 Ill2d 203, 151 NE2d 329; People v. Wheeler, 5 Ill2d 474, 126 NE2d 228.

The defendant’s fourth and final contention is that the State failed to prove him guilty beyond a reasonable doubt. The gravamen of defendant’s argument is that the testimony of Alice Hall is at variance in essential portions and, therefore, a reasonable doubt as to the guilt of the defendant is raised. It is readily apparent that the jury rejected as incredible the defendant’s version of the killing and accepted the testimony of Alice Hall as true. Credibility of the witnesses and the weight to be given their testimony are matters to be determined by a jury and the reviewing court will not disturb a verdict unless it is so palpably contrary to the evidence as to justify the court in entertaining a reasonable doubt of the defendant’s guilt. People v. Woodruff, 9 Ill2d 429, 137 NE2d 809. After carefully examining the record we cannot say that the defendant was not proven guilty beyond a reasonable doubt.

For the reasons given the conviction and judgment are affirmed.

Judgment affirmed.

ADESKO P. J. and MURPHY, J., concur.

       The defendant cites People v. Lettrich, 413 Ill 172, 108 NE 2d 488, in support of his contention that the objectionable testimony should not have been refused. Since we do not need to reach the issue for which the case was cited, there will be no discussion of the case.


source: Caselaw Access Project

author: ME. JUSTICE BUEMAN

license: Public Domain

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Donald G. Stewart, Defendant-Appellant.
    Gen. No. 52,539.
    First District, First Division.
    February 17, 1969.
    Gerald W. Getty, Public Defender of Cook County, of Chicago (Saul H. Brauner, Norman W. Fishman, and James J. Doherty, Assistant Public Defenders, of counsel) , for appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane, Michael Stevenson, and James E. Kavanaugh, Assistant State’s Attorneys, of counsel), for appellee.
   ME. JUSTICE BUEMAN

delivered the opinion of the court.

The defendant, Donald Stewart, was charged in Indictment No. 67-238, with one count of aggravated battery (Ill Rev Stats 1967, c 38, § 12-4) and one count of attempt robbery (Ill Rev Stats 1967, c 38, § 8-4). The cause was tried before a jury and resulted in a verdict and judgment of guilty on both counts. The court sentenced the defendant to 4 to 6 years on each charge to be served in the Illinois State Penitentiary. The sentences were to run concurrently.

The defendant contends, on appeal, that (1) he was not proven guilty beyond a reasonable doubt in that his identification was based on conflicting testimony and (2) the conviction and sentencing of both attempt robbery and aggravated battery was improper.

The record reveals that Watt Pettis, the complaining witness, testified that on December 23, 1966, he was employed at the Ford Motor Company plant at 129th Street and Torrence. He said that as he left the plant at 12:0Q p. m. he was given his paycheck and that upon receiving the check he walked over to the mobile check cashing service to cash it. Mr. Pettis had to wait in line a few minutes, so he gave the keys to his car to Larry Ginn, his regular rider, so that Mr. Ginn could warm up the car. After cashing the paycheck, Mr. Pettis had $105 from the check, plus another $215 in cash which he had been saving for Christmas. The complaining witness then walked to his car, but found that the door was locked. At that moment, Mr. Pettis testified, “someone grabbed me around the neck. ... I was pulled down and hit immediately; and he [the assailant] said, ‘Give me this money.’ ” In the struggle, Mr. Pettis was hit once in the mouth with a closed fist knocking out several of his teeth. When someone approached and asked what was going on, the assailant left. The complaining witness received first aid at the plant and after-wards spoke with a policeman called by the plant security guards. On the next working day, December 27, Mr. Pettis reported the incident to the labor relations office at the Ford Motor Company plant. After Pettis described what had happened and who had been involved, the defendant, Donald Stewart, a fellow employee, was brought into the office. Pettis identified the defendant as his assailant.

The complaining witness further testified that the defendant and he had worked on the same production line for about a month and that during that month he had seen the defendant every day. Mr. Pettis stated that he did not know the defendant’s name, but remembered that the defendant was called “Voodoo.” When asked what the lighting conditions were in the area the assault occurred, the complaining witness replied that “[i]t wasn’t too dark there.” In addition, he said that the defendant walked directly under a light as he left the area.

Larry Ginn, the complaining witness’s regular rider, testified that he was employed by the Ford Motor Company and that he worked the same shift as Mr. Pettis. He stated that Pettis approached the car from the passenger’s side and that the door on that side was locked. Before he could reach over and unlock the door, Mr. Ginn said, “Pettis went down.” When Ginn got out of the car he saw Pettis sitting on the ground bleeding from the mouth and he saw the defendant standing a short distance away. Larry Ginn testified that he was acquainted with the defendant as a fellow employee from work. After the defendant had departed, Ginn and Pettis drove off. Ginn got out of the complaining witness’s car at 115th Street and the Expressway and boarded a bus, admitting to Mr. Pettis that he did not want to get involved.

John Keating, a police detective, was called as a witness for the defendant. He testified that Pettis told him that he was struck several times.

The defendant’s first contention involves the adequacy of his identification. He cites People v. Gold, 361 Ill 23, 31, 196 NE 729, 732, for the proposition that “[n]o man should be deprived of his liberty unless his identification as the party charged with a crime is under such circumstances and with such positiveness that there can be no reasonable doubt of its correctness.” The defendant claims that the identification evidence supporting his conviction does not meet the above standard in that the complaining witness could not identify the defendant (whom he knew as Voodoo) as his assailant until the assailant stood beneath a light some distance away and that at that point, the complaining witness only observed the defendant for a few seconds and at a distance. The defendant also claims that Roland, the Ford employee identified by both Pettis and Ginn as the man who shouted “what’s going on there” should have been produced as a witness.

In the case at bar both the complaining witness and Ginn identified the defendant as the assailant. Both Pettis and Ginn had worked with the defendant and knew him before the occurrence in question. The jury and the trial judge considered their testimony worthy of belief. It has long been the rule in Illinois that in criminal offenses the sufficiency of the identification of the accused is a question of fact for a jury and that courts of review will not reverse unless the testimony is so unsatisfactory as to leave a reasonable doubt as to the identification. People v. Bailey, 90 Ill App2d 121, 234 NE2d 332. As we cannot say that the identification in this case is so unsatisfactory as to justify a reasonable doubt as to the defendant’s guilt, we see no reason for disturbing the guilty finding reached by the jury.

The defendant further contends that the conviction and sentencing of both attempt robbery and aggravated battery was improper and should be reversed and modified. The defendant states that the law is well settled that a defendant may not be sentenced for two or more offenses if each offense arose out of the same transaction. In such cases, the defendant maintains, punishment can only be imposed for the more serious offense. People v. Duszkewycz, 27 Ill2d 257, 189 NE2d 299. In Duszkewycz, the defendant was found guilty of forcible rape and incest. The Supreme Court, reversing the incest conviction, found that the two offenses for which the defendant was convicted and sentenced involved a single act and that, therefore, only the conviction on the greater offense (rape) was affirmed.

In the instant case, however, more than a single transaction is involved. There were two separate and distinct acts: (1) grabbing the complaining witness from behind and hitting him and (2) demanding his money. The offense of aggravated battery was completed before there was the demand for money. Accordingly, we find the defendant’s second contention to be without merit and hold that the two convictions and the two concurrent sentences are entirely proper.

For the reasons stated the judgment is affirmed.

Judgment affirmed.

ADESKO, P. J. and MURPHY, J., concur.


author: MR. PRESIDING JUSTICE ADESKO

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Leslie Baddeley, Defendant-Appellant.
    Gen. No. 52,648.
    First District, First Division.
    February 17, 1969.
    Everett W. Hertline, of Chicago (Harry G. Fins, of counsel), for appellant.

      John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Michael C. Zissman, Assistant State’s Attorneys, of counsel), for appellee.
   MR. PRESIDING JUSTICE ADESKO

delivered the opinion of the court.

On August 18, 1967, a complaint was filed charging the defendant, Leslie Baddeley, with theft of an automobile. The defendant pleaded not guilty, was tried by a Magistrate without a jury, found guilty and admitted to six months’ probation.

The defendant is engaged in the occupation of repairing automobiles. In the first week of July, 1967, the complaining witness, Joseph D. Chasan, brought his 1952 Austin Sedan automobile to Lake Forest Motors, defendant’s place of business, to have said automobile repaired by the defendant. Thereafter, defendant performed the necessary repair work upon the automobile (adjust valves and replace leaking engine head gasket). On July 28, 1967, after the vehicle was repaired, Mr. Chasan picked it up at the garage and gave the defendant a check for $25 in partial payment, informing the defendant he would pay the balance due when he (Chasan) returned from his vacation. The defendant agreed to this arrangement and Mr. Chasan drove the automobile home.

Chasan operated the automobile approximately three days, then the vehicle “broke down” and would not run. Because of this breakdown, Chasan called his bank and ordered them to stop payment of the $25 check he gave to the defendant. Chasan left the vehicle parked in the driveway next to his home and subsequently, on August 5, 1967, left town on a two-week vacation. (There is conflict in the testimony of the complaining witness and the defendant at this point: Chasan claims he did not speak with defendant concerning this second breakdown prior to going on his vacation. Defendant claims Chasan called him and complained about the second breakdown and defendant said he would take care of it.)

While Chasan was away, the defendant and one of his employees went to Chasan’s home and towed the 1952 Austin automobile out of the driveway and back to defendant’s shop. Defendant left a note in Chasan’s mailbox notifying Chasan that the automobile was taken to the shop and was to be fixed once again. Several days after the automobile was in defendant’s possession defendant learned that the check he received from Chasan had been stopped for payment. Nevertheless, defendant made additional repairs upon the vehicle. Upon Chasan’s return from his vacation, he discovered his automobile was missing and found a note in his mailbox divulging its whereabouts. Chasan thereupon called the North-brook police and informed them of the missing automobile. The next day, August 17, 1967, Chasan telephoned defendant and asked defendant to return the automobile, but defendant replied that he would return the automobile when Chasan paid the repair bill. Chasan stated he made an effort to get his automobile but made no effort to pay the repair bill because the automobile was taken from his property without his permission. On August 18, 1967, a complaint was filed charging the defendant with theft of an automobile, pursuant to section 16-1 of the Criminal Code. (Ill Rev Stats 1965, c 38, § 16-1.) The result of the bench trial was a finding of guilty of the offense as charged.

It is defendant’s theory that, as a lien holder, he had the right to the possession of the automobile while his charges for the repairs of the automobile remained unpaid, and since he did not intend to permanently deprive Chasan of the automobile, there was no evidence to justify a finding of guilt against him. Defendant maintains that this appeal involves two separate and independent areas of law. The salient provisions of each are as follows:

Sections 16-1 and 15-3 of the Criminal Code of 1961 (Ill Rev Stats 1965, c 38, §§ 16-1, 15-3) provide:

“16-1 ... A person commits theft when he knowingly:
“(a) Obtains or exerts unauthorized control over property of the owner; . . . and
“(1) Intends to deprive the owner permanently of the use or benefit of the property; . . .
“15-3 ... To ‘permanently deprive’ means to:
“(c) Retain the property with intent to restore it to the owner only if the owner purchases or leases it back, or pays a reward or other compensation for its return; . . .”

The Liens Act of 1921 (Ill Rev Stats 1965, c 82, § 40) provides:

“. . . Be it enacted by the People of the State of Illinois, represented in the General Assembly: Every person, firm or corporation who has expended labor, skill or materials upon any chattel, or has furnished storage for said chattel, at the request of its owner, reputed owner, or authorized agent of the owner, or lawful possessor thereof, shall have a lien upon such chattel beginning on the date of the commencement of such expenditure of labor, skill and materials or of such storage for the contract price for all such expenditure of labor, skill or materials, or for all such storage, or in the absence of such contract price, for the reasonable worth of such expenditure of labor, skill and materials, or of such storage, for a period of one year from and after the completion of such expenditure of labor, skill or materials, or of such storage, notwithstanding the fact that the possession of such chattel has been surrendered to the owner, or lawful possessor thereof.”

The narrow question here is whether the circumstances under which the defendant took Chasan’s automobile are susceptible to the inference that defendant had any intent other than that of permanently depriving Chasan of his property. Testifying in his own behalf, defendant affirmed that he did not at any time have any intention to appropriate Chasan’s automobile for permanent possession as his own; that he was withholding the automobile until Chasan paid him the balance of the repair charges; and that there is no evidence to justify a conclusion that a theft of Chasan’s property had occurred.

Our Theft Statute, section 16-1 of the Criminal Code, supra, specifically requires, inter alia, as an essential element of the crime of theft, that the accused possess an intent to permanently deprive an owner of his property before conviction can result. Since such intent may seldom be proved by direct evidence, the Supreme Court of Illinois has held that the intent may be deduced from acts committed and circumstances in evidence. People v. Baker, 365 Ill 328, 6 NE2d 665 (1937); People v. Heaton, 415 Ill 43, 112 NE2d 131 (1953). Yet when such a test is applied here, there is grave doubt as to whether the proof supports a conclusion that defendant entertained the necessary intent as required by the aforementioned statute. Although an intent to steal may ordinarily be inferred when a person takes the property of another, proof of the existence of a state of mind incompatible with an intent to steal precludes a finding of theft. 25 ILP, Larceny, § 7. It has long been the rule in many states throughout the country that a bona fide belief, even though mistakenly held, that one has a right or claim to another’s property, negates an intent to deprive the owner permanently of his property. (See collected cases in 46 ALR2d 1227 (1956).)

As we view them, the facts, circumstances and evidence in the instant case do not prove beyond a reasonable doubt that defendant possessed an intention to permanently deprive Joseph Chasan of his property. It is true defendant went upon Chasan’s property, without Chasan’s consent to do so, to obtain the automobile in question that he (defendant) voluntarily relinquished possession over. It is also true that defendant did not have any court order or other form of judicial process giving him the authority of law to tow the automobile away, nor did defendant employ the usual civil remedies to enforce his rights against Chasan. Most certainly we do not condone these improper and flagrant acts of defendant. Apart from this, it is beyond our experience to believe that defendant, in the company of an employee of his firm, who had left a note in Chasan’s mailbox informing Chasan the automobile was taken by him to his garage, had made repairs upon the vehicle and apparently stored the vehicle on the garage premises, intended to permanently deprive Chasan of his automobile or convert the vehicle to his own use.

The State’s argument that the requisite intent was present, pursuant to section 15-3 (c) of the Criminal Code, supra, since defendant intended to return the automobile only after Chasan paid “other compensation for its return” is not controlling here because defendant believed he was entitled to his repair charges, and did not demand such payment as a reward, ransom or other form of coerced tribute. We also do not believe the Liens Act, supra, lends aid or support to the defendant’s contention in the instant appeal, since such Act in no way or form allows the defendant to go upon another’s premises and take the property subject to such lien.

Ordinarily we attach great weight to the determinations of the trial court where it has been the trier of fact. But where, as here, the evidence leaves doubt as to the guilt of an accused, it is our duty to set the conviction aside. People v. Dawson, 22 Ill2d 260, 174 NE2d 817 (1961); People v. DeStefano, 23 Ill2d 427, 178 NE2d 393 (1962).

Accordingly, the judgment of the Circuit Court of Cook County is reversed.

Judgment reversed.

MURPHY and BURMAN, JJ., concur.


author: MR. JUSTICE MURPHY

text:
    Leslie W. Beaven, Plaintiff-Appellee, v. The Village of Palatine, a Municipal Corporation, Defendant-Appellant.
    Gen. No. 52,714.
    First District, First Division.
    February 17, 1969.

      Littlejohn and Glass, of Chicago (Bradley M. Glass, William L. Littlejohn, and James P. McCarthy, of counsel), for appellant.
    Hof eld, Salins & Wener, and Maurice J. Nathanson, of Chicago (Edwin A. Hofeld and Maurice J. Nathanson, of counsel), for appellee.
   MR. JUSTICE MURPHY

delivered the opinion of the court.

This is a zoning case, in which a declaratory judgment action was commenced on December 5, 1956. The defendant Village appeals from a judgment order entered on September 13, 1967, in which the trial court found “from the evidence adduced here that a ready-mix concrete plant is not in fact a nuisance, nor obnoxious or offensive by reason of emission of odor, dust, smoke, gas or noise . . . ,” and plaintiff has “a clear legal right to establish on the above described property a ready-mix concrete plant or any other use permitted in an industrial district under the Zoning Ordinance No. 555 as amended by Ordinance No. 848, in force and effect in the Village of Palatine in the month of October 1956 and thereafter.”

In a previous appeal between the same parties (22 Ill App2d 274, 160 NE2d 702), this court, in an opinion by Justice McCormick filed on May 18, 1959, reversed a summary judgment for plaintiff because there was “a triable issue of fact.” The cause was remanded to the Circuit Court “to take such other and further proceedings as are not inconsistent with this opinion.” The pertinent facts detailed in the previous appeal need not be repeated here.

The issues presented for review on the instant appeal are: (1) Whether the proceedings in the trial court should have been governed by the Administrative Review Act; (2) Whether the judgment of the trial court finding the issues against defendant was contrary to the mandate of the Appellate Court; and (3) Whether the trial court’s judgment order was too broad when said order permitted “any other use” when the only evidence was for a concrete ready-mix plant.

The subject premises are in the Village of Palatine, Illinois, and are part of a triangular tract of land which lies south of and adjacent to the right-of-way of the Chicago and Northwestern Railway and bounded by the railroad right-of-way, Hale Street, and a line parallel to and approximately 150 feet north of Washington Street. The tract consists of an industrial area, in the northwesterly portion of which there is a strip having an average length along the right-of-way of the railroad approximately 130 feet, presently occupied by the Hines Lumber Company for a lumber and building material storage and sales yard. The balance of the triangular tract, including that part which is adjacent to the railroad right-of-way, consists of approximately 95,000 square feet. Since 1951, it was beneficially owned, under a land trust, by plaintiff, Leslie W. Beaven, now deceased. It was used by him for various industrial enterprises. The entire triangular tract, together with that portion occupied by the railroad right-of-way and the Hines Lumber Company, was designated as an industrial district by the zoning ordinance in force and effect within the defendant Village at the time the instant action was commenced. Beaven, on his part of the tract, stored and maintained building equipment, material, hauling trucks, crane, concrete forms and other machinery and supplies incident to construction work.

On October 11, 1956, plaintiff Beaven applied to the defendant Village of Palatine for a permit to erect a “ready-mix concrete” plant. On October 23, 1956, the Village Board of Trustees refused to grant the permit on the ground that the proposed use would be in violation of Village ordinance No. 555 as amended by ordinance No. 848. Plaintiff Beaven on December 5, 1956, filed the instant action for a declaratory judgment in the Circuit Court of Cook County, praying that he be permitted to erect a ready-mix concrete plant. The Village answer set out ordinance No. 555 as amended by ordinance No. 848, which prohibited certain uses in industrial districts “and in general those uses which are in fact nuisances or which may be obnoxious or offensive by reason of emission of odor, dust, smoke, gas or noise.” The Village later amended its answer to allege its enactxnent of a comprehensive zoning ordinance on December 23,1957, which repealed ordinances Nos. 555 and 848 and rezoned plaintiff’s property to a business classification (R C52). The trial court allowed plaintiff’s motion for a summary judgment, which judgment, as previously noted, was reversed in 1959 by this court in 22 Ill App 2d 274, 160 NE2d 702.

On August 30, 1962, plaintiff again applied to the Village for a permit to erect and maintain a “ready-mix concrete” plant. The application was denied on September 12, 1962. Plaintiff then appealed to the Village Zoning Board of Appeals, and a hearing was held before the Board on January 10, 1963, at which time evidence was heard by the Board as to whether the ready-mix concrete plant proposed by plaintiff would be offensive. In June 1963, plaintiff was advised by the Board that his application for relief was denied because the Board found that the ready-mix concrete plant would be “highly objectionable and offensive to the surrounding area by reason of the dust and noise that would result from such use.”

On November 18, 1963, with leave of court, plaintiff filed a “Supplement to Complaint” in the instant cause. Defendant on December 5, 1963, then filed a “Motion to Dismiss Complaint.” The motion was primarily based on the premise that the plaintiff was not entitled to judicial relief “until and unless he has first exhausted his administrative remedies.” The trial court denied the motion, and defendant answered.

On January 5, 1965, the trial court referred the cause to a referee, who heard extensive evidence and rendered his report, in which he found the issues in favor of plaintiff. The report shows that plaintiff (Beaven) died on June 21, 1966, and the executor of his estate was substituted as plaintiff in this cause on October 13, 1966.

The referee’s report states that three witnesses appeared on behalf of plaintiff and three for defendant. In arriving at his “Findings of Fact and Conclusions of Law,” the referee examined and considered all the pleadings, the testimony, the exhibits, and the Appellate Court opinion. From the opinion the referee concluded that the principal issue to be determined by the additional proceedings was “if the use was such that it could become obnoxious or offensive by reason of the emission of odor, dust, smoke, gas or noise.” The referee made fifty-eight findings, which included the following findings of fact:

“FIFTY-ONE: THE MASTER FINDS that the plaintiff and Claude L. Henney are both men who for many years had personal contact with the construction, maintenance and operation of ready-mix plants. Both of their testimony pointed to the following salient undisputed factors about the operation of such a plant:
“(f) . . . There is some noise connected with the movement of the ready-mix trucks, but not any more than the noise created by any three axle six wheel vehicle which can be found operating in any industrial district.
“FIFTY-SIX: THE MASTER FURTHER FINDS from the evidence that the operation of a ready-mix plant on the subject premises would not constitute a nuisance within the meaning of said Ordinance No. 555, as Amended, and would not be obnoxious or offensive by reason of the emission of odors, dust, smoke, gas or noise, and that said use is therefore a permitted use in an Industrial District under said Ordinance.
“FIFTY-SEVEN: The highest and best use of the subject property is for the establishment and maintenance of a ready-mix concrete plant of the type proposed by the plaintiff, and for such use plaintiff’s premises have a value of $1.75 per square foot. If restricted against the use for a ready-mix concrete plant, but for other industrial uses, the property has a value of $1.25 per square foot.”

The referee also made the following “Conclusions of Law”:

“A ready-mix concrete plant is not a nuisance per se. There is nothing about a ready-mix concrete plant that is ‘incompatible with’ an Industrial District, so as to justify a Municipality in prohibiting it therefrom.”

After a hearing, the trial court denied defendant’s exceptions to the referee’s report and approved and adopted all of the findings of the referee, and the court entered its judgment order of September 13, 1967. It is from this order that defendant appeals.

Initially considered is the contention of the defendant Village that “the trial court was limited by the Administrative Review Act to determine if the Zoning Board of Appeal’s decision against plaintiff was against the manifest weight of the evidence, and the said court’s trial of the issues de novo was reversible error.” Defendant Village argues that the finding of the Village Zoning Board of Appeals against plaintiff was a “final administrative determination,” and at this point plaintiff’s only remedy was an appeal under the Administrative Review Act (Ill Rev Stats, c 24, § 11-13-13), where it is said:

“All final administrative decisions of the board of appeals under this Division 13 shall be subject to judicial review pursuant to the provisions of the ‘Administrative Review Act,’ . . .

From this defendant argues that “the scope of review is defined and limited by the terms of that Act and the decisions construing it. This is the crux of defendant’s case,” and “the purpose of the Administrative Review Act is to provide a single uniform method by which decisions of administrative agencies may be judicially reviewed.” Defendant’s authorities include People ex rel. Goldfarb v. White, 54 Ill App2d 483, 203 NE2d 599 (1964), and People ex rel. Phillips v. Board of Education, 83 Ill App2d 154, 227 NE2d 541 (1967), where it is said that the provision of the Administrative Review Act is “to provide a single uniform method by which the decisions of most of the administrative agencies of state government could be judicially reviewed,” and that “other methods of judicial review, whether equitable or common-law modes of review, in use prior to the enactment of the Administrative Review Act, are no longer available.”

In considering the issue, the application of the Administrative Review Act to this case, we note that from the beginning plaintiff has proceeded somewhat irregularly between the administrative body and the trial court. We believe the pronouncements in Van Laten v. City of Chicago, 28 Ill2d 157, 190 NE2d 717 (1963), supply the guidelines to be applied here. There the Supreme Court affirmed a declaratory judgment finding a zoning ordinance void as applied to several pieces of property of the plaintiffs, and said (p 159):

“The city now seeks to invoke the Bright doctrine, (Bright v. City of Evanston, 10 Ill2d 178), and asserts that plaintiffs’ action is premature since they failed to seek a further amendment. As we stated in County of Lake v. MacNeal, 24 Ill2d 253, 259: ‘The Bright rule did not stem from legislative or constitutional command, but is no more than an expression of judicial policy prompted by the circumstance that zoning is legislative and administrative in nature, not judicial, and which is aimed at providing the local authority an opportunity to correct error and to settle disputes locally before there is judicial intervention. [Citations.]’ And again, at page 260, ‘To compel a property owner to first seek local relief in the face of the demonstrated attitude of the local authority, would be a patently useless step which would increase costs, promote circuity of action and delay the administration of justice.’ (See also Herman v. Village of Hillside, 15 Ill2d 396; Westfield v. City of Chicago, 26 Ill2d 526.) Other jurisdictions which have an ‘exhaustion rule’ have adopted a similar view. . . . Here, the city has twice amended its zoning ordinance since suit was filed. The 1960 amendment affecting practically the identical area involved in the litigation followed the filing of the master’s report by only 12 days. Twice it had an opportunity to correct inequities, if such they were. The 1960 amendment changing the classification was in the face of an adverse recommendation by the master after the evidence had been taken, and its adoption caused a re-reference and further delay. If this procedure were condoned, it could go on ad infinitum, and would defeat one of the purposes of the Bright rule, namely, to prevent delay in the administration of justice. Under the circumstances presented, we are of the opinion that seeking a further amendment would have been futile and therefore the Bright rule does not apply.”

In the opinion filed in the previous appeal (22 Ill App2d 274, 160 NE2d 702), it is stated (p 279) :

“From the record before us it does not appear that there was a final decision of an administrative body which would require the appeal to be taken under the provisions of the Administrative Review Act. From the record we cannot say whether the plaintiff did or did not exhaust his administrative remedies. This question was not raised in the trial court. The fact that it was not and was first raised on appeal, standing alone, would not prevent our passing on the question.”

From the foregoing, we believe the issue of exhaustion of remedies was found by the Appellate Court to be without merit, and as that issue was not included in the mandate directions, the trial court properly decided that that question was not open to consideration by the trial court.

As to the question as to whether the trial court was limited on remand and that the “court’s trial of the issues de novo was reversible error,” we note that the Appellate Court opinion remanded “the cause to the Circuit Court to take such other and further proceedings as are not inconsistent with this opinion.”

On this issue, we believe the guidelines are supplied in Village of Oak Park v. Swigart, 266 Ill 60, 107 NE 158 (1914), where it is said (p 61):

“It is the settled rule, also, that where a cause is redocketed after litigation is prosecuted to a court of review and passed upon, not only the questions that were raised and considered, but also all that could have been raised and passed upon, are res judicata whether they were raised or not. ... It would be an intolerable practice to permit objectors to have their legal objections heard by piecemeal. It is no hardship for them to be compelled to bring forward all their objections at the same time. ... If a judgment is reversed and the cause remanded, the inferior tribunal can only take such further proceedings as conform to the finding of the appellate tribunal, and if specific directions are given nothing can be done except to carry out such directions.”

See, also, Paulus v. Smith, 93 Ill App2d 84, 88, 235 NE2d 292 (1968).

We conclude the previous opinion of this court and the remanding order were so framed as to give sound discretion to the trial court to determine what further proceedings were “not inconsistent with this opinion,” including the taking and consideration of additional evidence in the area designated as a “triable issue of fact.” Therefore, we hold that the proceedings in the trial court on remandment conformed to the remanding directions.

Considered next is defendant’s contention that even if the plaintiff had not been required to proceed under the Administrative Review Act, the evidence was insufficient in law and in fact to support the trial court’s findings of the issues in favor of plaintiff and, in particular, its finding that the operation of a ready-mix concrete plant would not be obnoxious or offensive by reason of the emission of odors, dust, smoke or noise.

Defendant also asserts that the trial court did not comply with the mandate of this court, in that the trial court failed to make findings of fact “as to the number of mixing trucks which would be employed or the noise, odors, etc. which might result from their operation.”

As asserted by defendant, neither the report nor the judgment order made any findings of fact “as to the number of mixing trucks which would be employed.” We do not agree with defendant that this failure was reversible error. After examining the referee’s report and the judgment order, we find that the report contains a lengthy resume of the testimony regarding the operation of a ready-mix concrete plant, including the use of trucks and the finding that the noise incident to the trucks was not any more than the noise created by trucks of similar size operating in any industrial district. This finding and the relevant evidence on the use of trucks was sufficient compliance with the remanding order.

After examining this record, and without further discussion of the evidence considered by the trial court on remand, we conclude there was enough competent evidence to sustain that part of the judgment order which dealt with “a ready-mix concrete plant,” and that part of the judgment order is not against the manifest weight of the evidence and should not be disturbed. Lucey v. Shelton, 24 Ill2d 471, 476, 182 NE2d 215 (1962).

Considered last is defendant’s contention that “the trial court exceeded its authority in adjudging that plaintiff has a ‘clear legal right’ to establish any use permitted in an industrial district when the only evidence presented was for the erection and maintenance of a ready-mix concrete plant.” Defendant argues that the trial court erred in permitting “any use” under the repealed Village ordinance, and that “the issue as to the retroactive application of the comprehensive zoning ordinance, excluding plaintiff’s proposed ready-mix use, passed after plaintiff’s first application, was disposed of by this Court (Appellate) in the previous appeal (at p 282):

“ ‘In its order for the declaratory judgment the [trial] court found that such ordinance could not be given retroactive effect to prevent the establishment of the said plant. If under any circumstances under its terms the ordinance could be invoked in the case it could not be held to operate retroactively against the plaintiff ....’”

In considering this contention, we note that this entire litigation has been centered and shaped upon a specific use, “a ready-mix concrete plant.” No applieation or evidence was made or offered by plaintiff to use the property for any purpose except as a ready-mix concrete plant. The opinion of this court, in its reversal of the summary judgment and its remanding mandate, was framed in the terms of that use. Therefore, that part of the judgment order which includes “any other use permitted in an industrial district” does not conform to the remanding directions of this court. It is not consistent with the opinion and should be reversed.

For the reasons set forth, we reverse that part of the judgment order which authorizes “any other use permitted in an industrial district under the Village of Palatine Zoning Ordinance No. 555 as amended by its Ordinance No. 848 in force and effect in the Village of Palatine in the month of October 1956 and thereafter.” As amended, the judgment order entered on September 13,1967, is affirmed.

Reversed in part and affirmed in part.

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


text:
    Myron Keel, d/b/a M & K Remodeling, PlaintiffAppellee, v. Frank Kostka, Defendant-Appellant.
    Gen. No. 52,810.
    First District, First Division.
    February 17, 1969.

      Albert Koretzky, of Chicago, for appellant.

      Weisman and Weisman, of Chicago (Jay Weisman, of counsel), for appellee.
   ME. JUSTICE BUEMAN

delivered the opinion of the court.

Defendant appeals from the order of October 20, 1967, denying his petition to vacate a default judgment entered against him on May 19,1966.

The record reveals that the plaintiff, Myron Keel, d/b/a M & K Eemodeling, filed a complaint on April 28, 1966, seeking judgment in a contract action against the defendant, Frank Kostka. The plaintiff alleged in his complaint that during the months of May, June and July of 1965 he “performed certain labor and furnished materials for the remodeling of the properties owned, operated and managed by the defendant” at five different specified locations; “[t]hat there is due and owing the plaintiff, from the defendant the sum of $2,259.00”; and “[t]hat the plaintiff has often requested the above amount and the defendant has failed to make said payment.” The summons issued showed that personal service was made on the defendant on May 12, 1966.

On May 19, 1966, after no appearance was filed by the defendant, he was found to be in default and the trial court entered an ex parte judgment in favor of the plaintiff in the sum of $2,259 and costs. Thereafter, two citations to discover assets were issued against the defendant, but both were returned “not found.” On July 15, 1966, an affidavit for garnishment was filed and a garnishment summons was served on the Lawndale National Bank on July 18, 1966, garnishing the defendant’s bank account.

A special and limited appearance was then filed on July 25, 1966, on behalf of the defendant for the specific purpose of contesting the jurisdiction of the court. The defendant urged the court to vacate the default judgment for lack of jurisdiction, on the ground that he, the defendant, had not been served with summons and that he had first learned of the judgment against him on July 19, 1966, when the Lawndale National Bank notified him of the garnishment proceeding. The defendant’s motion was continued several times until August 29, 1966, when an order was entered denying the motion to vacate the judgment.

On August 31, 1966, two days after the trial court denied the defendant’s motion to vacate the default judgment for lack of jurisdiction, the defendant filed a verified written motion to vacate the default judgment. In his motion the defendant alleged, among other things, that he was never served with summons of service; that he first learned of the judgment on July 19, 1966, when he received notice from his bank that his bank account had been garnisheed; that he had a good and meritorious defense to the plaintiff’s alleged cause of action; and that the plaintiff’s complaint was defective and failed to show a cause of action. While this motion was pending, the defendant filed another verified motion in which one of the allegations was that the defendant had a good and meritorious defense to the plaintiff’s complaint “in that the work allegedly done by the plaintiff was not in fact done in any part.” On October 20, 1967, the court entered an order denying the defendant’s motions to vacate the default judgment. It is from this order that the defendant appeals.

The defendant contends that the court erred on October 20, 1967, in denying his motion to vacate the default judgment of May 19, 1966, because the trial court failed to consider (1) the circumstances surrounding the entry of the default judgment; (2) the meritorious defense set forth in the defendant’s motion; (3) the defendant’s diligence in presenting his motion; (4) the plaintiff’s delay in executing the default judgment for more than thirty days; (5) that a trial on the merits would not prejudice plaintiff nor work a hardship on him; and (6) that the plaintiff’s complaint does not state a cause of action.

It is the principal contention of the plaintiff that the court correctly denied the defendant’s motion to vacate the default judgment because the denial of the first motion to vacate the judgment on August 29, 1966, precluded subsequent motions to vacate. The plaintiff cites Abbey Elec. Co. v. Simpson, 98 Ill App2d 463, 240 NE2d 278, and In re Estate of Schwartz, 63 Ill App2d 456, 212 NE2d 329, in support of his contention.

In Abbey Electric Co., supra, the court was confronted with the situation of the defendant moving three times to vacate a default judgment. All three petitions to vacate relied on the same grounds. The third time the defendant moved to vacate judgment the trial court granted the motion and the plaintiff appealed. The Appellate Court, in reversing the order of the trial court, found that the defendant’s third petition “relied on the same grounds for vacatur as had been twice ruled on unfavorably by the trial court; that the defendant did not contest the entry of the default judgment although proper notice had been served; and that thereafter the defendant did not proceed with diligence.”

In In re Estate of Schwartz, supra, the second case relied on by the plaintiff, the court stated that it was not authorized to consider the motion to vacate made by the proponents of the purported will more than thirty days after the entry of the order. The motion the court refused to review was the second motion to vacate made by the petitioners. The court held that the motion merely restated the same grounds of the first motion, though expanded in detail and accompanied by extensive argument and citation of authorities.

In the case at bar, the successive motions to vacate are based on entirely different grounds. The first motion, that of July 25, 1966, involved the defendant’s claim that he never had been served with summons and that, therefore, the trial court lacked jurisdiction over his person and the default judgment was void. Janove v. Bacon, 6 Ill2d 245, 128 NE2d 706. Two days after the defendant’s motion asking relief from the alleged void judgment was denied, the defendant filed his second motion to vacate under section 72 of the Civil Practice Act (Ill Rev Stats 1967, c 110, § 72). The second motion did not attempt to relitigate the question of jurisdiction raised in the first motion to vacate, but rather recited what had occurred at the hearing of defendant’s first motion; set forth the defendant’s meritorious defense, stated the defendant’s diligence, and alleged the failure of the plaintiff’s complaint to state a cause of action. The defendant’s third motion to vacate was in the nature of an amendment to his second motion. As we stated in Mabion v. Olds, 84 Ill App2d 291, 228 NE2d 188, a motion challenging the jurisdiction of a trial court is not in the nature of a section 72 petition. Since a motion challenging jurisdiction and a motion to vacate under section 72 are entirely different motions, based on different grounds and do not litigate the same matters, the cases cited by the plaintiff in support of his contention are not applicable to the instant case.

The plaintiff’s second contention states that the several motions to vacate the default judgment failed to meet the requirements of section 72 of the Civil Practice Act (Ill Rev Stats 1967, c 110, § 72). This second contention is grounded in the assertions that defendant’s subsequent motions did not allege that the facts contained therein were unknown to the defendant at the time he filed his original motion to vacate, that the defendant did not allege what his good and meritorious defense was, and that the defendant did not show due diligence. We are not in accord.

The record shows that the defendant was never served with an execution, that he filed his first motion to vacate shortly after his bank informed him of the garnishment proceedings, and that he immediately filed his second motion, which unlike the first was addressed to the equitable powers of the court pursuant to section 72, after the court had denied his first motion challenging the trial court’s jurisdiction. This sequence of events, we feel, is sufficient to establish the defendant’s diligence.

We also cannot agree with the plaintiff’s contention that the defendant’s allegation of a good and meritorious defense was insufficient. The plaintiff’s complaint contained the bare allegation that the plaintiff performed labor and furnished materials at several properties owned by the defendant, and as a result the defendant owed him the sum of $2,259. The complaint did not detail what work had been completed at the various buildings, allege any agreement about price, recite whether any monies had already been paid, or specify what was due and owing on each property. In the amendment to his second motion to vacate, the defendant denied that the plaintiff did any work on the buildings during the months claimed by the plaintiff. We believe that this allegation, if true, sufficiently shows a good and meritorious defense to the plaintiff’s complaint.

The power to set aside a default and permit a defendant to have his day in court is based upon substantial principles of right and wrong and is to be exercised for the prevention of injury and for the furtherance of justice. Spencer v. American United Cab Ass’n, 59 Ill App2d 165, 208 NE2d 118. We believe that under all the facts and circumstances of this particular case that the equitable power of the court should be exercised to afford the defendant his proper day in court. A trial on the merits will not prejudice the plaintiff or result in a hardship to him. Such a trial will merely assure both parties a day in court in order to obtain a fair determination of their case. Goebel v. Benefit Trust Life Ins. Co., 88 Ill App2d 19, 232 NE2d 211.

For the reasons given, the order of the trial court denying the defendant relief is reversed and the cause remanded with directions to vacate and set aside the judgment and order of default, and to allow the defendant to appear and defend.

Reversed and remanded with directions.

ADESKO, P. J. and MURPHY, J., concur.


text:
    Rocking H. Stables, Inc., Greentree Stables, Inc., Happy Day Riding Academy, Inc., West Town Stables, Inc., and Little Acres Stables, Inc., Plaintiffs-Appellees, v. Village of Norridge, a Municipal Corporation, Defendant-Appellant.
    Gen. No. 52,919.
    First District, First Division.
    February 17, 1969.

      Bernard J. Hennessy, of Chicago (Schultz, Hennessy & McGrath, of counsel), for appellant.
    Edward L. S. Arkema and Jack M. Siegel, of Chicago, for appellees.
   MR. JUSTICE MURPHY

delivered the opinion of the court.

This is a declaratory judgment proceeding brought by the owners of five livery stables located in and licensed by the defendant Village of Norridge. After a nonjury trial, the trial court entered a judgment order, which declared “unconstitutional, invalid and void” three Village ordinances which regulated the movement of horses and hayracks. The decree included the grant of a permanent injunction against the enforcement of the ordinances.

Defendant appeals and contends that the basic issue is whether defendant’s ordinances, which were held to be unconstitutional and invalid by the trial court, are reasonable and constitutional and represent a proper exercise of the legislative authority granted it by the Illinois General Assembly and are in furtherance of its police power and obligation to preserve and maintain the general health and welfare of its citizens.

The three Village of Norridge ordinances in question are Nos. 89, 235 and 358, § 8-C. No. 89 provides:

“HAY RACKS PROHIBITED.
“No hay rack shall be operated or allowed to remain upon any street after the hour of 6:00 o’clock in the evening or before 6:00 o’clock in the forenoon.”
Passed and approved November 23, 1955.

No. 235 provides:

“OTHER NUISANCES: It is hereby declared to be a nuisance for any person to ride horses on the Streets, Sidewalks, Alleys or Parkways of the Village.”
Passed and approved May 10,1961.

No. 358, § 8-C, provides:

“HOURS FOR BUSINESS: No person conducting a riding stable shall rent or let for hire any horse to be ridden during the time between sunset and sunrise of the following morning, sunrise and sunset to be determined by a standard calendar or almanac giving the time of sunrise and sunset of the day of such letting or hiring, nor shall any horse be permitted off the premises of the riding stable during the time between sunset and sunrise.”
Passed and approved September 9,1964.

The witnesses for the plaintiffs included the operator of each stable and a real estate appraiser, who testified that the total value of the five stable properties was $705,000. The Mayor and the Chief of Police of the defendant Village testified as adverse witnesses under section 60 of the Civil Practice Act and also on behalf of the Village.

The Mayor, Joseph Sieb, as an adverse witness, testified that he was the Mayor at the time the three ordinances in question were enacted. On June 28, 1967, he conducted a meeting with the stable owners and told them the area in which they were operating had undergone considerable development so that stable traffic had become hazardous. The Village had received complaints regarding trampled lawns and horses being ridden upon sidewalks and, as a result, the three ordinances would be enforced. He had never made a study of what would be the proper regulations and provisions for safety on Lawrence Avenue or on East River Road with respect to the operation of a hayrack, nor had he ever received a report with respect to the subject. He stated that there was no minimum speed on Lawrence Avenue, and if the hayracks were lighted on the front and back, or if they were escorted by a car or a truck with flashing lights, they would still be a hazard on Lawrence Avenue because of the speed at which they travel.

The Mayor further testified that prior to the construction of the apartment buildings on Lawrence Avenue, there was no shoulder on the road, and that riders previously had used what is now the parkway to ride when leaving the Rocking H and adjacent stables; that with respect to Greentree Stables, a rider would only have to travel 50 feet to the center of the street, at which time he would be in the City of Chicago; that the same situation existed with respect to Happy Day Stables, where a rider travels a short distance to the intersection and is then in the Cook County Forest Preserve Trail.

Testifying for the Village, the Mayor stated that, in his opinion, any horse or horse-drawn vehicle on the street after dark becomes a hazard, as there is no identification visible to the motorists. Hayracks are usually identified with a lantern beneath the tailgate, and being slow-moving vehicles are difficult to see. He had received complaints from residents about manure being on the sidewalks in front of their homes. He had ordered barricades be placed on Lawrence Avenue so as to screen people riding horses from motor vehicles on Lawrence Avenue.

The Chief of Police, as an adverse witness, testified that he had been Chief for the last 15 years; that he had never made a study with respect to the operation of hay-racks on public highways; that a flasher light on a vehicle has no effect on traffic approaching from the rear; and that Lawrence Avenue carries a heavy volume of traffic to O’Hare Field. As a witness for the Village, he testified that he had personally observed hayracks and horses being operated on the streets of the Village after dark for many years. The condition has changed in the past six or seven years, in that the area where the stables are located has been built up. The hayracks moved at about five miles an hour, and the horses travel about ten miles an hour. The hayracks normally operated in convoys of about three, and they are a hazard by reason of the speed at which they travel and the way they are lighted. The speed limit on Lawrence Avenue is 40 miles an hour, and a motorist would have to be between 50 to 75 feet from a hayrack before he would see it. He further testified that a motorist would be right on top of a horse before he could see it because there would be no lighting whatever. The barricades put on Lawrence Avenue by the Village, so that motorists would travel closer to the center of the street, reduced Lawrence Avenue to a 3-lane road.

Roy Wiberg, the operator of Happy Day Riding Academy, testified that he had about 100 stalls. He had approximately 40 horses for boarding and operated five hayracks. During the time that he had been operating (since 1957), only one hayrack had been involved in an accident. The greatest amount of hayrack rides occurred from 8:00 to 10:00 in the evening. Saturday night was the heaviest night for hayrack operations, and these usually occur from 6:00 in the evening until midnight. The hayracks are lighted with flashpots on both sides and back, but the horses do not carry any lights. Horses leaving the Happy Day Stables had to travel only 50 feet to leave the Village. A large percent of his horses use the Cook County Forest Preserve riding trails, and if he could not permit horses to leave his premises after sundown, it might possibly put him out of business.

Herbert Holm, the operator of Rocking H Stables for the past 15 years, testified that he maintained about 65 horses and operated four hayracks; that most of the hay-rack operations are conducted in the evening. His stable was situated on the north side of Lawrence Avenue at the corner of Greenwood and Lawrence. Horses leaving his stable travel approximately four to five blocks along the north side of Lawrence down to East River Road, which is controlled by an electric traffic signal, and enter the Forest Preserve Trail at that point. If the ordinances in question were enforced, his business would be greatly reduced, since boarders would not be able to ride their horses in the evening. On cross-examination he stated the horses and hayracks from his stable used Lawrence Avenue.

Peter Gaudio, operator of Little Acres Stables, testified that he has three hayracks which are used on Friday and Saturday nights and do not start until 7:00 in the evening, and if the present ordinances were enforced, he would be put out of businss.

The remaining two stable operators did not operate hayracks, and the ordinance in question would have little or no effect on their stables because of their locations.

The judgment order declared that the ordinances in question were “unconstitutional, invalid and void and of no effect,” and granted “a permanent Writ of Injunetion” enjoining the defendant Village and its “agents, servants and employees” from enforcing the ordinances in question.

In the consideration of defendant’s contentions, it is noted that during oral argument the defendant Village conceded the invalidity of ordinance No. 235 and did not argue its merits. The pertinent portions were:

“OTHER NUISANCES: It is hereby declared to be a nuisance for any person to ride horses on the Streets, Sidewalks, Alleys or Parkways of the Village.”

As to the remaining ordinances in question (Nos. 89 and 358, § 8-C), it is defendant’s contention that it had clear legislative authority to enact ordinances of the type held invalid in the instant case. Defendant asserts that a fair reading of sections 11-80-2 to 11-80-22 of the Cities and Villages Act (Ill Rev Stats c 24) clearly demonstrates that the Illinois legislature has conferred upon municipalities a general power and duty to regulate the use of streets and sidewalks and traffic upon streets and sidewalks within its geographical composition, and to restrain by ordinance the danger confronting the public from the use of its streets and sidewalks by plaintiffs’ horses and horse-drawn vehicles.

Defendant argues that the evidence in this case clearly demonstrated the following: (a) that horses used for riding purposes use the streets of defendant to reach a riding trail in the Forest Preserve; that they move at a relatively slow rate of speed and, of course, are not lighted at night; (b) that the so-called hayrack vehicles use the streets of Norridge; that they move at the rate of six miles per hour; that they are usually on the streets after dark; and (c) that one of the defendant’s streets used by horses and horse-drawn vehicles both day and night is Lawrence Avenue, which is a heavily traveled 4-lane through street with a speed limit of 40 miles per hour for motor vehicles.

Plaintiffs contend that the ordinances in question go well beyond the regulation of the public streets and are unreasonable and prohibitive. Plaintiffs state “that not a single accident on the public streets was offered in support” of the testimony of the Mayor and the Chief of Police in the claim of the Village that horses and horse-drawn vehicles on defendant’s streets after dark are hazardous—“there was no testimony with respect to any contact between automobiles and horses. The only incidents cited were cases where riders were thrown by horses, not within the Village and not on Village streets, but on the Forest Preserve bridle paths. It is clear that the record falls far short of showing that the riding of horses on the public streets of the Village constitutes a nuisance in fact.” The evidence shows conclusively that the peak traffic on Lawrence Avenue, the one street with which the Village seems most concerned, is reached between 4:00 p. m. and 6:00 p. m. In fact after 6:00 and on weekends there is no substantial traffic on Lawrence Avenue nor is there any evidence of any substantial traffic on any streets within the corporate limits after 6:00. . . . The record is absolutely devoid of any factual basis for prohibiting hayracks during the hours in question.” Plaintiffs also note “the fact that some 12 years had elapsed between the enactment of the first ordinance in question and the effort to enforce the ordinances. The accidents that the Chief referred to were accidents that happened in the Forest Preserve beyond the Village jurisdiction.”

Plaintiffs further argue that the trial judge specifically found that the ordinance in question bore no reasonable relationship to the public health, safety, morals and welfare, and that the ordinances imposed an impossible burden on the plaintiffs in the operation of their business and in effect prohibited the operation of the business without statutory authority and without a reasonable relationship to the public health, safety, morals and welfare.

After examining the authorities cited by each side on the issues here, we believe the following pronouncements are controlling:

“The streets and alleys of a city are held in trust by the municipality for the use of the public, for purposes of travel thereon and as a means of access to and egress from buildings abutting thereon or lots adjacent thereto. . . . The right of the public to use the streets is the right to use them for purposes of travel in the recognized methods in which the public highways of the State are used. Any method of travel may be adopted by individual members of the public which is an ordinary method of locomotion, or even an extraordinary method, if it is not, of itself, calculated to prevent a reasonably safe use of the street by others.” City of Chicago v. Collins, 175 Ill 445, 455, 51 NE 907 (1898).
“Neither a municipal corporation nor the legislature may interfere, under the guise of a police regulation, with the liberty of the citizen in the conduct of his business, legitimate and harmless in its essential character, beyond a point reasonably required for the protection of the public. It is for the judiciary to ascertain and declare the limitation.” Lowenthal v. City of Chicago, 313 Ill 190, 194, 144 NE 829 (1924).
“The basic purpose of a street is to afford a way for traffic, both pedestrian' and vehicular, to the public, and the public is rightfully entitled to the use of such thoroughfare free of all obstructions and impedimenta which tend to delay or obstruct traffic or annoy the public in the use of the streets. . . . Inasmuch as we hold that the city was acting within the terms of the legislative grants to it in enacting the ordinance about which the controversy has here arisen, the burden is upon the defendant to show that the ordinance is unreasonable.” City of Chicago v. Rhine, 363 Ill 619, 622, 2 NE2d 905 (1936).

In Good Humor Corp. v. Village of Mundelein, 33 Ill2d 252, 211 NE2d 269 (1965), the court said (p 255) :

“We consider first the authority of the village to enact the ordinance. The General Assembly has granted municipalities the following relevant powers: ‘The corporate authorities of each municipality may regulate the use of the streets and other municipal property. . . . The corporate authorities of each municipality may prevent and regulate all amusements and activities having a tendency to annoy or endanger persons or property on the sidewalks, streets, and other municipal property.
“We believe the utterance of the court in the Busse case [240 Ill 338] that the power to regulate is not the power to prohibit cannot be accepted as a general principle of law.” (P 257.)
“We hold that the ordinance enacted by the village was within the powers delegated to it by the General Assembly, and we thus reach the plaintiff’s contention that the ordinance deprives it of its property without due process of law.” (P 258.)
“So far as the plaintiff is concerned, what the ordinance prohibits is its use of the streets for the transportation of a traveling ice-cream store from place to place on the public streets in search of customers.
“The assumed property right upon which the plaintiff’s case against the validity of the ordinance is based is nonexistent. As this court pointed out in City of Chicago v. Rhine, ‘The defendant had no property right in the use of any of the streets of Chicago for the location and maintenance of his business. He was therefore not deprived of liberty and property without due process of law (P 259.)
“In determining issues similar to the situation here presented, we have adhered to the rule that regulation must be a reasonable exercise of the authority granted. . . . The regulation of city streets is an ever changing problem. No final or absolute rule can be laid down to determine reasonableness, . . . but the circumstances of each particular situation, viewed in the light of the purpose sought to be accomplished, must be weighed.” Chicago Nat. Bank v. Chicago Heights, 14 Ill2d 135, 138, 150 NE2d 827 (1958).

From the foregoing authorities, we think it is clear that public streets exist to facilitate transportation, and activities that interfere or prevent that end should be controlled or not permitted in a proper case. After considering the evidence here, we conclude that the use of horses and hayracks in the manner detailed might properly be viewed as an amusement and an activity having a tendency to endanger persons on the streets of the Village. We also conclude that the assumed property rights, which plaintiffs assert would be practically prohibited by enforcement of the subject ordinances, are nonexistent. 33 Ill2d 252, 259, 211 NE2d 269.

We believe that such regulation as is undertaken by the Village in the subject ordinances is within the powers delegated to the Village by the General Assembly to regulate the use of streets in promotion of the general welfare. The determinative issue, therefore, is whether ordinances Nos. 89 and 358 are reasonably designed to achieve this end. In our view of the evidence, the ordinances are unreasonably sweeping in limitations of time and area. There is no indication that the Lawrence Avenue traffic conditions are prevalent on ail of the Village streets or that the entire period of proscription is required. Neither the Mayor nor the Police Chief made any study of what would be proper regulations and provisions for safety of Lawrence Avenue or the use of other streets, or whether a more limited period of time might accomplish the basic purpose of eliminating or reducing a traffic hazard. There is no substantial showing that it was necessary that ordinance No. 89 apply to all Village streets or that the time limitations of ordinance No. 358, § 8-C, was required in the entire Village. We conclude that the record shows that these ordinances, as enacted, are not reasonably designed to promote the general welfare of the public in the use of streets.

Although we find that Village ordinances Nos. 89 and 358 were within the powers delegated to the Village by the General Assembly, we hold they do not meet the test of reasonableness in their time limitations and area covered. Therefore, the judgment order which declared Village ordinances Nos. 89, 235 and 358 void and granted a permanent injunction against their enforcement is affirmed.

Affirmed.

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


text:
    Andrzej Kafoak, Plaintiff, v. Thor Power Tool Co., a Corporation, Defendant, Third-Party Plaintiff, Appellant, v. Bartlett-Snow-Pacific, Inc., a Foreign Corporation, Third-Party Defendant, Appellee.
    Gen. No, 52,950.
    First District, First Division.
    February 17, 1969.

      Clausen, Hirsh, Miller & Gorman, of Chicago (Herbert W. Hirsh, John ft. Caffrey, and James T. Ferrini, of counsel), for appellant.
    McDermott, Will & Emery, of Chicago (Hamilton Smith and Frank J. Uvena, of counsel), for appellee.
   MR. JUSTICE MURPHY

delivered the opinion of the court.

This is a personal injury action filed in Illinois for injuries sustained in Ohio, when an emery wheel shattered as plaintiff operated a portable grinding machine belonging to his employer, Bartlett-Snow-Pacific, Inc., of Cleveland, Ohio.

Defendant, Thor Power Tool Co., which manufactured the machine in Illinois and “directly or indirectly” sold it to plaintiff’s employer, filed an answer denying the material allegations of plaintiff’s complaint. Thor also filed a third-party complaint against “Bartlett,” alleging that “Thor’s” negligence, if any, was passive, and charging third-party defendant (Bartlett) with active negligence and ultimate responsibility for plaintiff’s injuries. The third-party complaint was dismissed on third-party defendant’s motion, based on three grounds. Third-party plaintiff (Thor) appeals.

On appeal the determinative question is whether Bartlett, the third-party defendant, which had complied with the Ohio Workmen’s Compensation Act, was relieved of further liability. No evidence was taken in the trial court, and the questions presented are based upon the pleadings, and exhibits filed by the third-party defendant (Bartlett).

The Ohio Code, article II, section 35, authorizes the creation of a State Workmen’s Compensation fund and provides, with respect thereto:

“Such compensation shall be in lieu of all other rights to compensation, or damages, for such death, injuries, or occupational disease, and any employer who pays the premium or compensation provided by law, passed in accordance herewith, shall not be liable to respond in damages at common law or by statute for such death, injuries, or occupational disease . . .

The Ohio Code, section 4123.74 provides, with reference to compensation benefits paid injured employees:

“Employers who comply with Section 4123.35 of the Revised Code shall not be liable to respond in damages at common law or by statute for any injury, or occupational disease, or bodily condition, received or contracted by any employee in the course of or arising out of his employment, or for any death resulting from such injury, occupational disease, or bodily condition . . . whether or not such injury, occupational disease, bodily condition or death is compensable under Sections 4123.01 to 4123.94, inclusive, of the Revised Code.”

Bartlett, third-party defendant, asserts that the foregoing provisions have been construed as immunizing employers from actions by third parties, and that Bankers Indemnity Ins. Co. v. Cleveland Hardware & Forging Co., 77 Ohio App 121, 62 NE2d 180 (1945), is directly in point. Bartlett states: “In that case, an employee was killed in the course of his employment by an explosion. His estate filed suit against an oxygen company, alleging that the explosion resulted from the negligent delivery by the oxygen company to the decedent’s employer of oxygen instead of nitrogen. The suit was settled by the oxygen company’s insurer which, subrogated to the rights of the oxygen company, brought suit against the employer on an active-passive negligence theory. The Court held that since the employer had complied with the Ohio Workmen’s Compensation Act, it could not be held accountable to the insurance company or its insured.” Also cited is Republic Steel Corp. v. Glaros, 12 Ohio App2d 29, 230 NE2d 667 (1967).

Initially, we consider Thor’s assertion that because the right of indemnification has been characterized and construed as a right, separate and distinct from plaintiff’s rights in the prime action, Thor’s right of indemnification should be determined by the law of Illinois. (Moroni v. Intrusion-Prepakt, Inc., 24 Ill App2d 534, 165 NE2d 346 (1960).) Thor states that “sound reason supports the view that the right of indemnity is independent of the tort from which it arises. It is an obligation created by the law to prevent unjust enrichment and should in the instant case be determined by the law of Illinois.” We disagree. This factor is not determinative of the forum. We believe that an indemnification action, such as alleged here, must be considered in the light of the basic tort action from which it springs, and its prosecution is to be determined by the law found to be applicable to the original tort action, as discussed hereafter.

Thor next contends that “comity, the principle by which Illinois has the option of applying the lex loci delicti, does not compel such application. Clubb v. Clubb, 402 Ill 390, 84 NE2d 366, 371 (1949). Indeed the rule requiring such applications has come into general disrepute. Realization of the unjust and anomalous results which often inure from application of that traditional, but mechanical, rule has prompted application of the law of the forum in situations where the interest of the forum is substantial.” Cited in support is Griffith v. United Air Lines, Inc., 416 Pa 1, 203 A2d 796, 801 (1964), where the court stated:

“This place of the injury rule, sometimes termed the lex loci delicti rule, has been the subject of severe criticism in recent years. . . .
“The basic theme running through the attacks on the place of the injury rule is that wooden application of a few overly simple rules, based on the outmoded ‘vested rights theory,’ cannot solve the complex problems which arise in modern litigation and may often yield harsh, unnecessary and unjust results.”

Thor further argues that the Ohio law contravenes basic Illinois public policy. “Thor, a resident of Illinois, conducts its manufacturing and sales operations in this state in accordance with Illinois law; nevertheless Bartlett, a resident of Ohio, seeks to use the Illinois judicial system to deprive Thor of the safeguards and guarantees of Illinois law.”

Thor further argues that the Ohio statute, as interpreted by the Ohio Appellate Court (77 Ohio App 121), is repugnant to established concepts of justice; it would prejudice the interests of an Illinois resident by confiscation and destruction of rights which lie entirely outside Ohio; following that law, the trial court erroneously barred an Illinois resident, only technically liable under Illinois law, from recovery against the ultimate delinquent, simply because the accident fortuitously occurred beyond Illinois borders.

Thor asserts that application of the Ohio statute in Illinois would violate the guarantees of due process of law and equal protection of the laws under the Federal and Illinois Constitutions, as well as section 22 of article IV of the Illinois Constitution, forbidding special laws granting special privileges and immunities, and the policy of the state Constitution set forth in section 19 of article II providing that every person ought to find a remedy in the law for all injuries and wrongs received. Thor maintains “the Ohio law extends its regulation beyond the employer-employee relationship, unreasonably and arbitrarily interfering with the rights of one not a party thereto. The constitutionality of such regulation in the circumstances now presented has not yet been passed upon.”

Bartlett, third-party defendant, contends that it is the law of Ohio that if an Ohio employee receives compensation under the Ohio Workmen’s Compensation Act, his Ohio employer cannot be required to indemnify a manufacturer who was held liable to pay damages to the employee for injuries suffered by reason of the manufacturer’s negligence; therefore, Bartlett, having paid “Kabak” under the Ohio Workmen’s Compensation Act, is relieved from further liability and specifically of liability to indemnify Thor for any damages which Thor may ultimately have to pay to Kabak. Bartlett maintains that the constitutional provisions which Thor contends have been violated “were not intended to apply under circumstances such as these. If they were, choice of law might become a choice of which state’s constitutional provisions should be violated, and Illinois residents injuring others in other jurisdictions could claim the protection of Illinois law whenever Illinois law proved more favorable than that of the jurisdiction in which the injury occurred.” We agree.

Of the authorities cited by Bartlett, we believe the factual situation in Elston v. Industrial Lift Truck Co., 420 Pa 97, 216 A2d 318 (1966), is similar to the instant case, and we find the Pennsylvania court’s reasoning to be most persuasive. In that case a Pennsylvania resident employed in New Jersey sustained an injury in New Jersey in the course of his employment and recovered benefits under the New Jersey Workmen’s Compensation Act. Subsequently, he filed suit in Pennsylvania against the manufacturer of the product which caused his injury. In turn, the manufacturer, a Pennsylvania corporation, filed a third-party complaint seeking contribution from the employer. The manufacturer conceded that New Jersey law barred its action for contribution but contended that Pennsylvania law should control. The Pennsylvania Supreme Court held that New Jersey law applied because compensation had been paid under the New Jersey Workmen’s Compensation Act. The court stated (p 323):

“Such deference to the exclusivity feature of the workmen’s compensation law of a state having a significant interest in the work-connected injury is in accord with the position taken by the Restatement which provides: ‘Recovery for tort . . . will not be permitted in any state if the defendant is declared immune from such liability by the workmen’s compensation act (a) of any state under which the plaintiff has obtained an award for the injury, or (b) of a state under which the plaintiff is entitled to obtain an award for the injury, provided that this state is the state (1) where the injury occurred, or (2) where the employment is principally located . . . .’ Restatement 2d, Conflict of Laws, § 403 (b) (Tent Draft No. 9, 1964). The approach taken is justified on the ground that ‘to deny a person the immunity granted him by a workmen’s compensation act of a given state would frustrate the efforts of that state to restrict the cost of industrial accidents and to afford a fair basis for predicting what those costs will be.’ Id. at comment b. Moreover, it is clear that difficulties in funding such a program are presented when the exposure to unlimited common law liability remains possible. Thus, it is thought unfair to deny a person who provides an assured recovery absent fault the quid pro quo of protection against common law tort liability. See ibid.”

Bartlett asserts that under normal conflict of law standards, Ohio law should determine whether Bartlett can be required to indemnify Thor for any damages it must pay to Kabak because most of the “contacts” employed in conflict of law cases were in Ohio.

1. The accident occurred in Ohio.
2. Kabak resided in Ohio at the time of the accident.
3. Kabak was employed in Ohio at the time of the accident.
4. Bartlett’s place of business where the accident occurred was in Ohio.
5. The equipment manufactured by Thor was in Ohio at the time of the accident.
6. Kabak received compensation under the Ohio Workmen’s Compensation Act.
7. Thor, in placing its equipment into the stream of commerce, knew or should have known that its equipment would or could be used in Ohio.
8. If Bartlett negligently failed to inspect or to repair the equipment properly, as the third-party complaint alleges, its negligent acts of omission occurred in Ohio.

With due consideration to the contentions and authorities of both sides, we believe two recent Illinois decisions supply the guidelines to be used here. Graham v. General U. S. Grant Post No. 2665, 97 Ill App2d 139, 239 NE2d 856 (opinion filed September 19, 1968), and Marchlik v. Coronet Ins. Co., 40 Ill2d 327, 239 NE2d 799 (opinion filed June 21, 1968, and rehearing denied September 24,1968).

In the Graham case, one of the issues required a determination of the extraterritorial effect of the Illinois Dram Shop Act. In an extended review of the question of the extraterritorial effect, Mr. Justice Davis said (p 149):

“If we give extraterritorial effect to the Act, the result creates a conflict with the traditional choice of law rule, found in the original Restatement of Conflict of Laws (§§ 377 and 378), and followed by the Illinois Courts .... Such rule has been lex loci delicti—that the substantive rights and liabilities arising out of a tortious occurrence are determined by the law of the place of the tort. The rationale of the rule is that its mechanical simplicity, with the assumed predictability of results as a corollary, is of first importance.”

After reviewing the policy factors affecting choice-of-law rules and choice-influencing considerations, Mr. Justice Davis further said (p 155):

“We adopt this concept of the effect of abandoning the mechanical rule of thumb application of the lex loci delicti rule.
“Our fast changing and moving era with its attendant new social and economic problems, requires a reevaluation of the choice of law rule in multistate tort situations, to the end that such rule will be made for the people and the problems of today. The nice tidy perfection of uniformity and simplicity should not prevail over elementary choice-influencing considerations, public policy, decency and justice.”

In Marchlik, the plaintiff was a resident of Wisconsin and was injured there. The action was commenced in Illinois under the Wisconsin “direct action” statutes, which authorized original suits against insurance companies provided the injuries were sustained in Wisconsin. Mr. Justice House delivered the opinion of the court and, on page 329, said:

“The issues as stated by the parties are whether the public policy of Illinois precludes direct action against an insurer for tort liability of the insured where the policy has a ‘no action’ clause and when the statutory law of the place where the tort occurs allows direct action and, if so, does the full-faith-and-credit clause of the constitution of the United States force a State to enforce a foreign statute.
“The preliminary approach to these issues is whether Wisconsin’s direct action statutes are procedural or substantive. If procedural or remedial, it is well settled that the lex fori, or law of the jurisdiction in which relief is sought, will govern. (15A CJS Conflict of Laws, sec 9; 16 Am Jur2d, Conflict of Laws, sec 76.) On the other hand, the lex loci delictus or law of the place of wrong generally governs where the substantive rights of the parties will be affected. But even this is an oversimplification for, if entertaining a foreign cause (such as this direct action suit against casualty insurers) is contrary to the public policy of the forum, its courts may bar enforcement of the foreign remedy, provided, of course, such a bar is not in contravention of the full-faith-and-credit clause of the Federal constitution.”

At p 332:

“We adopt the view that this direct action statute is substantive and, as such, is entitled to comity, provided there is no compelling public policy of this State to the contrary.
“Public policy has been defined as ‘Judicial decisions, legislation and constitutions as well as customs, morals and notions of justice which may prevail in a state.’ . . . An examination of Illinois law and customs will, we believe, demonstrate that entertaining direct action suits is contrary to a firmly-fixed public policy.”

At p333:

“Foreign substantive law is not, of course, unenforceable as being contrary to public policy just because it differs from our own law, but the differences here are such as to be against our public policy.”

From the pronouncements made in Graham and Marchlik, we conclude that in Illinois the lex loci delicti, or law of the place of the wrong, generally governs where the substantive rights of the parties will be affected, provided there is no compelling public policy of this state to the contrary.

As argued by Bartlett, most of the contacts in this case were in Ohio. While we agree that “mere counting of contacts” should not be determinative of the law to be applied, we believe the contacts here cannot be ignored. The fundamental and important contacts were all in Ohio, the “center of gravity,” and Bartlett, in complying with the Ohio Workmen’s Compensation Act, has the substantive right to look to Ohio law to determine whether it has any further obligation on account of the work-connected injury.

Although Ohio and Illinois differ on the right of indemnification in workmen’s compensation cases, we believe the application of the Ohio law here is not so repugnant to the public policy of Illinois as to require the courts of Illinois to refuse to exercise comity and to deny extraterritorial effect to the Ohio Workmen’s Compensation Act, which gave Bartlett substantive rights.

Therefore, for the reasons given, the order which dismissed Thor’s third-party complaint is affirmed.

Affirmed.

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