author: MR. JUSTICE SULLIVAN

text:
    Sarah Levin, Plaintiff-Appellee, v. 37th Street Drug & Liquors, Inc., a Corporation, Defendant-Appellant.
    Gen. No. 52,663.
    First District, Third Division.
    December 12, 1968.
    Rehearing denied January 10, 1969.

      Stradford, Lafontant, Fisher & Corrigan, of Chicago, for appellant.
    Solomon & Grossman, of Chicago, for appellee.
   MR. JUSTICE SULLIVAN

delivered the opinion of the court.

The defendant appeals from a judgment entered in favor of the plaintiff upon a promissory note in the amount of $5,618.35. Judgment by confession was originally obtained and the defendant petitioned to vacate the judgment. The judgment was opened and leave granted to defend, and the cause came to trial without a jury. The trial court reinstated the judgment and the defendant prosecutes this appeal.

The issues presented at trial were in substance whether the parties who signed the note for the corporation as officers of the defendant-corporation were in fact officers so as to bind the defendant and whether the note had been issued for valid consideration. At the inception of the trial, the court ruled that the defendant had the burden of proof and, as a result, the defendant went forward with his case. The defendant called one Albert Levin under section 60 as an adverse witness and called one Heyward Bland as its own witness.

On December 15, 1964, Albert Levin and Heyward Bland entered into an agreement whereby Levin agreed to purchase all of the shares of stock of the defendant for $12,000, and Levin further agreed to pay $18,000 for all of the inventory located upon the premises of the defendant. The stock was assigned to Levin but was held by Bland as security for the payment of the sums described above. As of June 1, 1965, Mr. Levin had paid $18,000 and owed the remainder under the agreement.

The defendant was beset with financial difficulties and Bland advanced additional funds to the defendant. Mr. Levin testified that in order to secure funds to repay Bland, the plaintiff, Sarah Levin, advanced $5,000 to the corporation. Albert Levin stated that this advancement took the form of a check issued by the plaintiff’s attorney to the order of Heyward Bland. The adverse witness also testified that on June 1, 1965, a stockholders’ meeting was held at which he and Marvin Levin and Katherleen Pittman were elected directors; and on the same day a directors’ meeting was held at which Marvin Levin was elected President, Albert Levin was elected Vice President and Assistant Secretary, and Katherleen Pittman was elected Secretary. According to Albert Levin, on June 15, 1965, a note was executed by him as Assistant Secretary and by Marvin Levin as President and was made payable to the plaintiff in consideration of the plaintiff’s $5,000 advancement to the corporation.

Heyward Bland admitted receiving the $5,000 check issued by Mr. Solomon, the plaintiff’s attorney, for the money he had loaned to Albert Levin. Bland denied knowing whether the funds which he had loaned to Levin were used for. corporate purposes or for Levin’s personal use.

The defendant placed into evidence written records of the defendant dated September 20, 1965, which recited that on that date the prior officers and directors resigned and Marvin and Albert Levin and Katherleen Pittman were elected directors and officers of the defendant. Albert Levin’s testimony contained a denial that such a meeting was held on that date, and he stated that these resignations and elections took place on June 1, 1965.

The defendant contends that the trial court erred in placing the burden of proof on the defendant and since plaintiff offered no proof at the close of the defendant’s case other than the stock purchase agreement of December 15, 1964, judgment should have been entered in favor of the defendant. It has been held that once the defendant is allowed to plead upon the opening of the judgment by confession, the burden is upon the plaintiff to prove his case as if no judgment had been confessed on the cognovit. (Morris v. Taylor, 199 Ill App 588; Curtin v. Kinney, 304 Ill App 257, 26 NE 2d 159.) However, in the absence of prejudice resulting from the defendant’s presenting his evidence first, this procedural error is of no importance. (Morris v. Taylor, supra.) We fail to perceive how the defendant in the instant case was substantially prejudiced by initially going forward with his defenses to the instrument. Even though the plaintiff did not formally enter the note into evidence, it was referred to by the defendant in his examination and was also referred to in the pleadings. The defendant was not attacking the formalities of the execution of the note. The defendant’s only defenses were failure of consideration and lack of authority in those who executed the note. Once the judgment has been opened and the defendant allowed to plead, the burden of making out a defense is upon the defendant. Woulfe v. Douglas Storage Van & Express Co., 232 Ill App 230.

There was testimony by Albert Levin that the plaintiff had advanced funds to the defendant which formed the consideration for the note. The same witness testified that at the time the note was executed he and his brother, Marvin Levin, were in fact officers of the defendant. In view of the evidence before this court, it would be futile to reverse and remand due to the procedural error and thereby not reach the merits of the case.

There was testimony that the plaintiff advanced funds to the corporation when it was in financial distress. A promissory note issued to keep a corporation going or to strengthen its credit or to preserve its solvency rests on good consideration. Central Republic Trust Co. v. Evans, 378 Ill 58, 37 NE2d 745.

A promissory note is presumed to have been issued for valid and sufficient consideration, and evidence offered to rebut this presumption must be of a very clear and cogent nature. (Gilberson v. Moore, 35 Ill App2d 175, 182 NE2d 767; Steiner v. Rig-A-Jig Toy Co., 10 Ill App2d 410, 135 NE2d 166.) The defendant argues that there was no evidence to show that the $5,000 check issued to Bland was issued against funds which had belonged to the plaintiff. There was testimony that the plaintiff had the check issued in this manner because Bland refused to take a check drawn by the defendant itself. In any event, the defendant had the burden of proving the defense of want of consideration, and this burden was not met in the case at bar.

The defendant also contends that the written records of the corporation offer conclusive proof that the signers of the note were not officers at the time the note was executed. The adverse witness testified that there had been a valid election of the Levins as officers and directors prior to the execution of the note.

In view of the evidence adduced at trial, we need not decide who were in fact the duly elected and de jure officers of the defendant when the note was signed. Corporate officers exercising the functions of their offices under color and claim of authority, even though unlawfully elected, are nevertheless de facto officers. So far as third parties are concerned their acts are as binding upon the corporation as if they were officers de jure. (Jack v. Oakbrook Terrace Community Park Dist., 31 Ill2d 390, 202 NE2d 7.) It appears from the evidence that subsequent to December 15, 1965, the old officers had no active duties in the management of the defendant. Mr. Bland admitted, under cross-examination, that he was President of the 37th and Indiana Building Corporation which was the lessor of the defendant’s premises, and that he had entered into a lease which was signed by Albert Levin on behalf of the defendant corporation. This transaction coupled with the noticeable lack of any activity by the old officers after the sale of the stock to Albert Levin indicates that the officers elected, however informally, on June 1, 1965, operated under color and claim of authority following that date with the authority to bind the defendant on instruments such as the note in the case at bar.

For the foregoing reasons, we conclude that the trial court’s reinstatement of the original judgment should be affirmed.

Affirmed.

DEMPSEY, P. J. and SCHWARTZ, J., concur.


source: Caselaw Access Project

author: MR. JUSTICE SEIDENFELD

license: Public Domain

text:
    Mary Rendl, Plaintiff-Appellant, Counterdefendant, v. Roy E. Anderson, Individually, and d/b/a Home Owners Realty, and Charles E. Neal, Defendants-Appellees, Counterplaintiffs.
    Gen. No. 68-13.
    Second Judicial District.
    December 13, 1968.

      Jurco, Damisch & Sinson, of Chicago, and Geister, Schnell, Richards & Brown, of Elgin, for appellant.
    No brief filed in behalf of appellee.
   MR. JUSTICE SEIDENFELD

delivered the opinion of the court.

The plaintiff, the owner of a certain farm, brought suit against the defendants, both real estate brokers, for money damages, based upon slander of title; and for a judgment declaring that an option to purchase given to the real estate broker, which contained an exclusive brokerage listing executed between the plaintiff and one defendant, be declared illegal and void and set aside as a cloud upon her title. The defendants, the real estate brokers, brought suit for specific performance, demanding that the plaintiff-owner perform the option in the brokerage listing agreement and deliver to the defendants a deed to said property pursuant to the brokerage listing agreement. The cases were consolidated for trial, jury was waived, and the court entered two judgment orders.

The court entered judgment for the defendants in the plaintiff’s case against the real estate brokers. In the suit by the real estate brokers against the plaintiff-owner, the court ordered the plaintiff to comply with the terms of the option contained in the brokerage listing contract, and to execute a deed, among other things, to the defendants. It is from both judgment orders that the plaintiff appeals.

The plaintiff contends that the option in the brokerage listing was fraudulent and unenforceable because Anderson did not make full disclosure of all relevant facts to the plaintiff and that the plaintiff did not receive competent independent advice prior to execution of the contract; that the option was unenforceable because there was no valid consideration; and that the terms of the option were so vague and indefinite as to preclude specific performance of the contract. She further contends that the court abused its discretion in refusing to admit evidence of sales of similar parcels of real estate. With these contentions, we cannot agree.

The plaintiff, Mary Rendí, was the owner of certain farm property consisting of approximately ninety-nine acres. At the time of the transaction and the execution of the contract, she was an 81-year-old widow having attended school through the fifth grade. Her son, Fred Zellhofer, after conferring with his mother and learning of her intentions to sell the farm, went to Anderson in September and a conference ensued pertaining to the sale of his mother’s farm. Anderson inquired as to the location of the property, and stated he would look at the property. This conversation lasted approximately fifteen minutes and during the conversation Anderson stated that he had sold another farm nearby at a price of $400 per acre.

Fred Zellhofer had attended school through the fifth or sixth grade and he had previously owned and sold a farm of his own. He stated that the reason his mother wished to sell the farm was that she had a bad tenant, that the farm was in weeds and the buildings were in a state of disrepair.

The defendant, Anderson, was a licensed real estate broker in the State of Illinois and had been a real estate salesman for one year and previously had been in the farming business.

Approximately September 23rd or 24th, Anderson came to Mr. Zellhofer’s home where Mrs. Rendí was present, and at that time presented a real estate broker’s listing showing the property for sale at a price of $400. The contract stated:

“In consideration of the sum of One Dollar, receipt acknowledged, I hereby give you exclusive sale of my property, described as 99-acre farm, commonly known as the Mary Rendí farm, located on Freeman and Powers Roads, Sections 10 and 15, T 42 N, Range 7-E., Rutland Township, Kane County, State of Illinois. Rights reserved to include legal description. Possession to be obtained on or before March 1, 1966. For a period of (see reverse side) 60 days from this date, at a price of $400.00 per acre subject to an existing incumbrance of $. . . bearing interest at .. . per cent, due ... or any less sum which I shall agree to accept, and to pay you 6% commission as established by the Chicago Real Estate Board, on such sale price, you have the privilege of purchasing this property during said period, if you so desire ....
“In consideration of having given you this exclusive contract, it is understood that you are to advertise and show the property without any expense to me.
s/ Mary Rendí”

and was addressed to “Home Owners Realty, Roy E. Anderson, Broker, Big Timber Road, Elgin, Illinois.”

On this occasion when Anderson, Mr. Zellhofer, Mrs. Zellhofer and the plaintiff were present, Mr. Zellhofer specifically inquired from Anderson whether the farm was only worth $400 per acre to which Anderson replied, that was all that it was worth. Anderson explained the option (although it is disputed as to whether or not the plaintiff read the option before signing it). At the instruction of her son, the plaintiff signed the agreement. The plaintiff, her son and her son’s wife all stated they did not care who bought the farm, that it was for sale and that they wanted to sell it. This entire conference lasted approximately fifteen minutes.

Approximately six or seven days later, on or about September 20th, 1965, the plaintiff’s son received an offer to buy real estate addressed to the plaintiff and signed by the defendant Anderson, and the defendant, Neal. Neal, was a friend of Anderson’s and was in the real estate brokerage and land and real estate investment business.

The offer to buy specified that an escrow was to be established at the First National Bank of Elgin; that the plaintiff was to convey her property in trust by stamped warranty deed; that the purchasers were obligated to make an earnest money deposit of 10% of the purchase price less real estate brokerage commissions; that the earnest money could be paid by check and that the plaintiff was obligated to convey merchantable title with the right of the purchasers, the defendants, to rescind the contract on default of the plaintiff, among other provisions not here material to this appeal. The offer to purchase was accompanied by two checks, drawn respectively by Anderson and Neal, dated September 30th, 1965, made payable to the First National Bank of Elgin in the amount of $1,980 each.

An attorney for the plaintiff, on or about October 1st and 2nd, discussed with the defendants, the mechanics of setting up an escrow. The attorney for the plaintiff did not mention the disaffirmance of the option agreement. At the time the checks were tendered to the plaintiff, the defendant, Anderson, testified he was going to try to subdivide it, and that the plaintiff thought it was a good idea.

On or about October 3rd, 1965, the plaintiff’s son, Mr. Zellhofer, saw a want ad in the Chicago Sunday Tribune under the heading “Farms for Sale” listing a 99-acre farm for a price of $95,000. Shortly thereafter, a final conversation occurred between the plaintiff’s son, Mr. Zellhofer, and the defendant, Anderson, in which Anderson demanded to know the reason for the delay in performance of the option to purchase and why the plaintiff was not going through with the sale. It is to be noted that the 99-acre farm advertised in the Chicago Tribune was not an advertisement as to the farm of the plaintiff but of another farm.

On October 18th, the attorney for the plaintiff wrote to Anderson enclosing the two checks and notifying him that the plaintiff did not recognize Anderson’s claim that he was entitled to purchase the property.

Anderson testified on the stand that he advised plaintiff’s son that the adjoining farm sold for $400, but that he and Neal bought the property to make money. He testified he did not tell the plaintiff that if you broke the property into residential parcels, it would bring more money. He further testified that they bought it to speculate. He also testified that, after first showing the property to a party who did not make an offer, he then showed the property to the codefendant, Neal, about September 30th, and they thought that they might be able to make a profit by selling it off in three pieces or chopping it up.

In Burrows v. Palmer, 10 Ill2d 344, 140 NE2d 668 (1956), the court enunciated the standard required to sustain a transaction when a fiduciary relationship exists at the time of the transaction, at page 353:

“It is well established by the decisions of this court that where a fiduciary relationship exists at the time of a transaction whereby the dominant party appears to gain, the transaction is deemed presumptively fraudulent but such presumption is not conclusive and may be rebutted by clear and convincing proof that the dominant party has exercised good faith and has not betrayed the confidence reposed in him. The burden rests upon the dominant party to produce such evidence and if the burden is not discharged the transaction will be set aside in equity. In general, to overcome this presumption of fraud and undue influence the dominant party must show: (1) full disclosure of all relevant information to the subservient party; (2) adequate consideration; (3) competent and independent advice to the principal before completing the transaction. . . .” (Emphasis supplied.)
“In the instant case the burden shifted to the defendant, ... , to establish by clear and convincing evidence that the transaction was free of fraud and undue influence on his part since the fiduciary relationship between him and his mother as of the date of conveyance was established.”

We do not agree with the contention of the plaintiff that the option agreement was presumptively fraudulent when the facts are applied to the above enunciated rule. First, as to disclosure of all relevant facts prior to the transaction, we note that at the time the transaction was entered into between the plaintiff and the defendant, Anderson, there is no evidence that the defendants were planning to subdivide the property and speculate with it. In fact, the evidence is to the contrary. Only after showing the property to a prospective buyer who never made an offer, did Anderson then contact the codefendant, Neal, to discuss whether or not Neal might be interested in the property. It is reasonable to infer that at this time the defendants first discussed the possibilities of subdividing the farm whereupon the parts would then equal a sum greater than the whole.

The amount plaintiff was to receive for the farm was adequate under the testimony as to value received in the case. One of the experts in real estate appraisal called by the plaintiff testified that he was a real estate appraiser and consultant by profession and that, in his opinion, based upon his education and experience, the fair, reasonable market value of the farm at the time of the execution of this transaction was $600 per acre. This appraiser admitted that this was his first appraisal in Kane County. The second expert real estate appraiser called by the plaintiff testified that he was currently engaged in the real estate brokerage business and had a lifetime acquaintanceship with the land in the township where the plaintiff’s land was located. He testified that a new toll road entrance would soon be put in which would increase real estate values and that during the previous four or five years the population growth and toll roads had increased real estate values in the township by 25 % to 33%. He testified that the plaintiff’s farm was increased in value by the nature and character of the homes which abutted and by a beautifully wooded area immediately to the east. However, he further testified that he himself had been attempting to sell the plaintiff’s farm for at least two years prior to the subject of this occurrence. He had shown it to possibly a dozen or fifteen people and his asking price was $550 per acre. He testified that wooded areas are an attractive sales feature for residential property and that the plaintiff’s farm had none. The neighboring farm which had been sold for $400 per acre and which the plaintiff discussed with Anderson, prior to the execution of this transaction, contained wooded acreage. In this second expert appraiser’s opinion, the fair market value of the plaintiff’s property at the time of the execution of the contract with the broker’s option ranged between $625 and $650 an acre.

The defendants produced an expert witness as to the value of the property who testified that sometime prior to this occurrence he thought that he had advised the plaintiff’s son, Mr. Zellhofer, that the farm could not be sold for more than $350 per acre to which Mr. Zellhofer replied that he would be satisfied if he could obtain $400 per acre. (The plaintiff points out that this could not have occurred and denies that conversation.) Thereafter, the defendants’ expert testified that in his opinion the farm was worth $400 an acre and no more, basing his opinion on the condition of the land, the hills on the property, the condition of the buildings, the small pieces of land which comprised the total farm and on the fact that it would be difficult to sell the property for purposes of a subdivision due to lack of trees.

In an action tried to the court without a jury, the determination of the credibility of witnesses and the weight to be given to the evidence is for the trial court. Meyer v. Buckman, 7 Ill App2d 385, 406, 129 NE2d 603 (1955). In the case at bar, the trial court heard and observed the testimony pertaining to the value of the plaintiff’s farm at the time of the occurrence and apparently felt that $400 per acre was fair consideration. We shall not disturb that determination.

We turn to the third point in a fiduciary relationship: that the dominant party must show competent and independent advice to the principal before completing the transaction. We hold that the plaintiff had competent independent advice by conferring with her son, Mr. Zellhofer, who actually brought the plaintiff and the defendant, Anderson, together; and the plaintiff had, of course, the benefit of advice from her former real estate broker who testified that he had been attempting to sell her farm for at least two years prior to the occurrence. The rule of competent and independent advice does not preclude a principal from entering into a contract with the fiduciary under these facts.

The next contention of the plaintiff is that the contract containing the option was unenforceable because it was not supported by valid consideration. With this we cannot agree. It is noted that the option introduced into evidence shows consideration in the sum of One Dollar ($1.00), “receipt acknowledged,” and further consideration upon the part of the defendant to show the property, and to advertise without expense to the owner. Option agreements to convey without any corresponding obligation to purchase will be enforced if made upon sufficient and valuable consideration. Hunter v. Vonbronk, 333 Ill 321, 324, 164 NE 671 (1929). In Adams v. Peabody Coal Co., 230 Ill 469, 473, 82 NE 645 (1907), it was held that the express consideration of “one dollar” is adequate consideration. Therefore, we hold that the option was enforceable because it was supported by valid consideration. As to the plaintiff’s contention that the defendant never complied with the terms of the option agreement, we only point to what the defendants did to exercise the option and to the terms of the option, and can come to no other conclusion but that the defendants complied.

The authority relied upon by the plaintiff in support of her contention that there was no valid consideration, Moehling v. W. E. O’Neil Const. Co., 20 Ill2d 255, 265, 170 NE2d 100 (1960), is clearly distinguishable upon the facts. Unlike that case, the option agreement here was not a separate arrangement but a part of the exclusive sales contract. The contention that the defendant never complied with the terms of the option agreement or that the option agreement was so vague and indefinite that it was error for the trial court to grant specific performance is also without merit. See Welsh v. Jakstas, 401 Ill 288, 297, 82 NE2d 58 (1948) and Morris v. Goldthorp, 390 Ill 186, 193, 60 NE2d 857 (1945).

We consider the last contention of the plaintiff that the trial court committed prejudicial error in refusing to admit evidence of sales of similar parcels of real estate offered by plaintiff for the purpose of showing the fair and reasonable market value of plaintiff’s property.

The law in Illinois is well established that evidence of the sale of similar parcels of property is admissible in order to show value of real estate. In City of Chicago v. Blanton, 15 Ill2d 198, 154 NE2d 242 (1958), the court held on page 202:

“To aid in establishing such value, this court has consistently held that evidence of voluntary sales of similar parcels occurring in the same vicinity at or about the time of filing are admissible unless such proof causes a confusion of issues which offsets the benefits to be derived therefrom.”

The trial court in its discretion admitted evidence of sales of similar or comparative parcels, three in number, in the same vicinity in behalf of the plaintiff. Plaintiff was permitted to introduce evidence of an asking price of a parcel of land in the same vicinity at the same time which is palpable error when there had been actual sales. City of Chicago v. Blanton, supra, at page 202.

However, this error was committed on behalf of the plaintiff and therefore only benefits the plaintiff. The court excluded testimony of a comparative sale on the basis that the expert did not have personal knowledge but was testifying as to the sale price based upon hearsay, and therefore, this evidence of a comparative sale was properly excluded. The third sale which the plaintiff claims the court prejudicially excluded was a sale which took place after the lawsuit was filed. It is undisputed that we are concerned here with the fair market value of the plaintiff’s property at the time of the execution of the option agreement.

The court in City of Chicago v. Blanton, supra, in discussing the discretion of the' court said on page 202:

“No general rule can be laid down regarding the degree of similarity which must exist between property sold and that condemned in order to make evidence of such sale proper. Since no two pieces of real estate are exactly alike and since economic influences are constantly changing, the admission of such proof rests largely in the discretion of the trial court, and its decision will be reversed only where such discretion has been clearly abused.”

We hold that the trial court properly exercised its discretion and that the evidence of sale of one parcel which the court erroneously admitted, was an error which benefited the plaintiff and of which she cannot complain here.

It is our opinion that the judgments of the lower court should be affirmed.

Judgments affirmed.

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


author: JUSTICE SEIDEN-FELD.

text:
    People of the State of Illinois, Plaintiff-Appellee, v. L. G. Young, Defendant-Appellant.
    Gen. No. 68-18.
    Second Judicial District.
    December 13, 1968.
    Lapping, Niederman, and Facktor, and Sam Adam, of Chicago, for appellant;
    John L. Moore, State’s Attorney, of Oregon, for appellee.
   Opinion by

JUSTICE SEIDEN-FELD.

Not to be published in full.


text:
    Joyce Enlow, Administrator of the Estate of Robert Enlow, Deceased, and LaVernee Cruse, Administrator of the Estate of Martin A. Cruse, Deceased, Joyce Enlow and LaVerne Cruse, Plaintiffs-Appellants, v. Illinois Central Railroad Company, an Illinois Corporation, Marie J. Mullins, Executor of the Estate of Everett J. Mullins, Deceased, and Community Unit School District 272 of Amboy, Illinois, Defendants-Appellees.
    Gen. No. 68-62.
    Second Judicial District.
    December 13, 1968.
    Rehearing denied and opinion modified January 20,1969.

      Perona and Perona, of Spring Valley, for appellants.
    Gunner and Keller, George F. Nichols, and Dixon, Devine, Ray & Morin, of Dixon, for appellees.
   Modified Opinion on Denial of Petition of Community Unit School District for Rehearing.

MR. JUSTICE SEIDENFELD

delivered the opinion of the court.

Plaintiffs appeal from the entry of judgments on not guilty verdicts of the jury and from the denial of the post-trial motion. The case involves claims for wrongful death, and for funeral expenses under the Family Expense Act.

The case was tried under an amended complaint in which the defendants Marie J. Mullins, Executor of the Estate of Everett J. Mullins, Deceased, and the Community Unit School District 272, were charged only with willful and wanton misconduct. In separate Counts X and XI, plaintiffs sought recovery against the defendant School District only, charging it “was negligent in requesting Robert Enlow and Martin A. Cruse to perform services for the School District.” The case against the Railroad proceeded under allegations of ordinary negligence. However, the original complaint in Counts III and IV had charged the Mullins and School defendants with ordinary negligence, but these Counts were dismissed on motion of the defendants.

The case involves a crossing accident in which there was a collision between the train of the defendant Railroad and a school truck being driven by defendant Everett J. Mullins, a janitor employed by the defendant School District, on September 20th, 1966. About 3:25 p. m. on that day, the janitor had asked the school principal for permission to use some of the eighth grade boys to load a drag or grader on the school truck. The principal testified that nothing was said about the boys doing anything other than load the drag on the truck; but he further testified that the janitor, Everett J. Mullins, was going to take the drag from the school playground to the road commissioner who lived across the tracks from the grade school in the Village of Eldena. The principal approached the eighth grade boys and told them that Mullins needed some help and asked if anyone wanted to help. Five of the boys raised their hands, including Martin Cruse and Michael Enlow who were then fourteen years old. After loading the “drag,” the boys were riding in the back of Mullins’ truck from the time the truck left the school grounds until the time of the accident.

Between the village and the school there were two gravel roads, one running parallel to the railroad tracks on the east side and another road which crosses the tracks. The railroad tracks run in a northwesterly-southeasterly direction. The only warning signals located at the crossing were wooden crossbuck signs. At the crossing, the gravel road upon which the Mullins’ truck travelled turns west. The railroad line is approximately 2.3 feet above the surface of the roadway. The gravel road curves as it goes over the tracks at nearly a 70-degree angle. From the crossing you could see a half mile south along the railroad tracks. There was no obstruction to seeing a train coming from the south and the visibility was good from the gravel road and then west. Traffic at this crossing, as shown by a traffic count, was relatively light; and there was another crossing to the north which people could use going to and from schoool.

The truck approached the railroad crossing at a speed of approximately 10 miles per hour as the train approached the crossing from the south at approximately 45 to 50 miles per hour. A witness testified that as the truck turned toward the crossing she saw the train 165 to 200 feet south of the crossing. She further testified that the truck never changed speed to the point of collision. The engineer on the train testified that he saw the truck approaching the crossing when the train was one-quarter of a mile away from it.

The driver and all of the boys in the truck were killed as a result of the accident.

There was conflicting testimony from witnesses and from the train crew as to whether the whistle blew on the train as a warning. The train locomotive was running backwards. The brakes on the locomotive were applied when the locomotive was within a few feet of the crossing by the engineer at the direction of another crew member. The train stopped about 900 feet north of the crossing after the collision.

When the boys got in the back of the truck, three were sitting on the left side facing northerly and two were sitting on the right side facing southerly, but there was no testimony as to where Eobert Enlow or Martin Cruse were sitting. One of the trainmen testified that none of the boys turned their heads towards the train until the split second before the accident, and as the truck started to cross the tracks the boys stood up in back and looked at the train just as it hit them. Another witness, Lola Fields, was looking at the boys as the truck approached the tracks and saw no movement by any of them to the very point of collision.

There was testimony that Mullins never turned his head to look either way and at all times was looking straight ahead. There was further testimony that “it looked as if Mullins was going to stop at any moment.”

We will consider first the claim of plaintiffs that it was error to dismiss Counts III and IV of the original complaint charging ordinary negligence. This involves only the case against Mullins and the School District. Both Counts contain similar allegations, but Count III was for the damages as the result of the death and Count IV was for the funeral expenses. The portion of the pleading attacked by a motion to strike contained the following allegations :

“8. That it was the duty of the defendant School District and Everett J. Mullins to use ordinary care so that Robert Enlow and Martin A. Cruse would not be injured.”
“11. That the said Robert Enlow and Martin A. Cruse were not guests in the vehicle of Everett J. Mullins, but instead were passengers performing a service solely for the benefit of Everett J. Mullins and Community Unit School District 272 of Amboy, Illinois, to wit: helping said defendant School District and Everett J. Mullins, return a grader to its owner at the sole request of the said defendants, School District and Everett J. Mullins.”

The court in sustaining the motion to dismiss stated in a letter:

“The Court further sustains the motion to dismiss as there is no allegation or charge of willful or wanton misconduct against the defendant.
“The petition alleges in the complaint the conclusion that Martin A. Cruse and Robert Enlow were not guests in the vehicle of Everett J. Mullins, but instead were passengers. It has been repeatedly held by our courts and I have read all the cases submitted by counsel; that a guest is one who the operator of a motor vehicle invites to ride with him without financial or other return and where the relationship does not provide for tangible benefit for the driver.
“According to the allegation in the complaint it appears to the Court that the boys were, at most, engaged in a joint enterprise with the driver of the vehicle and there must be an allegation of willful and wanton misconduct.
“I assume the plaintiff will ask leave to file an amended complaint which will be granted and fifteen days allowed in which to file the amendment.”

The Mullins’ estate and the School District argue that the court properly struck the allegations as conclusions of the pleader and that the plaintiffs have waived the point by filing their amended counts based on allegations of willful and wanton misconduct, rather than pleading ordinary negligence and willful and wanton misconduct in the alternative.

These defendants take the position that the trial court’s ruling was correct under the case of Darling v. Charleston Memorial Hospital, 50 Ill App2d 253, 310, 200 NE2d 149 (1964). While the citation confirms the rule that averments in a complaint as to the duty of a defendant are mere conclusions, and it is not sufficient to allege generally the duty of the defendant but that the plaintiff must state alleged facts from which the law will raise the duty, the opinion goes on to state:

“An allegation of duty, as such, is surplusage—if the facts stated raise the duty the allegation is unnecessary—if they do not it is unavailing . . . .”

We believe that the allegations of fact contained in paragraph 11 of Count III and realleged as paragraph 11 in Count IV are sufficient to raise the duty of ordinary negligence as an issue in the case, and to state a factual situation under which the Illinois Guest Statute (Ill Rev Stats 1967, c 95%, § 9-201) is inapplicable. The part of that Statute material here is:

“No person riding in or upon a motor vehicle or motorcycle as a guest without payment for such ride, or while engaged in a joint enterprise with the owner or driver of such motor vehicle or motorcycle . . . shall have a cause of action for damages against the driver or operator of such motor vehicle. . . .”

In addition to stating that the plaintiffs’ intestates were passengers and not guests, the original pleading further stated the facts that the passengers were performing a service solely for the benefit of Mullins and the School District in helping said defendant School District and Mullins to return a grader to its owner at the sole request of the defendants. We believe that this sufficiently alleges that the boys were not either guests of Mullins or engaged in a joint enterprise with him. The basic rule of law is that if the transportation confers only a benefit incident to hospitality, companionship or the like, a motor vehicle passenger is a “guest” within the meaning of the Guest Statute; but if the transportation is primarily for some objective or purpose of the operator, the passenger is not a “guest” within the meaning of the Statute. Sinclair v. Thomas, 90 Ill App2d 114, 119, 120, 234 NE2d 368 (1967); Gass v. Carducci, 37 Ill App2d 181, 185-187, 185 NE2d 285 (1962). We further believe that the original complaint sufficiently alleged that the boys were not engaged in a joint enterprise. To define a joint enterprise there must be evidence of a common business purpose in which the occupants are mutually interested in the trip itself as part of such purpose and where each is responsible for the manner in which the ear is operated. Grubb v. Illinois Terminal Co., 366 Ill 330, 339, 8 NE2d 934 (1937); Smith v. Bishop, 32 Ill2d 380, 385, 205 NE2d 461 (1965). Here the original complaint was sufficient to show that there was no mutual interest in the purpose of the automobile ride, and that the purpose was not a business purpose to the boys. It was sufficient to advise the opposing party of the case which the plaintiffs would attempt to prove and, of course have the burden of proving. Kita v. YMCA of Metropolitan Chicago, 47 Ill App2d 409, 425,198 NE2d 174 (1964).

Nor do we believe, under the circumstances, that the plaintiffs have waived the error in failing to plead over in the alternative. It seems clear in the context of the trial judge’s statements that he would not entertain a complaint that was not based on willful and wanton misconduct as far as the Mullins and School Board defendants were concerned. It was logical for the plaintiffs to assume that the trial judge was ruling as to the merits of the issue and was attempting to narrow the points he would consider under the amended complaint. While it is not an identical situation, the courts have denied the necessity of filing a post-trial motion in a case heard by the court without a jury on the ground that it would seem illogical to require a party to address the same arguments to the same judge on the identical questions before proceeding to review. Larson v. Harris, 77 Ill App 2d 430, 434, 222 NE2d 566 (1966).

Inasmuch as we have determined that it was error for the court to refuse to permit the case to go forward under the issues of ordinary negligence against the defendants, Mullins and the School District, we will not consider the other claims of error made by the plaintiffs to the effect that even under the willful and wanton issue it was error not to direct a verdict or to enter judgment notwithstanding the verdict.

We view the appeal of the not guilty verdict in favor of the defendant Railroad in an entirely different posture, however. We have been unable to find any evidence in the record which would support a finding that the Railroad was negligent. Plaintiffs claim error in the refusal of the court to allow them to amend their complaint against the Railroad after the proofs, but we have found no such error within the rule that amendments after the close of a party’s case are discretionary and the court’s discretion will not be upset unless there is an abuse of discretion and the materiality of the amendments to the evidence already introduced is apparent. Such circumstance is not apparent in this case. McCartney v. McCartney, 8 Ill2d 494, 497, 134 NE2d 789 (1956). The requested amendment charged that the trainmen were incompetent and inexperienced, that operating the locomotive backwards was negligence, and that it was negligent to schedule the train to cross at a time when school was dismissed. There is no evidence in the record to support any of these charges and the trial court properly exercised its discretion in refusing the amendment after proofs.

Plaintiffs have also urged error in the giving and refusing of certain instructions in the case against the Railroad. The original abstract of the plaintiffs included the instructions given and refused, but did not include the conference on instructions. After the appellee’s brief for the Railroad had been filed, the plaintiffs sought to file an additional abstract containing the conference on instructions and the Railroad filed a motion to strike the additional abstract, which motion we have taken with the case. In support of its motion, the Railroad refers to Supreme Court Rule 342(e) (Ill Rev Stats 1967, c 110A, § 342) as providing only for the filing of an original abstract by the appellee.

It is clear that an instruction cannot be urged as error unless a specific objection has been raised to it in the conference on instructions, and that except for particularly specified objections the party is considered as consenting by implication to the instructions and cannot later complain about them. Allen v. Howard Bowl, Inc., 61 Ill App2d 314, 317, 210 NE2d 342 (1965). Therefore, matters required for a full understanding of the question presented were not abstracted in accordance with the rule. Beatrice Foods Co. v. Gallagher, 47 Ill App2d 9, 16, 197 NE2d 274 (1964). Appellants urge that subparagraph (g) of the rule, referring to our right to consider the entire record, should be applied. We grant the motion to strike the additional abstract of appellants, however, because we believe it unfair to ask leave to file the additional abstract after the Railroad’s brief was already filed and properly did not argue the merits of instructions but urged the procedural error. We have, however, considered the instructions abstracted as a series and are of the opinion that they fairly and fully informed the jury of the relevant principles of law involved. Irwin v. Omar Bakeries, Inc., 48 Ill App2d 297, 304, 198 NE2d 700 (1964).

We also find that the separate Counts X and XI, charging the District with negligence in requesting that its students perform services for it, were properly submitted to the jury. We will not disturb the finding below in this respect, as we find that the jury’s verdict on these separate Counts was amply supported by the evidence and is affirmed.

The judgment in the case of the plaintiffs against the defendants Everett J. Mullins and Community Unit School District 272 of Amboy, Illinois, is reversed (except as to Counts X and XI against the School District) and the cause remanded for a new trial consistent with this opinion. The judgment in the case of the plaintiffs against the Illinois Central Railroad Company, an Illinois Corporation, is affirmed.

Reversed and remanded in part, affirmed in part.

ABRAHAMSON and DAVIS, JJ., concur.


author: SCHEINEMAN, J. ALLOY, P. J.,

text:
    Charles Ruppman Advertising, Inc. (Formerly Thomson Advertising, Inc.), a Delaware Corporation, Plaintiff-Appellee, v. The Manhattan Life Insurance Company, a New York Corporation, Defendant-Appellant.
    Gen. No. 68-27.
    Third Judicial District.
    December 16, 1968.

      Mayer, Friedlich, Spiess, Tierney, Brown & Platt, of Chicago, and Kavanagh, Scully, Sudow, White & Frederick, of Peoria, for appellant.
    Clendenin & Burkhard, of Monmouth, and Edwin V. Champion, of Peoria, for appellee.
   SCHEINEMAN, J.

The plaintiff, as successor to Thomson Advertising, Inc. brought suit on a life insurance policy issued by the defendant on the life of a Eobert Thomson, late president of the plaintiff, formerly named Thomson Advertising, Inc.

The Manhattan Life Ins. Company defended on the ground that the initial premium was not paid during the life of the insured, as the policy required. The trial court found for the plaintiff and entered judgment against the defendant for $25,000, from which this appeal is taken.

The judgment was based on the court’s finding that the Sam J. Stone Insurance Agency, which procured the policy for the plaintiff, had waived payment of the initial premium, and represented and agreed that the payment could be made later, and that the plaintiff relied thereon and refrained from making the payment promptly which it otherwise would have done. It is here contended for the defense that these findings are not supported by the evidence and this requires examination of it.

The policy was of the type called “key-man insurance” and was one of a number of similar policies the plaintiff obtained on the life of its president, some from other companies and some from this same defendant.

It contained a provision that it would not be effective unless the first premium is paid during the lifetime of the insured. This is usually a provision in life insurance policies since a company would not want to insure a life that did not exist, or give anyone reason to try to obtain insurance on a dead man. The policy also contained a statement that none of its conditions could be waived except in writing signed by one of several designated officers of the company.

Notwithstanding these provisions, the plaintiff asserts that the payment was waived orally in a conversation on Saturday, April 20, 1963, between Errett Zendt, one of plaintiff’s directors, and Thelma Pierson, office manager of the Stone Insurance Agency. It is undisputed that Mr. Thomson died that afternoon, and the premium had not been paid. In faet, plaintiff mailed a check for the first premium about 9:00 p. m. that night, received in the Stone office on Monday, April 22,1963.

Mr. Zendt was an insurance broker with years of experience. Therefore, he was put in charge of the insurance program of the plaintiff.

He also had a contract with the defendant, the Manhattan Life Insurance Company, to solicit applications for insurance in Peoria and vicinity, and was authorized to deliver policies sent to him by the company “when the terms and conditions governing such delivery had been complied with.” This contract, in evidence as defendant’s Exhibit 1, contained this reservation: “No policy shall be delivered save during the applicant’s good health and after the first premium shall have been duly settled for.”

Thus Mr. Zendt had three positions: as an insurance broker, as a solicitor for the defendant, and as a director of plaintiff. The testimony is undisputed that in this particular case he was acting as broker. He testified that in all his dealings with the policy sued on he acted as broker, and the Stone Agency so considered him. He stated that when he procured insurance at the request of plaintiff, he charged them a brokerage commission. There was no evidence that the insured, Mr. Thomson, had ever seen this policy.

The judgment herein contained a finding that the policy had been unconditionally delivered to Mr. Zendt as the broker and duly authorized agent for plaintiff. This is correct but it conveys a false impression in that it would seem to indicate it was delivered unconditionally to the defendant whereas in fact, it was delivered to Mr. Zendt as the broker procuring a policy for his client. As such, he was entitled to look over the policy and see that it did accomplish for his client what he intended them to obtain. But he could not deliver it to the defendant to put it into effect until the first premium was paid during the lifetime of the insured.

As to the matter of waiver and extension of time, Mr. Zendt had read the policy carefully and thought there were some errors in the premium rates. He telephoned Miss Pierson about 9:00 a. m. that Saturday and told her his observations. He also told her he was trying to contact the fiscal officers of his company but had not been able to do so at that time.

Miss Pierson called him back within the hour and confirmed that the first premium stated by the policy as $2427 was correct. She also testified she told him “if he had his appointment or if he could get in touch with either Mr. Mathias or Mr. Thomson and pick up a check for $2427, the initial premium, and deliver it to me, bring it to me, that the policy would be in full force and effect.”

We perceive nothing in this statement nor in anything else in the testimony of Miss Pierson indicating that the provisions of the policy were waived, or that the policy would be in effect even though the first premium had not been paid. Of course, she was a defense witness, therefore we expected the appellee to point out some contradictory testimony to justify the trial court’s disbelief of Miss Pierson. Nothing whatever of that kind has been called to our attention. On the contrary, Mr. Zendt, the only other party to the conversation, testified in substance to the same effect. He said Miss Pierson told him “if you mail in the first premium or get it to us, the policy will be effective as soon as the premium is received.”

There was no possibility of anyone else testifying to this conversation other than by hearsay; thus we are at a loss to find any support for the claim of an oral waiver.

Although the plaintiff had other policies issued by defendant, there was no testimony of any previous acts of the defendant, by way of waiver or deferment of any policy conditions, which might have misled plaintiff’s officials. Hence, there was nothing in the previous course of business between the parties that would cause a reasonable man to believe the conditions of the policy could be waived by the local agency.

Much of the plaintiff’s testimony had to do with alleged errors in the policy, and there was some talk of having to send it back to the home office for correction. We see no significance in this. Surely, if the broker for the plaintiff was not satisfied with the policy and wanted some changes made, this would not cause it to become effective at once without compliance with its stated conditions. No effort was made to assert that the initial premium of $2427 was incorrect. It developed that this would be the annual premium for six years. Thereafter there would be reduced premiums. The plaintiff cites Electric Life Ins. Co. v. Fahrenkrug, 68 Ill 463 (1873) and John Hancock Mut. Life Ins. Co. v. Schlink, 175 Ill 284, 51 NE 795 (1898) as approving the doctrine that the conditions in the policy may be waived orally by a local agent having “apparent authority.” These holdings may have been motivated by the belief that very few of millions of insureds ever bothered to read their policies, and probably even fewer beneficiaries.

At any rate, it is a general rule as to insurance policies that: “the insured is bound by all the limitations of authority of an insurance agent of which he has notice.” 29A Am Jur, p 211; 29 Am Jur, “Insurance,” §§ 146 and 147, N 13; 45 CJS, “Insurance,” § 609, N 35. Zendt knew from experience that life insurance policies customarily contain limitations like the one in this case. He had actually read this policy and knew of the limitations of the agent’s authority therein. He cannot claim that he was misled by anything Miss Pierson told him nor that he relied upon oral statements to overcome the written provisions of which he had notice.

The cases cited in the above notes are from various states but the same rule has been followed in Illinois. Rummler v. Metropolitan Life Ins. Co., 316 Ill App 362, 45 NE2d 86. For the reasons given the judgment in this case is reversed.

Reversed.

STOUDER, J., concurs.

ALLOY, P. J., dissents.

ALLOY, P. J.,

dissenting:

I cannot concur in the majority opinion in this cause. I feel that this is a case which is essentially one of a determination by the trial court of disputed factual issues. The first question is whether there was sufficient evidence to support the finding by the trial court that there was either an express or implied waiver by Manhattan of the condition of its policy requiring prepayment of its initial premium. It is true, as appellee contends, if the trial court was correct in finding such waiver either express or implied, that plaintiff is entitled to recover on such theory alone. It also follows that if the finding of an express or implied waiver was not based on sufficient evidence then plaintiff would be entitled to recover if there is evidence in the record to support the finding of the trial court that plaintiff relied upon the representation of the defendant insurance company and delayed in making immediate payment of the premium (which plaintiff otherwise would have done) to the prejudice of the plaintiff. If this were so, then plaintiff would be entitled to recover (A-1 Cleaners & Dyers v. American Mut. Liability Ins. Co. of Boston, 307 Ill App 64, 30 NE2d 87, at 88).

This case is unique only in the fact that the insured died suddenly and unexpectedly during the period of delay in the mailing of the premium. It is clear that if the check for the premium had been mailed prior to the death of the insured Thomson, plaintiff would have been entitled to recover. Were there particular developments shown in the record which should operate to deprive plaintiff of its right to recover simply because the premium payment was delayed? It is notable that the trial court found that there was an unconditional delivery of the policy without the requirement of payment of the premium and there was evidence to support the court’s conclusion on this issue. The express stipulation of the policy, to the effect that the policy would not be in force until the first premium was paid, could be waived by an unconditional delivery of the policy upon an implied understanding that extra time is allowed for such payment (John Hancock Mut. Life Ins. Co. v. Schlink, 175 Ill 284, at 292, 51 NE 795). The record discloses that the policy was delivered manually to plaintiff without a request for payment. There was evidence that it would be “in full force and effect” even though it was to be returned to the home office for correction of clerical errors. The finding of the trial judge that the time for payment had been extended until the next working day was justified on the basis of evidence in the record. There was evidence of the authority of the representative of the agency to deliver the policy and to pick it up for correction. There was also evidence that the representative of the plaintiff company requested information as to the amount for the initial premium. There was evidence that the representative offered to pay the premium from his personal funds. The representative of the selling insurance agency stated that plaintiff’s representative could get a check for the initial premium to her and she would send it with the policy to the home office of Manhattan. Such payment would be received if mailed on Monday, April 22, 1963. Payment was in fact transmitted (even though after the death of the insured) within such period of time. So far as the record is concerned the court, even though the evidence was conflicting, could have con-eluded that time of payment was extended until April 22, 1968.

On the record, the trial court could properly conclude that the delay in payment was initiated by the errors of the defendant insurance company in the preparation of the policy which led the local agent to extend the time for payment. The complicated rate structure in the policy was also a contributing circumstance. It is also apparent that the trial court’s finding that the agreement to send the policy in for correction and waiver of prompt payment until the following working day was supported by evidence in the record and justified plaintiff’s reliance upon the insurance company representation made through its local agent (Hooker v. Farmers Mut. Reins. Co., 304 Ill App 230, 26 NE2d 146, at 149). It is notable that plaintiff was not asking for a modification of the policy which had been delivered to it. The conclusion of the trial court, therefore, that the defense which was based on the ordinary printed provision in the policy (as to the policy being in force upon payment of the premium) was in fact waived by the company agents or, at the very least, plaintiff was entitled to rely on the representation that the payment of the premium could be delayed until the next working day.

The trial judge saw and heard the witnesses and his determination of the disputed factual issues relating to waiver or the representation that the payment of premium could be delayed was not contrary to the manifest weight of the evidence. The trial judge’s findings and conclusions should be affirmed in this Court even though we might come to contrary conclusions had we been sitting as a trial court.

It is, therefore, my conclusion that the judgment of the trial court should be affirmed.


author: ALLOY, P. J.

text:
    Charles T. Bell, Trustee Under the Will of Miriam E. Owsley, Deceased, Plaintiff-Appellee, v. Carthage College, a Corporation, Defendant-Appellant, and William G. Clark, Attorney General of the State of Illinois, Defendant-Appellee.
    Gen. No. 68-62.
    Third District.
    December 16, 1968.
    Inghram & Dittmeyer, of Quincy, and Samuel J. Naylor, of Carthage, for appellant.
    Max B. Stewart and Vilas C. Rice, of Carthage, and William G. Clark, Attorney General, of Springfield, for appellee.
   ALLOY, P. J.

This is an appeal by Carthage College, a corporation, from an order of the Circuit Court of Hancock County construing a certain will. The action originated as a chancery proceeding brought by Charles T. Bell, Trustee under the Will of Miriam E. Owsley, Deceased, for construction of certain portions of the will of decedent.

Miriam E. Owsley’s will, dated September 25, 1944, was admitted to probate on January 24, 1946. In Clause Eighth, the Testatrix provided in part “. . . and that after so converting said property into cash, that the same shall then be invested in Government Bonds, and the said fund so invested shall be established as a trust fund, the income therefrom to be used to pay or assist in the payment of tuition at Carthage College, Carthage, Illinois, of worthy men and women who desire to obtain an education and who do not have sufficient funds therefor.” Charles T. Bell was appointed Executor and Trustee of the Will. He paid the income from such trust to Carthage College at Carthage, Illinois, until August 5, 1964. In 1964, Carthage College moved from Carthage, Illinois, to Kenosha, Wisconsin. Carthage College was a four-year liberal arts college which had located in Carthage, Illinois, for a period of 90 years, and was located in Carthage, Illinois, at the time the Testatrix made her will and also at the time of her death. For a number of years prior to 1964, Carthage College maintained a campus at both Carthage, Illinois, and Kenosha, Wisconsin. At the end of the 1964 school term, all activities were transferred to Kenosha, Wisconsin, and the Carthage, Illinois, campus was closed. The college in Kenosha, Wisconsin, is still known as Carthage College and is still a four-year liberal arts college. Carthage College has been affiliated with the Lutheran Church both before and after its removal to Kenosha, Wisconsin.

In April, 1965, a liberal acts college known as Robert Morris College commenced classes at Carthage, Illinois, and is still in existence and operating in Carthage, Illinois. Robert Morris College is not a church-related college and is not and has not been a four-year liberal arts college.

The trial court held that with removal of Carthage College from Carthage, Illinois, of the educational activities to Carthage College at Kenosha, Wisconsin, the trustee is no longer authorized or empowered by the will to use the income to pay or assist in the payment of tuition at “Carthage College, Carthage, Illinois, of worthy men and women who desire to obtain an education and do not have sufficient funds therefor.” The trial court then invoked the “cy pres” doctrine and directed the trustee to use the income to pay or assist in paying tuition at Robert Morris College, Carthage, Illinois, for worthy young men and women, as defined in the trust. The issue before us, therefore, is whether the trial court was correct in applying the cy pres doctrine and thus directing that the trustee pay the income to students attending Robert Morris College at Carthage, Illinois.

The parties to this cause agree that in the construction of a will, the court should seek to ascertain the intention of the testatrix (Dillman v. Dillman, 409 Ill 494, 502, 100 NE2d 567; Bartlett v. Mutual Benefit Life Ins. Co., 358 Ill 452, 193 NE 501; Davidson v. Davidson, 2 Ill2d 197, 117 NE2d 769). The parties, however, have divergent points of view as to whether the trial court was correct in reading into the trust provisions of the Owsley will a condition that if Carthage College moved from Carthage, Illinois, that the trustee was not to pay tuition for worthy students to attend Carthage College. Since the removal of the college was apparently a development which was not contemplated when the testatrix made her will, was the determination of the court justified in view of the provisions of the will?

In Gridley v. Gridley, 399 Ill 215, 76 NE2d 146, the court was concerned with the rule of construction which results if a condition arises after a testator’s death which the testator did not contemplate. The court there stated that a trial court cannot surmise what the testator would have done had he considered the new condition. In the Gridley case, the will left a life estate and alternative contingent remainders to heirs of the body of the life tenant and heirs of the body of the testator. There was no provision as to what was to be done with the property if there was a failure of heirs of the body of both the life tenant and the testator. The contention was made in that case that the testator did not use the words “heirs of my body” in the literal sense, but instead that he had a different intention. The court, in refusing to find any intent other than that expressed in the will itself, stated (at page 229): The emphasis on not permitting a court to make the new will for the testator was also noted in McFarland v. McFarland, 177 Ill 208, at 218, 52 NE 281:

“The construction of a will is not made to depend upon subsequent facts or conditions arising after the will took effect. (Harvey v. Ballard, 252 Ill 57.) The courts cannot found a construction of a will on conjecture, but must take the language of the will as they find it. When a condition has arisen in regard to a testator’s estate which he had not taken into consideration and which he would probably have provided for if he had thought of it when making his will, the court cannot conjecture what provision he would have made unless that provision is contained in the words he has used in making his will. (First Trust and Savings Bank v. Olson, 353 Ill 206.) The intention of the testator is not to be deduced from speculation as to what he would have done had he anticipated a change in the circumstances surrounding him at the time of the execution of the will, since this would amount to making a will for him and not to interpreting the will he has made.”
“It may be that the testator in the case at bar was not, when writing his will, mindful of the fact one or more of the devisees might die, and that had this occurred to him he would have provided that a disagreement between the two remaining devisees, and their failure to continue the management and control of the “Ketreat,” would determine their estate and authorize the sale of the property by the executors. Courts cannot, however, determine, by mere conjecture, that the testator omitted from his will provisions that he would have incorporated if he had not overlooked probable future occurrences, and undertake to rectify such omission, for to do so would be to incorporate, by construction, a new clause in the will. This would not only be contrary to the will as made, but would be making a new will.”

Other Illinois courts have reached similar conclusions (Harvey v. Ballard, 252 Ill 57, 96 NE 558).

In the case before us, the testatrix had Carthage College in mind when she made the will. Carthage College is still in existence even though it has moved. The fact that the testatrix’ will describes the college as “Carthage College, Carthage, Illinois” does not in itself establish a condition that the gift was to benefit students only so long as the college continued to be located in Carthage, Hlinois. It may be noted that it is common practice in the drafting of wills to include the address of a beneficiary whether it is an individual or an institution. If an individual had been the beneficiary, certainly the change of address would not have affected the gift to that individual. While there was only one Carthage College

in existence at the time decedent made the will, there were other cities named Carthage than the one located in Illinois. Had the testatrix stated that the benefits were to be conferred upon students for studies at Carthage College “so long as it is located in Carthage, Illinois” the intention of the testatrix to condition such gift upon the continued location of Carthage College at Carthage, Illinois, would have been clear. Such language, however, was not used. The language of the will specified no such condition.

A case in which the facts are similar to those in the instant case was Starr v. Morningside College, 186 Iowa 790, 173 NW 231. In that case there was a bequest to the “Charles City College of Charles City, Iowa.” The will was made by a man who lived in Charles City for 50 years before making his will and codicil. He was a businessman in the city and identified with the affairs of the city. The college moved from Charles City to Sioux City, Iowa, and it was argued that this made the will provision invalid. The court in that case, in refusing to set aside the gift, said (173 NW 231, at 234):

“Testator could have made it a condition of his bequest that the college should remain at Charles City, or, if it removed therefrom or was merged in any other institution, the fund should revert. This he did not do. . . . That testator may have supposed that the college would remain at Charles City, because it was located there at the time the codicil was executed, will not operate to defeat the bequest in the absence of such a condition.”

We believe that the same considerations apply in the instant case and compel the conclusion that the specific provisions of the will should be adhered to. The trustee in the case before us argues that the Iowa case cited is not similar to the case before us because in the Starr case the gift was directed to the college and in the instant case, the gift was to “worthy young men and women” who wished to attend Carthage College. We do not believe that such a distinction is a sound one. The significant conclusion in the Starr case is that the change of address of the college did not operate to affect the gifts.

Since Carthage College is still in existence and has only changed its address to Kenosha, Wisconsin, we do not believe the court was justified in applying the cy pres doctrine. The cy pres doctrine should only be applied if the mode or manner prescribed in the instrument setting up the charitable bequest is not practical or feasible (Board of Education v. City of Rockford, 372 Ill 442, 24 NE2d 366, 371; Hardy v. Davis, 16 Ill App2d 516, 148 NE2d 805). It is, therefore, our conclusion that the court would not be justified in reading into the will an intention that the bequest was only to benefit students from Carthage College so long as it remained in Carthage, Illinois. No expression of such intention is found anywhere in the will and a contrary intention to benefit the students of Carthage College wherever it might be located is just as probable. There is nothing in the record or any claim made that there are no worthy men or women now attending Carthage College at Kenosha, Wisconsin, or that there will be none in the future who desire to obtain an education and who do not have sufficient funds therefor. We see no impossibility or impracticability in carrying out the charitable purposes expressed by the decedent in the instant case.

We do not believe that we are justified in rejecting the language of the will or in invoking the cy pres doctrine for a similar worthy objective. Accordingly, the order of the Circuit Court of Hancock County is reversed and this cause is remanded to the Circuit Court with directions to enter an order herein directing Charles T. Bell, Trustee under the Will of Miriam E. Owsley, deceased, to use and distribute the trust income as provided for in Clause Eighth of the will of the decedent, to pay or assist in the payment of tuition at Carthage College, now located at Kenosha, Wisconsin, of worthy men and women who desire to obtain an education and do not have sufficient funds therefor.

Reversed and remanded with directions.

STOUDER and SCHEINEMAN, JJ., concur.


text:
    Icle Luker, Administrator of the Estate of John Burkey Luker, Deceased, Plaintiff-Appellee, v. Contract Steel Carriers, Inc., a Foreign Corporation, Defendant-Appellant.
    Gen. No. 68-71.
    Third District.
    December 16, 1968.

      Hupp & Irion, of Ottawa, for appellant.
    Berry & O’Conor, of Ottawa, and Reidy, Katz, McAndrews, Durkee & Telleen, of Rock Island, for appellee.
   ALLOY, P. J.

lele Luker, as administrator of the estate of John Burkey Luker, deceased, filed a wrongful death action seeking damages as a result of the death of her intestate husband, John Burkey Luker, against Contract Steel Carriers, Inc. The action was the result of a collision of two trucks on Interstate 80 on May 22,1964. The truck which the decedent John Luker was driving struck the rear of a truck driven by a Frank McCollum, an employee of defendant, Contract Steel Carriers, Inc. McCollum died approximately two years following the accident from other causes and there was, therefore, no testimony in the cause from him. Investigating officers, however, reported the description of events prior to the accident given to them by McCollum. This indicated that McCollum had pulled off Route I 80 at the Utica exit to check his tires as required by company rules. He then pulled back onto I 80 at the Utica entrance and proceeded on west. The accident occurred % of a mile west of where the Utica entrance blends in with I 80. The grade of the road in this area is downward as it runs west. The truck driven by McCollum was carrying steel and the truck and the load together weighed approximately 70,000 pounds.

John Luker, the deceased husband of the plaintiff administrator, was driving out of Chicago in a cattle truck which was empty. He had met a friend, a Mr. Lansing at the stockyards and they were driving back toward New Windsor, Illinois, in separate trucks yet close enough so they could see each other. Lansing testified that both men lay down and rested for about three hours in Chicago. They left Chicago about 1:30 o’clock a. m. They stopped for breakfast, and stopped again at the intersection of Route 66 and I 80. Luker was in the lead as they turned onto Route I 80 and then, on an upgrade, Lansing passed him. About 2y% miles from the Utica overpass Lansing stopped his truck to check his tires and when Luker came up behind Lansing, Luker slowed down. Lansing waved Luker on through as there was no problem with his tires. Lansing then pulled back on the road and Luker was still within his view. After Luker passed Lansing, Luker had on his right turn signal and pulled into the north lane of Route I 80 going west. Lansing then followed Luker’s truck under the Utica overpass and Lansing was about % mile behind Luker.

Lansing testified as to what occurred at this moment which was about 4:30 or 4:45 a. m. It is the only direct testimony as to what occurred. He stated: “At the overpass Luker was about a half mile ahead of me. He was then in the right-hand lane. His motion up to that time was straight-on. I at no time saw a unit proceeding westward ahead of Luker. As I was coming down the grade, all of a sudden the trailer lights on Luker’s truck went off. It hit me that something had happened. I kind of slowed down. When I got close enough I could see there was a wreck. I could see all this dust, material laying all over the highway, scattered everyplace. After leaving the overpass the road bends a little to the northwest then it comes back more to the west and it’s downhill. The accident was about a mile from the Utica overpass. It is still going downgrade there. The first thing I saw was Luker’s unit, the rear of his trailer, clean in the south lane. The tractor was just on the edge of the south lane. The front of the tractor was just a little bit off of the south lane. I saw this as I was pulling up to where the accident was. I then saw the steel truck. I saw it in motion trying to get off on the shoulder. It didn’t get off before it came to a halt.”

The cab portion of the Luker truck was a total loss and the damage to the McCollum truck was confined to the left rear portion of the truck. Luker’s body was thrown from the truck and came to rest to the north side of the pavement. The rear tandem of the trailer was pulled out of the box and the trailer was heaved up. Lansing testified that he noticed some skid marks leading up to the Luker unit, which marks were in a southwest direction from the north lane of Route I 80. He also stated that these skid marks started about 50 feet behind where the Luker unit came to rest after the accident. He also noted that there were black marks on the north lane from what appeared to be the point of impact, and that these marks ran to the McCollum truck. Lansing testified that most of the debris was along the side of Luker’s trailer. Lansing testified that Luker’s truck had a speed governor which limited Luker’s speed to 54 or 55 miles per hour and that in his opinion Luker was traveling 52 to 53 miles per hour at the time of the accident. Lansing also testified that he had observed Luker drive on numerous occasions and that Luker was a really good driver, observing the rules and regulations very well. On cross-examination Lansing testified that as he approached the scene of the accident, he had his lights on high beam and he could observe the Luker truck about 500 feet away. The lights of the Luker truck were then off following the collision, but Lansing testified he could still see the Luker truck. Lansing testified that the lights on the right side of the McCollum truck were on when he arrived but the lights on the left side were off as they were damaged by the accident. Lansing said that if it had not been for the dust created by the accident he could have seen the two trucks about 700 to 800 feet away. Lansing stated that he had no idea as to the movements or actions of the McCollum truck before the accident as he did not see it prior to the accident.

The two police officers who investigated the accident also testified. Trooper Niles was the first on the scene. He found the Luker truck with the cab nose down in the median between the east and west portion of I 80 and the rear of the trailer was in the south lane of westbound I 80. Niles requested McCollum to move his steel carrying truck off the road to avoid a traffic tie-up. Niles testified that he could find no skid marks to indicate that brakes were applied on either vehicle prior to the accident. The debris and marks on the highway started on the north lane and carried over into the south or passing lane according to Niles. Niles testified that he had investigated over 100 accidents and that from his experience he was able to form an opinion as to the point of impact. He testified that in his opinion, the impact occurred in the north or right-hand lane of traffic. In referring to photographs of the accident scene, Niles said the point of impact was in the center of the north lane in what is called the driving lane. On cross-examination he stated that most of the staining, the saturated area, and the black marks were south of the center line. Robert Current, the other officer, told of the position of the two trucks when he arrived, which was after McCollum had moved his truck. Current testified that he had investigated over 200 accidents and from observing the debris, tire marks, and other evidence, he was of the opinion that the point of impact was in the extreme north lane in the westbound lane, in the north half of the highway. He testified as to seeing tire marks in the north lane running into the south lane leading up to where the Luker truck came to rest. He felt the McCollum truck left marks when its springs broke and locked up the rear end. He testified that the oil marks were clearly on the south side of the center line.

The complaint filed by the plaintiff charged the defendant with a number of acts of negligence including failure to keep a lookout, stopping a vehicle on a highway so as to obstruct westbound traffic, defective taillights, turning in front of plaintiff without signaling, failing to yield the right of way, and, also, carelessly operating a vehicle at such slow speed as to impede and obstruct traffic approaching the rear in violation of the statute (1963 Ill Rev Stats, c 95y%, § 148, par 51, sub par (a)). Two instructions were given at the request of plaintiff and objected to by the defendant. The instructions were as follows:

Instruction 15: “There was in force in the State of Illinois at the time of the occurrence in question a certain statute which provided that:
“ ‘No person shall drive a motor vehicle at such a slow speed as to impede or block the normal and reasonable movement of traffic except when reduced speed is necessary for safe operation of his vehicle or in compliance with law.’ ”
Instruction 71: “The plaintiff, as administrator of the estate of John Burkey Luker, deceased, claims that she, as widow, and the lineal next of kin of said decedent, sustained damages while said decedent was exercising ordinary care and that the defendant was negligent in one or more of the following respects:
“ T. Negligently managed, operated and controlled defendant’s motor vehicle so as to cause the motor vehicle being then driven by plaintiff’s intestate to run into and strike the motor vehicle of defendant.
‘2. Drove and operated defendant’s motor vehicle at such a slow rate of speed so as to impede and block the normal and reasonable movement of traffic approaching from the rear, in violation of Section 148, paragraph 51, subparagraph (a) of Chapter 95y% Illinois Revised Statutes 1963.’
“The plaintiff further claims that one or more of the foregoing was the proximate cause of the damages claimed.
“The defendant denies that it was guilty of negligence in any of the things claimed by plaintiff and denies that the plaintiff’s intestate was in the exercise of ordinary care.”

Defendant also objected to the court’s refusal to give an instruction which said “that the court instructs the jury that it is the duty of all persons operating motor vehicles upon a public highway to keep and maintain a reasonable lookout.”

The court refused to direct a verdict for defendant at the close of plaintiff’s evidence and again refused to direct a verdict at the close of all the evidence. The case was submitted to the jury which returned a verdict for plaintiff in the sum of $31,211.78. On appeal in this Court, defendant contends (1) that there is no evidence to support the verdict of the jury either as to the alleged negligence of defendant or as to the matter of due care of plaintiff; (2) that the verdict is against the manifest weight of the evidence; and, also, (3) that the court erred in giving plaintiff’s instructions 15 and 17 and in failing to give defendant’s instruction 6 referred to.

Questions of negligence and contributory negligence are ordinarily for the jury (Brichacek v. Hampton, 54 Ill App2d 284, 203 NE2d 737; Vasic v. Chicago Transit Authority, 33 Ill App2d 11, 180 NE2d 347; Larson v. Harris, 38 Ill2d 436, 231 NE2d 421). It is also clear that where direct evidence of negligence or contributory negligence are not available, such negligence may be proven by facts and circumstances from which it may be reasonably inferred (Hann v. Brooks, 331 Ill App 535, 73 NE2d 624; Larson v. Harris, 38 Ill2d 436, 231 NE2d 421).

We note from the record that plaintiff’s intestate was a man of good habits, who habitually exercised due care on the road. The evidence showed that he passed under the Utica overpass traveling slightly in excess of 50 miles per hour on a downgrade within a couple of minutes after defendant’s steel carrier had entered Interstate 80 on the ramp leading from the overpass on the north side of Interstate 80; that the entry onto the highway was not visible to plaintiff’s intestate and that the steel carrier was ahead of plaintiff’s intestate on the highway sloping toward the west. The evidence disclosed that about %0 of a mile from the ramp entry, plaintiff’s intestate came upon a flatbed carrier which, from the evidence, may have been stopped or moving very slowly; that from the evidence it could have been reasonably deduced that plaintiff’s intestate attempted to swing clear to the left on the most southerly lane for westbound traffic or that the carrier had changed its position on the highway immediately before the crash so as to make the move imperative. The evidence could have justified a reasonable conclusion that such attempt on part of plaintiff’s intestate was not successful and that the collision resulted between the front of the tractor-trailer, which plaintiff’s intestate was driving, and the left rear corner of the steel carrier with such tremendous force as to throw plaintiff’s intestate completely clear from his tractor onto the north shoulder and behind the steel carrier. It caused total destruction of the tractor which he was driving. The truck driven by Luker proceeded to the south side of the highway even though there was no driver guiding it at that time and stopped a short distance from the point of impact.

In view of such evidence including photographic exhibits, the physical evidence at the scene of the crash, testimony as to careful driving habits of plaintiff’s intestate, the testimony of Lansing and the officers, with the inferences to be drawn therefrom, it would not have been proper for the court to direct a verdict (Hann v. Brooks, 331 Ill App 535, 73 NE2d 624; Larson v. Harris, 38 Ill2d 436, 231 NE2d 421). As the Supreme Court had indicated in Pedrick v. Peoria & Eastern R. Co., 37 Ill2d 494, 229 NE2d 504, directed verdicts or judgments notwithstanding the verdicts should be entered only in those cases in which all the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors the movant that no contrary verdict based on the evidence could ever stand.

We note in the case of Larson v. Harris, 38 Ill2d 436, 231 NE2d 421, that the host driver testified that the auto and brakes were in good condition; that he was not asleep; that he was traveling between 50 to 60 miles per hour on a straight highway; that he had no recollection of events after they left the dancehall, by reason of injuries; that a State Trooper testified that the auto crossed the median strip; that it traveled 249 feet on the left shoulder and then left the highway and stopped. The court concluded that there was sufficient evidence to submit the case to the jury on the question of the host driver’s wilful and wanton negligence in a case in which there were no eyewitnesses. The court there indicated that the Pedrick case was not to be distorted to justify a conclusion that the trial court was in any manner to substitute its judgment for that of the jury, and that a verdict was only to be set aside if the evidence so overwhelmingly favored the defendant, that no verdict except one for the defendant could be permitted to stand. We, therefore, conclude that the issues of defendant’s negligence and of plaintiff’s contributory negligence were questions of fact for the jury and that the jury verdict should be permitted to stand. To come to any other conclusion would require that the trial court indulge in speculation as to what the operator of the defendant’s truck was doing and also as to what plaintiff’s intestate was doing at and prior to the time of the accident. The determination of these issues, on the basis of the record and photographs and the evidence, were clearly questions of fact for the jury.

Instructions 15 and 17 objected to by defendant were Illinois Pattern Instructions. Instruction 15 was IPI No. 60.01 and 60.01 (rev) and simply set forth the statute which prohibited driving at such a slow speed as to impede or block normal and reasonable movement of traffic except when reduced speed is necessary to safe operation or in compliance with the law. The instruction simply admonishes the jury that if any party violated the statute, such violation, with all facts and circumstances, could be considered in determining if such party was negligent. Such instruction was proper in view of the facts and circumstances in the case. Instruction 17 was an issues instruction and in the language of Illinois Pattern Instruction 20.01 and included as clause number two thereof, the allegation of defendant’s specific negligence in driving too slowly in violation of the statute referred to. We find no reversible error in the giving of either of such instructions.

Defendant’s Instruction 6 referred to, which was refused by the court, simply instructed the jury that it was the duty of all persons operating motor vehicles upon a public highway to keep and maintain a reasonable lookout. Defendant’s Instruction 8, which was given, provided in part “The plaintiff has the burden of proving each of the following propositions: first, that plaintiff’s intestate, John Luker, before and at the time of the occurrence was using ordinary care for his own safety.” In view of such instruction we can see no reversible error in the refusal to give the instruction as to maintaining a reasonable lookout.

The instant case is a typical case which poses difficult problems for both plaintiff and defendant as well as the trial court. The evidence was adequate to justify the jury in concluding that defendant was negligent and that plaintiff was free from contributory negligence, based upon circumstances and facts testified to by persons who were at the scene following the collision, coupled with evidence of good driving habits. Negligence of the respective drivers were questions of fact for the jury and the conclusions of a jury on such questions of fact should not be disturbed either by a trial court or a court of review, based upon a conclusion that either the trial court or court of review had come to different determinations upon the same set of facts.

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

Affirmed.

STOUDEK and SCHEINEMAN, JJ., concur.


author: MR. JUSTICE MURPHY

text:
    People of the State of Illinois, Plaintiff-Appellee, v. William J. Walker, Defendant-Appellant.
    Gen. No. 51,885.
    First District, First Division.
    December 16, 1968.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Theodore A. Gottfried 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 S. Veldman, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE MURPHY

delivered the opinion of the court.

In a bench trial, defendant was found guilty of voluntary manslaughter (his wife). He was sentenced to 10 to 20 years in the penitentiary.

On appeal, defendant’s basic contentions are: (1) that he was not proved sane beyond a reasonable doubt; and (2) that the court committed reversible error when it sentenced him without a hearing in aggravation and mitigation.

The facts are not in dispute. On April 15, 1965, defendant, William J. Walker, a detective with the Illinois State Police, resided with his wife, Arlene (a Chicago school teacher), and four children in their home at 7451 South Aberdeen Street, Chicago. At about 5:30 p. m., the defendant and Mrs. Walker engaged in an argument, which resulted in defendant fatally shooting his wife. He called the Chicago police and informed them that he had killed his wife. Pursuant to a radio call, two Chicago police officers proceeded to defendant’s address, where they found him standing on the sidewalk, apparently waiting for them. Defendant stated he had “shot her,” and then led the two officers into his home, where he pointed out the gun he had used. The body of Arlene Walker was lying on the floor of the kitchen.

Defendant testified that he worked that day and returned home about 5:00 p. m. He was wearing his service revolver. He recalled having words with his wife, but he did not remember anything about the actual shooting. He did not plan to take his wife’s life. He was aware that sometime during the evening of April 15, 1965, he shot his wife. He did not recall firing his service revolver and first realized that he had shot his wife when she was lying on the floor. He stated that he did not knowingly shoot his wife.

Dr. Kermit Mehlinger, a psychiatrist, testified for the defense. He had been engaged in that field for about five years, and his experience included duties in a mental hospital where he was in charge of a ward for the criminal insane. He examined defendant on August 17, 1965, and again on February 12, 1966. He testified in detail as to his examination of defendant and of defendant’s background commencing with childhood. In response to a lengthy hypothetical question based on his examination of defendant, he stated that such a person lacks substantial capacity to appreciate the criminality of his conduct, and the action of such a person at the moment of the act of hostility could be “accounted for psychodynamically as an overwhelming surge of hostile aggressive impulses, representing a backlash of long standing hostility that this man has not been able to express since early childhood, which at that moment, due to the fact that we can add the alcohol, weakened his ego controls so that he did not have enough ego defense to actually contain the furor, and aggressivity at that moment could actually transiently overwhelm his conscious control. He would act out at a very primitive level, at the level of an animal,” and could be described as “being transiently psychotic.”

In rebuttal, one of the arresting officers, Edward Kodatt, testified that he was with defendant about a half hour on the night of April 15, 1965, and from his observations at that time defendant was sane. He never studied nervous or mental diseases and his opinion was a lay opinion.

After hearing final arguments, the trial court reviewed the evidence at length, including the medical testimony offered in defense, and found the defendant guilty of voluntary manslaughter and sentenced him.

Initially we consider defendant’s contention that he was not criminally responsible for his conduct because at the time of committing the offense he lacked “substantial capacity to appreciate the criminality of his conduct” and could not conform his conduct to the requirements of law. This defense was raised pursuant to chapter 38, section 6-2 (a) of the Criminal Code. Defendant argues that

“once there is evidence sufficient to raise a reasonable doubt of the sanity of the accused then the presumption of sanity ceases and the prosecution is then required to prove sanity of the accused beyond a reasonable doubt, as a necessary element of the crime charged.” Defendant’s authorities in support of the contention include People v. LeMay, 35 Ill2d 208, 220 NE2d 184 (1966), in which the court accepted the above concept of the burden of proof but stated that the record there raised a factual question for the jury on the issue of defendant’s sanity at the time of the occurrence.

Defendant argues that the testimony of Officer Kodatt was totally inadequate to support the finding of sanity at the time of the shooting, and that “while lay testimony is admissible on the issue of sanity, the court should give little weight to the testimony where the witness did not have sufficient time to observe the defendant and had no frame of reference to use in evaluating the defendant’s actions.”

The State points out that the relevant evidence on defendant’s mental capacity included the testimony of

(1) Officer Kodatt, who observed and spoke to the defendant shortly after the actual shooting had taken place;

(2) a young woman, who had been baby-sitting with defendant’s children in his home at the time of the shooting; (3) several old acquaintances, who testified that defendant’s reputation was good, and on cross-examination also testified that the defendant had not, in their presence, engaged in any violent or explosive conduct or unusual behavior; and also (4) that the trial judge had an opportunity to observe defendant’s demeanor and behavior for himself.

In a bench trial, the question of mental capacity, or lack thereof, of the defendant at the time of the commission of the crime charged, is a question of fact to be determined by the trial judge on the basis of all of the evidence presented before him, and a reviewing court will not disturb the finding unless it is palpably against the weight of the evidence so as to indicate the finding was based on prejudice or passion. People v. Thomas, 409 Ill 473, 478, 100 NE2d 588 (1951).

In People v. Muniz, 31 Ill2d 130, 198 NE2d 855 (1964), it is said (p 137):

“Where, as here, defendant waives a jury trial, the court becomes the trier of fact . . . and, therefore, fully competent to determine the question of defendant’s sanity or lack thereof at the time of the crime.”

In People v. Williams, 38 Ill2d 115, 230 NE2d 224 (1967), it is said (p 123):

“[T]he general rule is that nonexpert witnesses may give their opinion as to an individual’s sanity based on their personal observations.”

We conclude that this record reveals the trial judge made a careful consideration of the weight and credibility of the testimony of all the witnesses who appeared before him, and from that consideration he determined that defendant was sane at the time of the shooting. We find no reason to disturb this finding.

Next considered is defendant’s contention that he was sentenced without a hearing in aggravation and mitigation, as directed in chapter 38, section 1-7 (g), Ill Rev Stats. The record does not show such a hearing.

The State contends that defendant waived such a hearing because he did not request it. Also, the State asserts that a great deal of the evidence at the trial gave the court information of defendant’s past life, occupation and general reputation. From this the State argues, “From all of the evidence presented it is clear that the court had before it all of the information necessary to determine the mitigating factors which might warrant a less stringent sentence being imposed upon William Walker. It may well have been for this reason that defense counsel made no offer of evidence in mitigation, thus waiving the right to such a hearing. The purpose of such a hearing is to bring such evidence before the trial judge and, therefore, where the judge is already in possession of it there is no need to go through the hearing.”

We do not agree with contentions of the State on this issue. In People v. Sessions, 95 Ill App2d 17, 288 NE2d 94 (1968), this court reviewed at length the statute and the current authorities on this point and said (p 27).

“Because the holding of a hearing in aggravation and mitigation is a mandatory procedure prior to the imposition of sentence, we hold that the State has the burden of showing that the defendant expressly and understandingly waived his right to such a hearing.”

The statement there made applies here: “The State has not carried its burden of showing that such a waiver was made in the instant case.” Therefore, under the power vested in us by Supreme Court Rule 615, we affirm the judgment of the trial court finding defendant guilty of voluntary manslaughter. Defendant’s sentence is reversed and the cause is remanded to the trial court with directions to hold a hearing in aggravation and mitigation as to the moral character, life, family, occupation and criminal record, if any, of the defendant, considering as well the evidence received at the trial, and then impose sentence upon him.

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

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