author: MR. JUSTICE SEIDENFELD

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Robert James Bressette, Defendant-Appellant.
    Gen. No. 69-185.
    Second District.
    June 9, 1970.

      Robert P. Will, Jr., Public Defender, of Waukegan, and Wayne B. Flanigan, Assistant Public Defender, of Zion, for appellant.
    Jack Hoogasian, State’s Attorney, of Waukegan, and Nello P. Gamberdino, Assistant State’s Attorney, for appellee.
   MR. JUSTICE SEIDENFELD

delivered the opinion of the court.

Defendant appeals from an order denying his motion in arrest of judgment entered after conviction by a jury upon an indictment charging the offense of reckless homicide (Ill Rev Stats 1967, c 38, § 9-3 (b)).

Whether the defendant’s prior plea of guilty before a magistrate on a traffic offense alleging wrong lane usage (Ill Rev Stats 1967, c 95%, § 156), precluded the State from proceeding on an indictment for the offense of reckless homicide, is the sole issue raised.

The issue relates to the effect of Ill Rev Stats 1967, c 38, §§ 3-3 and 3-4 (b) which provide, as relevant here,

“Sec. 3-3. Multiple Prosecution for Same Act.
“(a) When the same conduct of a defendant may establish the commission of more than one offense, the defendant may be prosecuted for each such offense.
“(b) If the several offenses are known to the proper prosecuting officer at the time of commencing the prosecution and are within the jurisdiction of a single court, they must be prosecuted in a single prosecution, ... if they are based on the same act.
“Sec. 3-4. Effect of Former Prosecution.
<e
“ (b) A prosecution is barred if the defendant was formerly prosecuted for a different offense, or for the same offense based upon different facts, if such former prosecution:
“(1) Resulted in either a conviction or an acquittal, and the subsequent prosecution is for an offense of which the defendant could have been convicted on the former prosecution; or was for an offense with which the defendant should have been charged on the former prosecution, as provided in Section 3-3 of this Code (unless the court ordered a separate trial of such charge); or was for an offense which involves the same conduct, unless each prosecution requires proof of a fact not required on the other prosecution, or the offense was not consummated when the former trial began; . . . .
(C 79

On September 7th, 1968, Robert James Bressette was involved in an automobile accident in which three persons were killed at the scene. He was arrested by a county deputy sheriff and immediately charged with the wrong lane usage offense. The UART ticket-complaint was set for hearing before a magistrate on September 25th, 1968. Upon this return date the defendant pleaded guilty and was assessed a fine and costs. The record is silent-on the subject of whether a prosecutor was present at this hearing, but the State’s assertion that none was present and that the State’s Attorney was not advised of the traffic charge against the defendant prior to the hearing and plea, has not been controverted.

On October 28th, 1968, a four-count indictment was returned by the grand jury charging the offense of reckless homicide. After the trial and conviction under the indictment, defendant’s counsel brought the fact of the earlier conviction on the traffic complaint to the attention of the State’s Attorney and the court.

Defendant relies principally upon People v. Limauge, 89 Ill App2d 307, 231 NE2d 599 (1967) in support of his contention that the cited provisions of the criminal code bar the subsequent prosecution. In Limauge, the defendant was charged with the offense of driving on a revoked license immediately following an accident which involved a fatality. Subsequent to entry of a plea of guilty to that offense, he was indicted for reckless homicide and unsuccessfully moved the bar of the statute.

On appeal, the court first concluded that sections 3-3 and 3-4 (b) did not apply because the two charges did not arise out of the same “act” within the meaning of the statute. The opinion referred to a further point which the State had raised, that at the time the revocation charge was brought, the “aptness” of the homicide charge was not known in the sense that it could not be determined until further investigation that the State should bring such charge. The court’s comment, in the nature of obiter dicta was that, even assuming that a single act was involved, “aptness” was not the same as “known.” It was concluded that the homicide offense was “known” to the proper prosecuting officer at the time of the revocation conviction.

The record here presents a different case. The proper prosecuting officer had no knowledge of the prior traffic charge. In Limauge, such officer presumably knew of the prior charge, but allowed a plea of guilty to be entered to it while he further investigated it to determine whether an additional charge was “apt.”

The case before us, on the narrow issue presented, is determined by the holding in People v. Pohl, 47 Ill App2d 232, 241, 197 NE2d 759 (1964). In Pohl, the defendant was convicted before a justice of the peace on the traffic charge of driving on a revoked license, and fined. Subsequently he was charged by information with the same offense, convicted in the then county court, and sentenced. The bar of sections 3-3, 3-4, supra, was urged, and on appeal the judgment of conviction was affirmed. In a careful review, the court concluded that the legislature in the use of the term “proper prosecuting officer” referred to the state’s attorney and his assistants, and not to the state police officer who had made the initial arrest.

Defendant suggests that modern police procedures, coupled with the statutory duties of a state’s attorney to investigate possible crimes and attend prosecutions in the now unified circuit court, require that we impute the knowledge of the arresting officer to the state’s attorney. We do not preclude a case in which the denial by a state’s attorney that he has such knowledge may not be accepted where evidence in the record fairly points to a contrary conclusion, but this is not that case.

In reaching the result that the subsequent prosecution was not barred because the previous charge was unknown to the proper prosecuting officer, we do not reach defendant’s remaining contentions that both charges arose out of a single act within the meaning of the statute barring multiple prosecutions.

We affirm the judgment.

Affirmed.

ABRAHAMSON and MORAN, JJ., concur.


source: Caselaw Access Project

author: MR. JUSTICE ABRAHAMSON

license: Public Domain

text:
    Katherine Smythe Masters, Plaintiff-Appellant, v. Executor, Heirs, Legatees, Devisees, Distributors of the Estate of Paul H. Smythe, Jr., Deceased, Namely, Paul H. Smythe, III, Mary Anna Kimber Smythe Schroeder, Isabelle Kline Smythe, Robert Kline, and Nathan M. Cohn, Defendants-Appellees.
    Gen. No. 69-196.
    Second District.
    June 8, 1970.
    Katherine Smythe Masters, pro se, of Gurnee, appellant.
    Churchill & Baumgartner, of Grayslake, and Nathan M. Cohn, of Chicago, for appellees.
   MR. JUSTICE ABRAHAMSON

delivered the opinion of the court.

The plaintiff appeals from an order entered August 15, 1969, by the Circuit Court of Lake County that dismissed her petition brought under section 72 of the Civil Practice Act (Ill Rev Stats 1969, c 110, § 72) to set aside portions of a decree of divorce entered January 13,1948.

The decree awarded the plaintiff a divorce on grounds of physical cruelty and approved an oral property settlement agreed to by the parties. That settlement provided that the plaintiff would lease to the defendant her portion of a farm owned by them and that she would be entitled to occupy a residence located thereon. The decree further provided that the defendant pay to the plaintiff $100 a month alimony and reserved the question of custody of the then minor children of the parties for further consideration.

The petition, filed July 25, 1969, was brought against the “Executor, Heirs, Legatees, Devisees, Distributors of the Estate of Paul H. Smythe, Jr.” since Smythe had died on May 25,1968.

The agreement in regard to the farm proved transitory since a partition suit was instituted by the plaintiff and the property sold pursuant to a decree entered on February 27, 1951. That litigation was reviewed by this Court in Masters v. Smythe, 342 Ill App 185, 95 NE2d 719 (1950).

On December 20, 1957, the plaintiff filed a verified petition to modify the decree of divorce on the grounds that the defendant had “fraudulently” obtained her agreement to the settlement, concealed his true wealth and “. . . by artifice, falsehood and concealment, contrived to hide great sums of his assets in divers vaults and banks. . . .” The trial court dismissed the petition on the grounds that it was insufficient as a matter of law to give the court jurisdiction. On appeal, in Smythe v. Smythe, 28 Ill App2d 422, 171 NE2d 649 (published in abstract), we affirmed the trial court and pointed out that the petition alleged no specific facts “. . . that constitute fraud in and of themselves, or any alleged specific facts from which fraud will be necessarily implied.”

A petition for relief from a final order, judgment or decree brought under section 72 of the Civil Practice Act must be filed not later than 2 years after its entry. However, paragraph (3) provides that “Time during which the person seeking relief is under legal disability or duress or the grounds for relief is fraudulently concealed shall be excluded in computing the period of 2 years.” (Ill Rev Stats 1967, c 110, § 72 (3)).

The present petition states that “. . . heretofore petitioner alleges that grounds for relief was fraudulently concealed . . .” and “. . . that your petitioner has within the past two years come into information alleged to be specific facts of fraud on the part of the decedent . . . .” Paragraph 12 of the petition states “That the following described properties allegedly constitute fraudulently concealed properties of Decedent, Paul H. Smythe, Jr. on January 13, 1948” and lists 7 street addresses in Chicago and interests in two undisclosed partnerships. The petition prays that the portion of the decree that waived her dower rights in the property of the defendant be set aside.

It is apparent that the petition has been framed to correct the defects enumerated in the earlier case and to meet the minimal requirements of a section 72 proceeding. In addition to the fact that the petition is not supported by affidavit or “other appropriate showing as to matters not of record “as required by the Act, the petition fails to allege acts of fraud with any reasonable degree of specificity.

It is not sufficient to merely characterize certain acts as “fraudulent” to avoid the two-year period of limitation provided in the statute. Wienhoeber v. Wienhoeber, 53 Ill App2d 387, 202 NE2d 864; Smythe v. Smythe, 28 Ill App2d 422, 171 NE2d 649. “It is axiomatic that general averments of fraud are wholly inadequate and that such allegations should state specifically the inculpatory facts in order that they may carry their own conviction of fraud and in order that the wrongdoing may thereby be made more clearly to appear.” Nogle v. Nogle, 53 Ill App2d 457, 466, 202 NE2d 683.

The petition further sought an award of $24,500 for certain “unfulfilled terms of the Divorce Decree” that are themselves unclear. Since that portion of the petition seeks an enforcement of, and not relief from, the divorce decree, it was not properly before the court under a section 72 petition. Schwartz v. Schwartz, 69 Ill App2d 128, 216 NE2d 505. It would appear that the proper remedy for the petitioner in that respect would be a claim against the estate of the decedent.

For the reasons stated, the order of the trial court should be affirmed.

Judgment affirmed.

DAVIS, P. J. and SEIDENFELD, J., concur.


author: PER CURIAM.

text:
    Cecelia Etienne Aud, Plaintiff-Appellee, v. William Etienne and Gloria Etienne, Defendants-Appellants.
    Gen. No. 69-126.
    Fifth District.
    June 11, 1970.
    Deneen A. Watson, of Harrisburg, for appellants.
    Cecelia Etienne Aud, pro se, of Shawneetown, appellee.
   PER CURIAM.

This action arose as a consequence of a petition for writ of habeas corpus filed by plaintiff to enforce visitation rights given her under an Indiana divorce decree. The issues were joined upon the filing of the return and reply; evidence was heard and briefs submitted. The Court ordered that petitioner have custody at certain specific times and imposed certain conditions on petitioner’s custody. The appeal is from that order.

Neither respondents nor petitioner has questioned the jurisdiction of this Court to review an order entered in a habeas corpus proceeding. Determination of that issue is a prerequisite to our taking Jurisdiction. Supreme Court Rule 302 (a) provides:

“Appeals from final judgments of circuit courts shall be taken directly to the Supreme Court ... (3) in cases of habeas corpus.”

That rule has been most recently interpreted in Knizik v. Quick, 107 Ill App2d 88, 246 NE2d 43. (See also Ill Const art VI, § 5) and by this Court in People ex rel. Strand v. Harnetiaux, 123 Ill App2d 471, — NE2d —, filed May 25,1970.

We, therefore, conclude that this Court is without jurisdiction to hear the appeal of this Cause and transfer it to the Supreme Court pursuant to Rule 365.

Appeal transferred to the Illinois Supreme Court.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Max Coolidge, Defendant-Appellant.
    Gen. No. 69-158.
    Second District.
    June 11, 1970.
    Rehearing denied July 13, 1970.

      Paul M. King, of Chicago, for appellant.

      William V. Hopf, State’s Attorney of DuPage County, of Wheaton, and Ralph J. Gust, Jr., Assistant State’s Attorney, for appellee.
   MR. JUSTICE ABRAHAMSON

delivered the opinion of the court.

The defendant, Max Coolidge, was found guilty in a bench trial in the Circuit Court of DuPage County of reckless homicide (Count I: Ill Rev Stats 1967, c 38, § 9-3 (b)) and driving while under the influence of intoxicating liquor (Count II: Ill Rev Stats 1967, c 95½, § 144). He filed motions for a new trial or to vacate the guilty findings, and to enter a judgment of acquittal. These motions were denied and after hearings on mitigation and for probation, the court sentenced him to three years’ probation, the first six months to be served in the State Prison Farm at Vandalia.

Defendant alleges that the judgment of the trial court was based upon speculation and was against the manifest weight of the evidence, and further, that the State failed to sustain its burden of proof of a material fact as to Count I of the indictment.

On September 27, 1968, Linda Galan, age 16, after working in her aunt’s store after school, was fatally injured when defendant’s car struck her as she was walking to her home shortly after 8 p. m., proceeding west on the north side of Ogden Avenue in Downers Grove, on the right-hand side of the road.

Defendant had worked all day as a carpenter and stopped at the Lamppost Inn in Downers Grove about 5:10 that evening where he consumed approximately 51 ounces of beer, according to witnesses’ testimony. He left the tavern about 8 p. m. and drove west on Ogden Avenue, a four-lane highway with two east and two westbound lanes. According to defendant’s testimony, he entered the outside lane and remained there, traveling about 35 miles per hour. His auto struck the girl at a point just west of a Standard Oil station located at Ogden Avenue and Belle Aire Street in Downers Grove. The defendant maintained that it was dark, the lighting was poor, and he did not see the victim; that he felt the impact of hitting something and then pulled off the road onto the shoulder and drove on about 500 feet. He looked into the rearview mirror and saw a dark form lying by the highway so he put the car in reverse and backed up to within 30 to 40 feet of the form. When he got out of his car he realized that he had hit someone, whereupon he became nervous, weak and sick. He recalled people gathering and police arriving, but maintained he was not intoxicated and had no difficulty in moving about or speaking.

The State’s witness, Robert Earl, testified that he was traveling east on Ogden Avenue, in the inner lane, on that evening about 8 p. m. He was preparing to enter the Standard station for gas. The lighting was good because of the Standard Station and a Burger King on the other side of the road. About 700 to 800 feet west of the western edge of the gas station he saw defendant’s car approach, then a cloud of dust, the right fender of the car struck an object which went up and came to the ground about four or five feet from the impact. Earl testified that the right front tire of defendant’s car was off the road at that time, that defendant pulled the rest of the car off the road and stopped about 500 feet west of the impact. Earl pulled into the station and went to the girl, who was lying unconscious on the shoulder of the road. He and another person yelled to the defendant, who then backed up his car to within 15 feet of the girl. Earl said when defendant got out of his car he appeared to be intoxicated.

Police Officers Pomes, Irons, Kelley and Obert, called to the scene of the accident, stated that the lighting was good at the scene. Officer Irons arrested defendant because he exhibited signs of intoxication such as unsteady gait, halting speech and alcoholic breath. The other officers concurred in this opinion. At the police station he was given a breathalizer test. Defendant’s motion to suppress this evidence was sustained.

Witnesses for the defendant, who had been his companions at the Lamppost Inn, testified that he showed no signs of intoxication, “that he was in good condition,” as did his wife and brother who saw him at the police station after the accident.

Both State’s and defendant’s witnesses testified that debris was scattered on the highway and on the shoulder of the road. Since the girl’s body was promptly removed, only those who arrived at the scene immediately after the accident were able to testify as to the position of the body, with statements that placed it at one to four feet from the north edge of the road on the shoulder.

Defendant contends that a material allegation of the reckless homicide count was not proved beyond a reasonable doubt, namely, that he did “operate his vehicle off the paved portion of said highway while he was under the influence of intoxicating liquor,” and that the testimony concerning the lighting conditions and other features of the site did not establish proof of reckless or willful and wanton conduct. Concerning the indictment for driving under the influence of intoxicating beverage, the defendant contends that the finding of guilty was against the manifest weight of the evidence. As to defendant’s contention that it was not proved that he operated his vehicle off the paved portion of said highway, the State says that it was not a material allegation of the indictment, or if it was, then it was proved beyond a reasonable doubt. The statement is a material allegation. In The People v. Griffin, 36 Ill2d 430, 433, 223 NE2d 158, it is stated:

“Unless a defendant is advised of the particular acts relied upon to sustain a charge of reckless driving, he is not advised of the ‘nature and elements’ of the offense, and he is not afforded the full protection against double jeopardy contemplated by the constitution.”

Nevertheless, we believe that it was proved beyond a reasonable doubt that defendant drove his vehicle off the paved portion of the highway while he was under the influence of intoxicating liquor and struck Linda Galan and caused her death.

There is a definite conflict between the State’s witnesses and defendant’s witnesses as to intoxication, lighting conditions, location of debris on or off the highway, and location of the body. It seems apparent that the defendant did not see the girl before impact because he testified that he felt a thud and heard a thump and did not realize what had happened — that he had hit a person — until he got out of his car and walked back to investigate. There is no testimony in the record that the girl was on the highway when she was struck. Without going into the details of the testimony of each of the four police officers and that of the eyewitness, Robert Earl, and the testimony of each of the six defense witnesses, including the defendant himself, we concluded that the trial judge was justified in finding the defendant guilty of reckless homicide. We have the testimony of four police officers to the effect that the defendant was under the influence of an intoxicating beverage at the time of the occurrence. Robert Earl, the driver of a car going in the opposite direction, had his attention attracted by a cloud of dust just before the object was struck by defendant’s car. The main concentration of debris appeared to be on the shoulder itself and not upon the roadway, and the victim’s body was found upon the shoulder at a distance of one to four feet from the north edge of the highway. The trial judge apparently concluded from the testimony that the incident occurred in a fairly well-lighted area. Further evidence is that the defendant drove his car, without having eaten, after having consumed about 1% quarts of beer. The fact that there are inconsistencies in the testimony, or the fact that the defendant’s witnesses testified that he was not intoxicated, does not mean that the trial judge erred when he held defendant guilty of reckless homicide beyond a reasonable doubt.

A reviewing court will not reverse a judgment of conviction on the evidence unless there is reasonable and well-founded doubt as to the guilt of the accused and the judgment is palpably contrary to the weight of the evidence. People v. Barbie, 105 Ill App2d 360, 370, 244 NE2d 626. It has been said many times that where the accused is tried without a jury, it is the function of the trial court to determine the credibility of the witnesses and the weight to be accorded their testimony. Where the evidence is merely conflicting, a reviewing court will not substitute its judgment for that of the trier of the fact. The People v. Clark, 30 Ill2d 216, 219, 195 NE2d 631. Where the evidence is conflicting, but legally sufficient if the State’s witnesses are believed, the question is for the trier of fact to determine. People v. Mundorf, 97 Ill App2d 130, 138, 239 NE2d 690. This same rule applies regarding the intoxication of the accused where there is conflicting evidence. The People v. Littwin, 378 Ill 567, 571, 39 NE2d 5; People v. Miller, 101 Ill App2d 361, 365, 243 NE2d 277.

Defendant contends that his intoxication was not proven beyond a reasonable doubt because his actions after the accident were not the result of intoxication, but because of a nervous reaction to the occurrence itself, and he argues that the testimony of the officers alone is not sufficient to prove his intoxication in the absence of any corroborative evidence regarding scientific tests. The trial judge apparently did not believe, based upon all the testimony, that defendant’s actions after the accident were attributable to his nervousness rather than intoxication. In People v. Casa, 113 Ill App 2d 1, 6, 251 NE2d 290, it was held that the opinion testimony given by the arresting officer as to the intoxication of the defendant was sufficient without any supporting scientific tests being presented in evidence. Convictions for driving while under the influence of intoxicating liquor on officers’ testimony alone, without any intoxication tests being given, were also sustained in People v. Armstrong, 16 Ill App2d 365, 148 NE2d 187, and People v. Buzinski, 64 Ill App2d 194, 212 NE2d 270. From the evidence presented in this case, the trial judge did not err in finding the defendant guilty of the crime of driving while under the influence of intoxicating liquor. Such finding was not against the manifest weight of the evidence and the crime as charged was proved beyond a reasonable doubt.

The guilty findings as to both counts cannot be said to be based upon inconclusive and speculative evidence. For these reasons the judgment of the Circuit Court of DuPage County is affirmed.

Judgment affirmed.

DAVIS, P. J. and SEIDENFELD, J., concur.


author: MR. JUSTICE BURKE

text:
    Theodore G. Mitchell, Plaintiff-Appellant, v. Zoning Board of Appeals of the City of Chicago, Sidney D. Smith, Acting Commissioner of Buildings, and John P. Maloney, Zoning Administrator, Defendants-Appellees.
    Gen. No. 53,560.
    First District, Second Division.
    May 19, 1970.
    Rehearing denied June 9,1970.

      John D. Vosnos, of Chicago, for appellant.
    Raymond F. Simon, Corporation Counsel of City of Chicago, of Chicago (Marvin E. Aspen and Daniel Pascale, Assistant Corporation Counsel, of counsel), for appellees.
   MR. JUSTICE BURKE

delivered the opinion of the court.

Plaintiff filed a complaint in the circuit court for review of a determination by the Zoning Board of Appeals of the City of Chicago affirming an order of the Chica go Zoning Administrator requiring plaintiff to deconvert and discontinue use of certain units in an apartment building owned by him. The court affirmed the determination of the Zoning Board, entered judgment for defendants, and assessed costs against plaintiff who appeals.

In 1960 the owner of the property commonly known as 7002-18 North Ridge Avenue in Chicago applied for and received a permit to erect a 32-apartment building on the premises. The parcel was comprised of three recorded lots (Lots 9, 10 and 11) and the building, which was to cover all three lots, was to consist of two wings connected by a wall. One wing was to contain 16 efficiency apartments and the other was to contain 16 bedroom apartments, to comply with the zoning regulations limiting the number of efficiency apartments in any building to 50 percent.

When the building was completed, the original plans were not complied with and two separate buildings were constructed, unconnected in any manner. The building consisting of the efficiency apartments was located on Lot 11 and the building consisting of the bedroom apartments was situated on Lots 9 and 10.

In December 1963, the owner of the tract transferred title to Lots 9 and 10 to plaintiff, and retained Lot 11. It appears that the building sold to plaintiff contained not only the 16 bedroom apartments, but also contained two additional “roughed-in” bedroom units which were unfinished at the time of the sale. Plaintiff was informed by the owner that the two roughed-in apartments existed in compliance with the zoning requirements of the premises, and that plaintiff could lawfully complete the construction thereof.

Without first obtaining a building permit, plaintiff commenced the completion of the two additional apartments. Sometime thereafter a City of Chicago building inspector informed plaintiff that it was necessary to obtain a permit in order to make such structural changes on the property. Plaintiff engaged a structural engineer to draw plans for the apartments, and when the engineer sought a permit from the City to complete the construction, the permit was denied on the ground that under the original permit issued in 1960 and the zoning of the three lots at that time, the addition of two apartments would violate the density requirements applicable to the premises.

Four months after the denial of the permit, the Zoning Administrator issued an order to plaintiff to deconvert and discontinue the use of the two additional apartments. On appeal to the Zoning Board of Appeals the Administrator’s order was affirmed. Plaintiff then commenced this action in the circuit court to review the action of the Zoning Board, and the circuit court affirmed the Zoning Board and entered judgment for the defendants, from which plaintiff prosecutes this appeal.

Plaintiff first contends that the action of the Zoning Administrator was not sanctioned by the Zoning Ordinance of the City of Chicago. He argues that the building on Lots 9 and 10 sold to him, as well as the addition of the two apartments thereto, would in no way violate the density requirements of the Ordinance and that therefore the Zoning Administrator had no right to impose sanctions upon him. He further argues that the sale of the lots to him rendered the structure on Lot 11 substandard and that consequently the owner of that lot, rather than plaintiff, should be forced to bring his building into conformity with the requirements of the Ordinance.

Section 11-13-1(3) of the Illinois Municipal Code of 1961 provides that municipalities may “regulate and limit the intensity of the use of lot areas, . . . .” Ill Rev Stats 1961, c 24, par 11-13-1. That a municipality may limit the intensity of use of land has long been reeognized by the courts of this state. Exchange Nat. Bank of Chicago v. City of Chicago, 28 Ill2d 341, 192 NE2d 343; Lapkus Builders, Inc. v. City of Chicago, 30 Ill2d 304, 196 NE2d 682. The Chicago Zoning Ordinance implements the intensity limitation by means of a “zoning lot,” which is defined by the Ordinance as,

“. . . a single tract of land located within a single block, which (at the time of filing for a building permit) is designated by its owner or developer as a tract to be used, developed, or built upon as a unit, under single ownership or control. Therefore, a ‘zoning lot or lots’ may or may not coincide with a lot of record.” Municipal Code of Chicago, 1967, c 194A, § 1, Part A, Art 3.2.

Article 5.7-2 of the Ordinance further provides:

“No improved zoning lot shall hereafter be divided into two or more zoning lots and no portion of any improved zoning lot shall be sold, unless all improved zoning lots resulting from each such division or sale shall conform with all the applicable bulk regulations of the zoning district in which the property is located. . . .”

The building permit issued to the owner of Lots 9, 10 and 11 in 1960 contemplated that those three recorded lots would be utilized as a single zoning lot in the construction of the 32-unit apartment building. Although Lots 9 and 10, of themselves, could have borne an intensity of use of 18 bedroom apartment units, their status must be considered in light of the 1960 zoning of the entire parcel and the structure on Lot 11. The 1960 status cannot be changed by the unilateral action of the owner of the property as was attempted in December 1963.

The sale of the lots in 1963 clearly falls within the prohibition of Article 5.7-2 of the Chicago Zoning Ordinance. Article 5.7-2 states that “all zoning lots re-suiting from such division or sale . . shall conform to the applicable zoning regulations for the district in which the property is located; the substandard zoning lot retained by the owner was one of the zoning lots “resulting from such . . . sale.” (Emphasis supplied.) The structure on Lot 11 was dependent upon the structure on Lots 9 and 10 remaining status quo for its compliance with zoning regulations. Plaintiff was properly ordered to discontinue use of and to deconvert the two additional apartments.

Although no Illinois case has been cited or found on this point, in line with this reasoning are several cases in other jurisdictions interpreting ordinance provisions similar to the one here in question. See Chasanoff v. Silberstein, 177 NYS2d 620, affd 6 NY2d 807, 188 NYS2d 194, 159 NE2d 684; Clemons v. City of Los Angeles, 36 Cal2d 95, 222 P2d 439; Howland v. Acting Superintendent of Buildings, 328 Mass 155, 102 NE2d 423.

Plaintiff contends that the Illinois Municipal Code does not authorize municipalities to govern the division and subdivision of land.

As noted above, section 11-13-1(3) of the Municipal Code of 1961 provides that municipalities may “regulate and limit the intensity of the use of lot areas, . . . .” Article 5.7-2 of the Chicago Zoning ‘ Ordinance implements this provision by providing for the continued conformity with zoning regulations once a parcel of land has received a zoning status on an improved basis. The Ordinance consequently does not purport to govern the division and subdivision of land.

. The case of Kane v. Zoning Board, 97 RI 152, 196 A 2d 421, does not support plaintiff’s position. In the Kane case the court held that the zoning board could not deny an application for a building permit on the ground that the lot upon which the proposed building was to be constructed was created in violation of an ordinance governing the division of zoning lots; the court stated that the state zoning act did not empower the town council to enact such a provision and that although such power was granted to the town council in another state statute, the town council did not seek to act under the latter statute. Here, Article 5.7-2 was passed by the Chicago City Council pursuant to the grant of power to regulate the intensity of use of zoning areas under the Illinois Municipal Code of 1961.

Plaintiff next contends that the owner of Lot 11 should have been made a party to the proceeding before the Zoning Board of Appeals. Since the conformity of the structure on Lot 11 to zoning regulations depended upon the building on Lots 9 and 10 remaining status quo, plaintiff’s action in attempting to complete the two additional apartments upset that balance. The action was properly commenced by notice to plaintiff, the present owner of Lots 9 and 10 of the tract of land.

Plaintiff also argues that the City is estopped from enforcing the Ordinance since it issued a Certificate of Occupancy after the 1960 construction, although the buildings did not conform to the zoning requirements.

Plaintiff has not established the requisites for an estoppel against the City. Nowhere in the record does it appear that plaintiff in any way relied upon the City’s issuance of a Certificate of Occupancy, if any was in fact issued. Nor does it appear that plaintiff was in any manner induced by any City official, leading him to purchase the property and to attempt to complete the construction of the two apartments. People ex rel. American Nat. Bank & Trust Co. of Chicago v. Smith, 110 Ill App 2d 354, 249 NE2d 232. On the contrary, plaintiff himself alleged that he relied upon the representations of his grantor that it would be within the zoning requirements to complete the construction of the two apartments. It should be further noted that plaintiff testified that he completed construction of the apartments without first having secured the necessary building permit from the City to do so.

The final point raised by plaintiff is that the action taken by the zoning authorities of the City of Chicago deprives him of his property without due process of law and also denies him equal protection of the law. This position is in no manner elaborated on in plaintiff’s brief. Nevertheless, it is well established that zoning controls, as they affect property rights, are valid. Exchange Nat. Bank of Chicago v. City of Chicago, 28 Ill2d 341, 192 NE 2d 343; Reitman v. Village of River Forest, 9 Ill2d 448, 137 NE2d 801.

For these reasons the judgment is affirmed.

Judgment affirmed.

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


author: MR. PRESIDING JUSTICE DEMPSEY

text:
    Elaine Madigan, Plaintiff-Appellant, v. George Buehr and Margo Hoff Buehr, Defendants-Appellees.
    Gen. No. 53,830.
    First District, Third Division.
    May 21,1970.
    Rehearing denied June 26,1970.

      Richard E. Mansfield, Jr., of Chicago (Katz, Karacic & Mansfield, of counsel), for appellant.
    Marovitz, Powell and Pizer, of Chicago (Harold Marovitz, of counsel), for appellees.

       See Callaghan’s Illinois Digest# same topic and. section number.

   MR. PRESIDING JUSTICE DEMPSEY

delivered the opinion of the court.

The issue in this appeal is whether the beneficiary of a land trust has the right to contract for the sale of the trust property.

The plaintiff, Elaine Madigan, agreed to sell a two-apartment building to the defendants, George and Margo Buehr, for $30,000. At the time the contract was executed the real estate was in a land trust of which Mrs. Madigan was the sole beneficiary. The Buehrs deposited a $4,000 check with Mrs. Madigan’s agent as earnest money, with the written understanding that if they defaulted on the terms of the contract the money would, at the option of Mrs. Madigan, be forfeited as liquidated damages. The Buehrs defaulted; their $4,000 check was returned because of insufficient funds and Mrs. Madigan sued for damages.

In their answer to Mrs. Madigan’s complaint, the Buehrs asserted that she was not the owner of the real estate specified in the contract and was without authority to sell the property because the title was in the name of the trustee. Mrs. Madigan replied that she was the owner of the entire beneficial interest in the property and that under the terms of the trust she had the power to contract for its sale. At the trial the parties stipulated to the evidence and also stipulated that Mrs. Madigan was at all times ready, willing and able to direct the trustee to execute a deed to the Buehrs and that she would have done so but for the fact that the check deposited by them was returned for lack of sufficient funds. The trial court held for the Buehrs and dismissed the suit.

The agreement between Mrs. Madigan and the trustee contains the following pertinent provisions:

“ [T]he interest of any beneficiary hereunder shall consist solely of a power of direction to deal with the title to said real estate and to manage and control said real estate as hereinafter provided. . . .
“While [the trustee] is the sole owner of record of the real estate referred to herein, and, so far as the public is concerned, has full power to deal therewith, it is understood and agreed by the parties hereto . . . that [the trustee] will . . . convey title to said real estate, execute and deliver deeds for or otherwise deal with the title to said real estate only when authorized to do so in writing and that it will . . . on the written direction of . . . such person . . . as may be beneficiary ... at the time, make deeds for, or otherwise deal with the title to said real estate. . . .
“The beneficiary . . . hereunder shall in . . . her . . . own right have the full management of said real estate and control of the selling . . . thereof
99

The land trust, which is indigenous to Illinois, permits a trustee to hold the legal and equitable title of the trust property while the beneficiary controls its management and retains the power of direction over the trustee. The trust has been approved, and the powers of the trustee and beneficiary distinguished and their responsibilities defined, in many cases starting with Kerr v. Kotz, 218 Ill App 654 (1920). It has been uniformly held that the interest of the trustee is confined to the title and the interest of the beneficiary is personal property. In re Estate of Peters, 34 Ill2d 536, 217 NE2d 3 (1966) ; Sterling Savings & Loan Ass’n v. Schultz, 71 Ill App2d 94, 218 NE2d 53 (1966). The trustee’s power over the title is set out in the trust deed and is complete as far as the public is concerned. The power is limited, however, by the trust agreement which provides that the trustee must deal with the title as the beneficiary directs.

It has been said that only the trustee can accept an offer to purchase or contract to sell the trust property. In Marshall Savings & Loan Ass’n v. Chicago Nat. Bank, 56 Ill App2d 372, 206 NE2d 117 (1965) a family named Smith entered into a sales contract with Leonard Gervasio for the purchase of a vacant lot and a house which was to be constructed by him. The real estate was held in a land trust and Gervasio was the beneficiary of the trust. The Smiths made three payments to Gervasio totaling $3,390. Prior to its final completion, the residence was destroyed by fire. The property had been mortgaged by the trustee and the mortgagee foreclosed. The trial court ruled that the Smiths had an equitable lien for $3,390 in the real estate. On appeal the mortgagee contended that the Smiths had no right that attached to the real estate. In upholding this contention the Appellate Court noted that the Smiths had no dealings with the land trustee — only with Gervasio, the beneficiary. The court stated:

“It is well established under the Illinois law that the beneficiary of a land trust can neither contract to sell the real estate nor accept an offer to purchase it. Schneider v. Pioneer Trust & Savings Bank, 26 Ill App2d 463, 168 NE2d 808; Chicago Federal Savings & Loan Ass’n v. Cacciatore, 33 Ill App2d 131, 178 NE2d 888.”

The cases cited do not support this broad declaration of the law. Although there is language in both cases to this effect, Schneider held that a beneficiary could not accept a written purchase offer addressed to a trustee and Cacciatore held that a Federal tax lien against a beneficiary did not attach to the real estate.

Other than the Marshall case, we know of no definitive decision holding that a beneficiary cannot contract to sell the trust property. In fact, there are decisions which indicate the contrary. In Burns v. Epstein, 413 Ill 476, 109 NE2d 774 (1952), the beneficiary contracted to sell the trust property. He received a down payment of $500 but did not follow through on his commitment to sell. The purchaser filed a suit for specific performance and tendered the payment called for by the contract. The beneficiary, in moving to dismiss the complaint, urged that the contract was uncertain as to who should execute the deed. The trial court dismissed the complaint but the Supreme Court reversed, saying:

“Arguments that the contract is vague because . . . no person is named who is to execute the deed merit little attention. The seller and beneficial owner is entitled to the purchase price, and he has the obligation to convey the property or cause it to be conveyed. As title is held by the trustee, when the time for performance arrives, the deed should be executed by it.”

The case of Brannen v. LaSalle Nat. Bank, 18 Ill2d 116, 163 NE2d 476 (1959), also involved a land trust. The plaintiff, whose offer to purchase the trust property had been accepted, sued for specific performance of the real estate contract. The plaintiff’s offer had been accepted by the defendant who was the executor of the estate and the sole beneficiary. The defendant, who was also the trustee under the land trust, contended that since the acceptance was executed by it as executor and not as trustee and since it held legal title under the trust and not through the estate, it did not have power to sell. The trial court dismissed the plaintiff’s complaint and he appealed. The Supreme Court noted that the trustee in its capacity as trustee held legal title to the property, and in its capacity as executor and testamentary trustee owned the entire beneficial interest. In reversing the trial court the reviewing court stated:

“It is unreasonable to say that, with full and complete power to sell and convey the beneficial interest, the bank as executor or testamentary trustee could not direct itself as land trustee to execute the deed.”

In Burns and Brannen the purchaser was permitted to enforce a sales contract despite the fact that the seller-beneficiary did not possess title. In the instant case, the purchaser was permitted to avoid a sales contract because the seller-beneficiary did not possess title. Mrs. Madigan argues with considerable logic that if a purchaser has the right to enforce a sales contract against a beneficiary, a beneficiary should have the reciprocal right to enforce the contract against a purchaser. The beneficiary’s right to do just this was recognized in Beilin v. Krenn & Dato, 350 Ill 284, 183 NE 330 (1932). The Beilin case involved a trust very similar to an Illinois land trust. The trust agreement provided that it was the duty of the trustee to convey the whole or part of the property when ordered to do so by the agent of the beneficiaries. The agent, or the manager as he was called, contracted to sell two lots of the trust property and accepted a down payment and subsequent payments on the purchase price. The buyers sued to recover the money they had paid on the ground that the contract was void for want of a vendor. At the trial the manager tendered the trustee’s deeds to the two lots. On appeal, the buyers repeated their contention that they were not bound by the contract because the beneficiaries did not hold title to the property. The reviewing court held that the beneficiaries were the real vendors in the sales contract:

“By their contracts made through the manager they agreed ... to convey the lots in controversy to the vendees upon their complying with certain terms. It is of no consequence that the legal title was in the Chicago Title & Trust Company, as trustee. That feature was merely a part of the general plan of the trust. The agreement to convey fixed the responsibilities of the vendors.”

The general principle underlying the Beilin holding is that the validity of a sales contract is not impaired by the seller’s not having title when the contract is executed if, when the time arrives, he is able to tender the deed required by the contract. The case of White v. Bates, 234 Ill 276, 84 NE 906 (1908), illustrates this principle. An owner contracted to sell his home and to furnish the buyer a title free of encumbrance. The contract stipulated that if either party failed to comply with the provisions of the contract the defaulting party would pay the other $1,000. The home was occupied by the seller and his wife as a homestead, but she was not a party to the contract. She joined, however, in the execution of the deed and it was tendered to the buyer who refused to accept it. The seller sued for $1,000 and the buyer defended on the ground that the contract was void because it was not signed by the wife. Judgment was entered for the seller and the buyer appealed. In affirming the judgment the court stated:

“It is not essential to the validity of a contract for the sale of real estate that the grantor should have the title at the time the contract is made. It is sufficient if, when the specified time arrives, he is able to tender, and does tender, a deed as required by his contract.”

The pertinent feature distinguishing the present case from Burns, Brannen and Beilin is that in each of those cases the purchaser knew that he was dealing with the beneficiary. In Burns, the contract of sale described the seller as the beneficiary of the trust; in Brannen, the contract of sale described the seller as the executor of the beneficiary’s estate, and the purchaser knew the property was held in trust; in Beilin, the contract of sale was executed by the manager in the name of the beneficiary and the name of the trustee was disclosed in the contract. In the present case the sales contract did not disclose either that the property was held in trust or that Mrs. Madigan was the beneficiary. In the contract and in her complaint she represented herself as the owner of the property. This she was not. Although the beneficiary is the real party in interest, he is not the owner of the trust property.

There is a natural tendency to blend the power of the beneficiary with that of the trustee. The beneficiary is the person interested in the sale; he is the one who determines the price and the terms, and he is the one who most likely conducts the negotiations. But the nature of the land trust is such that, if the trust is to be preserved, the powers of the beneficiary and the trustee must be kept distinct. In negotiating for the sale of trust property, and in the contract of sale or articles of agreement, the beneficiary cannot, as this court said in Schneider v. Pioneer Trust & Savings Bank, 26 Ill App2d 463, 168 NE2d 808, deal with the property as if no trust existed.

However, in view of the Supreme Court pronouncements in the Burns, Brannen and Beilin cases it cannot be said that a beneficiary can never contract to sell the trust property. He may do so under appropriate circumstances, not because he has power to convey title or to execute a deed, or because he is the agent of the trustee or stands in its stead, but because the trust agreement gives him “control of the selling” and the right to direct the trustee to convey title to whomever he designates. Since he has the power to designate conveyance he may contract to exercise that power. If the sales contract is one in which this power is explicitly exercised, or if it is one which, because of the disclosure of the trust and the beneficiary’s status, can be construed as exercising this power, the contract is enforceable against both the beneficiary and the purchaser. To permit the beneficiary to contract in this manner does not encroach upon the jurisdiction of the trustee nor its functions; it does not infringe upon the protection afforded a purchaser who deals with the trustee, nor does it expand the beneficiary’s liability or change his status. His legal interest in the trust remains personal property; but allowing him to climax negotiations for the sale of the real estate by agreeing to have it conveyed removes some of the make-believe which hovers over land trusts and permits a realistic approach to the disposition of trust property.

Mrs. Madigan did not properly, exercise the power she possessed under the trust agreement. She did not contract to direct the trustee to convey the title and she did not contract, as the sole beneficiary, to sell the property. She contracted as the owner of the property to sell it to the Buehrs. This was beyond her power.

The judgment is affirmed.

Affirmed.

SCHWARTZ and McNAMARA, JJ., concur.


author: MR. JUSTICE McNAMARA

text:
    People of the State of Illinois, Plaintiff-Appellee, v. James Herron, Defendant-Appellant.
    Gen. No. 54,131.
    First District, Third Division.
    May 21,1970.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Theodore A. Gottfried, Norman W. Fishman, and James J. Doherty, Assistant Public Defenders, of counsel), for appellant.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago, for appellee.
   MR. JUSTICE McNAMARA

delivered the opinion of the court.

Defendant James Herron was charged with murder. After a jury trial he was found guilty and sentenced to the penitentiary for a term of twenty to thirty years. Defendant appeals, contending that he was not proved guilty beyond a reasonable doubt, and also that the trial court erred in excluding certain evidence. The facts are as follows.

The body of the deceased was found on August 31, 1967, in the weeds alongside a street near a racetrack. The police made a search of the area, but no weapons were found. After a stakeout by the police, defendant was arrested on September 9, 1967, when he entered a black 1965 Chevrolet convertible owned by deceased. Defendant told the police that he had the automobile because the owner had gone out of town and asked him to take care of it. Several days later, when confronted with a gun which the police obtained from his brother, defendant stated to the police that he lent the automobile and gun to a third party who did the shooting. Subsequently defendant made a statement to the police that it was he who shot the deceased; that the two of them were on their way to the racetrack, and deceased wished to borrow one hundred dollars. Defendant went on to say that he refused to give him the money and deceased drove into a dark, dead-end street; they started to argue and deceased took a knife from under the dashboard; that defendant then pulled out a gun, shot deceased and dragged the body into the weeds.

A friend of defendant testified for the State that on August 31, 1967, at about 10:30 p. m., defendant was driving the automobile owned by deceased, and told the witness that the automobile belonged to his wife. James Townsend, another friend of defendant, also testified for the State that on the same evening he met defendant at the races. They left the track in a 1965 black Chevrolet convertible, which defendant stated he had received from a man who had gone out of town for three weeks. During this conversation, defendant said that the owner of the auto was a homosexual. Townsend also testified that they drove to the home of defendant’s brother, and defendant asked Townsend to deliver a gun to his brother. Townsend started to comply with the request, when defendant took the gun and gave it to his brother himself. The police subsequently recovered the gun.

Defendant testified that he had known deceased for about three weeks prior to August 31, 1967. On that evening, he met deceased in a tavern, and they went in deceased’s car to the races. On the way, deceased parked the car and asked defendant for one hundred dollars, but defendant refused. Deceased then offered to engage in homosexual activities with defendant for the money, but defendant also refused that offer. Defendant further testified that he tried to get out of the car, but deceased would not allow him, stating that he needed the money badly. After a brief struggle, deceased reached under the dashboard and procured a knife. Defendant reached in his pocket and pulled out his gun. Deceased lunged at defendant, who shot him once. The knife dropped somewhere in the car. Defendant further testified that he pulled deceased from the car into the weeds, drove back to the tavern and then to the races.

Defendant’s first contention is that the State failed to prove him guilty beyond a reasonable doubt, arguing in effect that his was the only direct testimony about the shooting, and that therefore his testimony that he acted in self-defense created a reasonable doubt of his guilt.

Whether defendant was justified in using force in self-defense was a question of fact to be determined by the triers of fact from all the circumstances shown by the evidence. People v. Brumbeloe, 97 Ill App2d 370, 240 NE2d 150 (1968). And the credibility of the witnesses and the inferences to be drawn from the evidence were matters for the jury. People v. Irvin, 104 Ill App2d 316, 244 NE2d 351 (1968).

Under the Criminal Code, when the issue of self-defense is interposed by the introduction of evidence, it becomes the State’s burden to prove beyond a reasonable doubt that the act was criminal. Ill Rev Stats 1967, c 38, §§ 7-14 and 3-2. However the triers of fact were not bound to accept defendant’s exculpatory statements as true even in the absence of directly contradictory evidence by other witnesses. People v. Aarhus, 111 Ill App 2d 167, 248 NE2d 820 (1969). Where defendant’s exculpatory statements were contradicted by the facts and circumstantial evidence, the jury need not believe them, even though they were not directly contradicted by other witnesses. The People v. Warren, 33 Ill2d 168, 210 NE2d 507 (1965).

Similarly in the case at bar, the jury was justified in rejecting defendant’s exculpatory statements. After the occurrence he told-several conflicting stories. He told one friend that the automobile he was driving, which in fact was owned by deceased, belonged to his wife. He told another friend that he was taking care of the automobile for an acquaintance who was out of town. When arrested, defendant denied that he had shot deceased. He subsequently stated that a third party shot deceased. Finally when confronted with the gun recovered from his brother, he admitted to the police and testified at trial that he shot deceased, but acted in self-defense. In view of those conflicting stories and all the circumstances of the case, the jury was not required to believe that defendant had acted in self-defense. Clearly there were substantial inconsistencies between defendant’s conduct and his exculpatory statements. It should also be noted that the knife alleged to have been used by deceased in his attack on defendant was never recovered despite an extensive search by the police. The jury was justified in rejecting defendant’s testimony of self-defense, and the State sustained its burden of proving his guilt beyond a reasonable doubt.

Defendant also contends that the trial court committed reversible error in excluding certain evidence. The trial court refused to allow a Chicago Police Officer to testify for the defense that at one time in an incident unrelated to the instant crime he had arrested the deceased for engaging in a homosexual act. The defense also made an offer of proof that the police officer was familiar with the deceased’s background. Defendant maintains that since he testified that deceased had solicited him for a homosexual act, the testimony of the police officer should have been allowed into evidence.

Generally, evidence is admissible only if it is relevant and material to an issue. People v. Smith, 413 Ill 218, 108 NE2d 596 (1952). Evidence as to the violent disposition of the deceased and prior threats or misconduct by the deceased directed toward the defendant is admissible in a prosecution of the defendant for killing the deceased where defendant relies upon self-defense. People v. Davis, 29 Ill2d 127,193 NE2d 841 (1963).

Without considering whether defendant’s offer of proof was sufficient to establish that the police officer would testify as to deceased’s reputation rather than to a specific act, we find that the trial court properly excluded the proffered testimony. Defendant was not attempting to prove through the police officer either that deceased had a general reputation for violence or that the officer was aware of any misconduct by the deceased towards defendant. There was not even an attempt by defendant to establish that persons with homosexual tendencies are more violent than persons not so disposed. Additionally, according to defendant, the sole reason for the assault by the deceased was to get money from him. Defendant never stated that he was forced to resist a sexual attack by deceased, and the alleged homosexual act had no relationship to the claim of self-defense. The testimony was properly excluded.

The judgment of the Circuit Court is affirmed.

Judgment affirmed.

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


author: JUSTICE THOMAS J. MORAN

text:
    Thomas Kenney, Executor of the Last Will and Testament of Frank Pasieka, Deceased, Plaintiff-Appellee, v. Mary Pasieka, Surviving Wife of Frank Pasieka, Deceased, et al., Defendant-Appellants.
    Gen. No. 69-48.
    Third District.
    June 8,1970.
    Rehearing denied and supplemental opinion August 4,1970.

      Louis Olivero, of Peru, for appellants.
    William Twohey, Harland D. Warren and H. Robert Langer, of Ottawa, for appellee.
   JUSTICE THOMAS J. MORAN

delivered the opinion of the court.

This case involves three men with the same name— Frank Pasieka. The first is the deceased testator who lived at Tónica, Illinois, and was, in the argument before this Court, called “Tónica Frank”; the second, a nephew of the testator, who resided in Peoria and was called “Peoria Frank”; and the third, a cousin of the testator, who resided in Chicago and was called “Chicago Frank.”

Tónica Frank died on October 5, 1966, leaving a last will which was executed November 24, 1962. Tónica Frank was twice married and left surviving him his second wife. He had one child by his first marriage, Theodore Pasieka, and none by Ms second marriage. Theodore died on October 11, 1964, after the making of the will in question, but before the death of Ms father.

During his lifetime, Tónica Frank took into his home two boys, Walter and Joseph, both of whom changed their last name to his and lived with him as his sons. Walter never married and has no children. Joseph, on the other hand, is married and is the father of three children.

Tonica Frank’s will is relatively simple but the problems it creates are substantial. After providing for the payment of his debts and funeral expenses, he bequeathed all of his personal property to his second wife. He then devised all of his real estate to his son, Theodore, for life and provided that, upon the death of Theodore, the real estate would become part of the residue of his estate. The residue was then devised “one-third thereof to the children of Walter Pasieka, share and share alike; one-third thereof to the children of Joseph Pasieka, share and share alike; and one-third thereof to the children of Frank Pasieka, share and share alike.” The will then provided, “In the event any child shall not be living at the time of the death of my son, Theodore Pasieka, but shall leave brothers and sisters him surviving, said brothers and sisters shall take the share of such deceased child.”

The second wife renounced the will and the executor filed suit for a proper construction. There is no dispute as to the one-third share to the children of Joseph Pasieka. They do exist, and are entitled to that portion. The difficulty, however, arises in determining which “Frank Pasieka” the testator intended, since there were three, and what happens to the share devised to the children of Walter Pasieka, since he has no children.

The trial court, after considerable deliberation and effort, wrote a memorandum of decision which concluded that the testator meant himself when he devised a one-third share to the children of “Frank Pasieka” and, therefore, this share was to be divided equally between Joseph and Walter, and finally that the one-third share to the children of Walter did not fail but passed one-half to the children of Joseph and one-fourth each to Joseph and to Walter.

This appeal followed, raising the issues that the trial court erred in ruling that the testator meant himself and that the disposition of the one-third interest to the children of Walter was erroneous, since there were no such children.

Both the plaintiffs and the trial court agree that the will before us presents latent ambiguities. Even though the language is clear and suggests a single meaning, extrinsic facts show the clear necessity for an interpretation, Krog v. Hafka, 413 Ill 290, 295-296, 109 NE2d 213 (1952).

In construing a will, the guiding principal is the intention of the testator, O’Connell v. Gaffney, 23 Ill2d 611, 614, (1962), and the question for our determination is not what the testator meant to say by the language employed, but rather what he meant by what he did say, Barnhart v. Barnhart, 415 Ill 303, 313, 114 NE2d 378 (1953).

Therefore, in construing this will it was proper for the trial court, and it is proper for us, to consider the surrounding circumstances. The evidence presented clearly indicates that the decedent treated his own son, Theodore, and Joseph and Walter exactly the same. Joseph and Walter were never legally adopted but they were brought into the decedent’s home, they took his name and he treated them as his sons. He never indicated any desire to have one receive more than another. It was really on this basis that the trial court reached its conclusion.

While that evidence is clear, it is not very helpful in construing the decedent’s will. There, he did not treat the three boys alike because he gave his son, Theodore, all of his property for life and he gave nothing to Walter or Joseph, since the devise is to their children and not to them.

In determining who is the right “Frank Pasieka,” it appears clear to us that it cannot be Peoria Frank. Peoria Frank had not seen the decedent for twenty-eight years before his death and they had no communication.

Similarly, it would seem clear that the Frank in question cannot be Chicago Frank, because they were not close and saw each other only about once each year.

We are hard pressed to find that the decedent referred to himself, because the gift, of course, is not to himself but to his children, and he had already provided for his only natural child by giving him a life estate in all of his property.

Likewise, we cannot determine what the decedent meant by the gift to the “children” of Walter, since Walter never had and does not now have any children.

The sad thing about this case is that the decedent went to an attorney and made an attempt to write a will. Unfortunately, he did not make a will which completely disposed of his property and the only way there can be a complete disposition is for this Court to write his will for him or for the property to be administered as though the decedent had no will. While there is a presumption against intestacy and the court should make an effort to construe the will, if that is possible, this Court has no power to write a new will for a decedent if it cannot determine his intention. As our Supreme Court said in Hampton v. Dill, 354 Ill 415, 420, 188 NE 419 (1933), the testator’s “intention must be determined by the language of the will itself and not from any surmise that he used the language to express an intention or meaning he had in his mind which he failed to express. If he has overlooked a condition which he probably would have provided against had he thought of it, the court cannot guess which provision he would have made and read it into his will on the presumption that he would naturally have made such a provision if he had thought of it.”

In Moeller v. Moeller, 281 Ill 397, 117 NE 1002 (1917), the Court said, at page 399: “. . . Where a testator in disposing of his property overlooks a particular event, which, had it occurred to him, he would have in all probability provided against, the court will not supply a provision by intendment, on a presumption of what the testator would naturally have done.”

In Foss v. State Bank & Trust Co., 343 Ill 94, 175 NE 12 (1931), the Court said, at page 97: . While it is true that the presumption is always against intestacy, either in whole or in part, where a party has attempted to dispose of property by will, this is only a presumption and does not warrant this court, under the guise of construing a will, to add provisions which are offered in place of those omitted. Such presumptions cannot be indulged in either to overcome express language in a will (citation omitted) or to supply an omission made by oversight, where no language is used to show an intention on the part of testator to dispose of the property.”

We conclude that the two-thirds of the residue of the decedent’s estate which were devised to the children of “Frank Pasieka” and to the children of Walter Pasieka, go as intestate under the statute.

The parties spent a good deal of time before us arguing of the effect of the anti-lapse statute, but in view of our decision, we need not and do not reach that question.

The case is, therefore, reversed and remanded to the trial court with instructions to enter an order consistent with this opinion.

Reversed and remanded with instructions.

ABRAHAMSON and SEIDENFELB, JJ., concur.

SUPPLEMENTAL OPINION on PETITION FOR REHEARING

Our opinion stated that we need not reach the question as to the effect of the antilapse statute.

In the petition for rehearing, the plaintiff argues (among other claims) that our conclusion on this point is irreconcilable and in direct conflict with the theory and reasoning found in Schroeder v. Benz, 9 Ill2d 589, 138 NE2d 496 (1956).

The facts in the Schroeder case show that there was a donee in being at the time the will was drawn to which the antilapse statute would take effect. In the case at bar we concluded that there was, in effect, no donee to which the antilapse statute could be applied. Therefore, we affirm our original decision and deny the petition for rehearing as to this point and others raised herein.

Petition for rehearing denied.


author: RYAN, J.

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Robert L. Jones, Defendant-Appellant.
    Gen. No. 69-25.
    Third District.
    June 11,1970.

      Gerry M. Rinden, of Rock Island, for appellant.

      James N. DeWulf, State’s Attorney of Rock Island County, and Robert Schearer, of Rock Island, for appellee.
   RYAN, J.

Defendant, Robert L. Jones, was tried by a jury in the Circuit Court of Rock Island County, convicted of the crime of robbery, and sentenced to the penitentiary for a term of not less than two nor more than ten years. The crime charged is a robbery that occurred at a tavern known as Augie’s in Rock Island, Illinois, at approximately 4:45 p. m. on August 15,1968.

Testifying for the people were the tavern owner, a barmaid and three police officers. The only witnesses called for the defendant were a police officer and the sheriff. The defendant offered no evidence to controvert that of the people, elected not to testify in his own behalf, and rested his defense on three alleged procedural errors which he believes were prejudicial. They are: First, that the trial court erred in denying defendant’s motion to suppress evidence of the defendant’s identification by the barmaid immediately following his arrest, because (a) Defendant was at that time denied right to counsel; and (b) The identification procedure employed was illegal, overly suggestive and tainted the subsequent courtroom identification. Second, that the trial court erred in denying defendant’s motion for a change of venue which was based on defendant’s belief that he could not obtain a fair trial in Rock Island County due to adverse newspaper publicity. And third, that the trial court erred in not declaring a mistrial or granting the defendant a new trial when the prosecution failed to produce a written police statement for the defendant’s inspection at the exact time that he was entitled to have it.

The barmaid’s first contact with the defendant occurred when he was a patron in the tavern on the day prior to the robbery. She remembered that he drank draught beer and paid for all his drinks. On the following day, which was the day of the robbery, the barmaid was also on duty while the defendant was in the tavern for almost five hours immediately preceding the robbery. She recalled that the defendant was a white male about S', 10" tall, in his late thirties, was wearing a long sleeved shirt with the sleeves rolled up and khaki colored pants. He had light brown or blonde hair which was worn extra long, down almost to the top of his shirt collar. On the day of the robbery, she sold him draught beer and several bottles of Schlitz beer, totalling 12 to 14 drinks. She even remembered buying the defendant a drink. She noticed that the defendant used the ladies' restroom several times during the day as he wanted to use the mirror in the ladies’ restroom to comb his hair.

Just prior to the robbery, the barmaid, the defendant and two unidentified patrons were in the tavern. The two unidentified patrons left. The defendant then got up, grabbed the barmaid and told her it was an “armed robbery.” He cautioned her not to say anything; took $88 out of the cash register with his right hand and stuck the money in his pocket; shoved her backwards and ordered her to stand in the men’s toilet for ten minutes. She went into the men’s toilet; heard the front door slam; and came out. She immediately called the Rock Island Police and reported the robbery and a description of the defendant.

About 15 or 20 minutes after the robbery, the barmaid was on the telephone talking to the proprietor when two policemen entered the tavern with the defendant in custody. Before the policemen said anything, she told the policemen that that was the man who had robbed her. The policemen then asked her if she was sure and she said “yes.”

The circumstances of the defendant’s arrest were that one Pickett, an off-duty policeman, was at the police station when a call came in concerning an armed robbery at Augie’s Tavern, with a description of the robber. Pickett drove his own car towards the vicinity of Angie’s Tavern looking for a man who fit the description. He noticed the defendant standing on a street corner and observed that he fit the description. Pickett drove on past him; stopped and got out of his car and waited. Pickett was in plain clothing. When the defendant approached Pickett, Pickett pulled his gun; placed him under arrest and searched him. He removed $87 from the defendant’s pocket. Officer Pickett advised the defendant of “his rights” and then placed him in handcuffs. Two other officers arrived on the scene and removed the defendant to the scene of the robbery, where he was identified by the barmaid. At this point, only 15 or 20 minutes had elapsed since the robbery had taken place. They then took the defendant to the police station where he was booked. Defendant was not provided with nor accompanied by an attorney at the time of the face-to-face confrontation with the victim. No formal lineup was offered.

Defendant contends that the deprivation of counsel at that time, coupled with an identification procedure which he feels was illegal and overly suggestive, tainted the subsequent courtroom identification and thereby deprived the defendant of his constitutional rights. In support of this contention, defendant cites the U. S. Supreme Court cases of United States v. Wade, 388 US 218; Gilbert v. California, 388 US 263; and Stovall v. Denno, 388 US 293. The Wade and Gilbert decisions established the principle that a defendant is entitled to have counsel present at a post-indictment lineup. As the instant case involved a preindictment confrontation some 15 or 20 minutes after the arrest, the decisions in Wade and Gilbert have no application. People v. Palmer, 41 Ill2d 571, 244 NE2d 173. There remains the Stovall decision. That case established the principle that, unless extenuating circumstances exist, an unnecessarily suggestive identification procedure which is conducive to mistaken identification may be a denial of due process of law under the Federal Constitution. In the Stovall case, the Court affirmed a conviction where, on the day following a stabbing and prior to any indictment or appointment of counsel, the accused was taken individually to the victim’s hospital room for identification. The Court decided that due process of law had not been denied the defendant under the particular facts of that case and justified the procedure, because it was not known for certain that the victim would survive the incident. Our own Supreme Court had an opportunity to consider and apply the Wade, Gilbert and Stovall decisions in People v. Palmer, above cited, and in People v. Blumenshine, 42 Ill2d 508, 250 NE2d 152.

In People v. Blumenshine, our Supreme Court stated as follows:

. . Not every viewing of a suspect or suspects alone will be considered a denial of due process, for there may be justifying or saving circumstances. See, e. g., identifications upheld in: (1) Stovall v. Denno, 388 US 293, . . . , where the viewing in a hospital was ‘imperative.’ It being uncertain that the wounded victim would survive; (2) People v. Speck, 41 Ill2d 177, . . . , where a principal factor was that it was apparent that the identifying witness had an excellent opportunity to observe the defendant at the time of the crimes; (3) People v. Robinson, Ill, 250 NE2d 898, where the person identified was known to the witness prior to the crime; .(4) People v. Bey, Ill, 246 NE2d 287, where uncommon distinguishing characteristics were the principal means of identification.”

The instant case clearly fits the saving circumstances suggested in the Speck, Robinson and Bey cases. The victim here had an excellent opportunity to observe the defendant at the time of the crime and did so, in fact, for some five hours previous to the crime and on the previous day as well. The defendant could thus be said to be “known” to the victim if not by name, then at least by sight. The defendant was dressed and wore his hair distinctively, and further called attention to himself by going to the ladies’ restroom several times to use the mirror to comb his long hair.

We feel that the guidelines suggested by the three United States Supreme Court cases which were cited have not been violated in this case on this point. To hold otherwise would be to widen and extend those guidelines beyond the present state of the law.

Defendant next contends that he could not obtain a fair trial due to adverse newspaper publicity and that the trial court erred in refusing his motion for change of venue on this ground. The trial in this case commenced on January 8, 1969. Prior to that date, on December 27, 1968, an article concerning the defendant’s involvement in this robbery appeared in the Rock Island Argus, one of four newspapers in Rock Island County. The article referred to “positive identification” of the defendant at the time of his arrest; and that the defendant “matches the description” of the “bandit” sought.

A motion for change of venue on account of prejudice of the inhabitants of the county is addressed to the sound discretion of the trial court. In order to support such a motion, it is necessary that the defendant raise a reasonable apprehension that the defendant cannot receive a fair trial in the county. People v. Witte, 350 Ill 558, 188 NE 622. This issue was considered at length and well discussed by our Supreme Court in People v. Berry, 37 Ill2d 329, 226 NE2d 591, and People v. Gendron, 41 Ill2d 351, 243 NE2d 208. As was stated by the Court at page 331 in the Berry case:

. . Exposure of a crime and the background of an accused to publicity does not necessarily lead to the conclusion that all the inhabitants of a community must automatically be considered infected with prejudice toward the accused. To so state is to preclude the literate from jury service, and in turn, to put a premium on national notoriety as a means of avoiding trial anywhere.....
“. . . each case must be considered under its own facts. Obviously, this case is not in any way similar to the United States Supreme Court cases cited by defendant (Sheppard v. Maxwell, 384 US 333 „ . . and Irvin v. Dowd, 366 US 717 . . .). In those cases ‘massive, pervasive and prejudicial publicity’ saturated the community and carried over and through the trials. Aroused public passion and prejudice were clearly demonstrated and clearly evident. . .

In both the Berry and the Gendron cases the defendants received far more newspaper publicity than did the defendant in the instant case, yet the convictions were affirmed. In both of those cases, as in the instant ease, prospective jurors were examined with regard to possible prejudice and it was felt that fair and impartial jurors were selected. In the present case, 21 jurors were questioned and not one remembered hearing about the case, reading about the case, or knowing the defendant. This is not difficult to understand. Rock Island is one of our more populous counties. An uneventful robbery involving no physical injury and the theft of $88, which receives a single mention in one of four newspapers published in the county, is hardly likely to attract widespread attention or to arouse public prejudice. We believe that the trial court exercised proper discretion in this case in denying defendant’s motion for change of venue. The newspaper article cited by defendant did not raise any automatic conclusion of prejudice. Furthermore, any hint of prejudice in this regard, however strong or flimsy, was cured by the voir dire examination previously alluded to.

The third and final point to be dealt with is defendant’s contention that the trial court erred in not declaring a mistrial or granting the defendant a new trial when the prosecution failed to produce a written police statement for the defendant’s inspection at the exact time that he was entitled to it. Prior to the trial the court entered an order “. . . That the State shall furnish and have ready for inspection and provide to the attorney for the defendant at the time of trial prior statements of any witnesses who will testify and have made prior statements which have been reduced to writing, or reports, including police reports which are in the witnesses’ own words . . . .” After the direct and cross-examination of the barmaid and during the cross-examination of Officer Pickett, the defendant learned that the officer had made a written report based on a statement given- by the barmaid. Immediately upon learning of this statement, the defendant’s counsel moved for a mistrial on the grounds that the State had not produced the statement in violation of the court order previously entered. This motion was denied, as was defendant’s motion for a new trial, on the same grounds. Immediately upon the disclosure of Officer Pickett’s statement, a copy was furnished to the defendant. The barmaid was recalled and the defendant was allowed to cross-examine the witness on her statement. If any error occurred when the statement was not furnished initially, that error was cured when the statement was furnished, the witness recalled, and the defendant given the opportunity to cross-examine. The defendant has alleged prejudice but has failed to demonstrate any. The most that can be made of this point is that the ordinary order for the examination of witnesses was altered slightly by the recalling and recross-examination of a witness. However, such alterations of order occur frequently and without prejudice in many trials. Moreover, there is no showing as to what the police report contained nor was there any showing that there was anything in the police report which could be considered impeachment material. Courts of review will not reverse for harmless, technical or formal errors where substantial justice has been done. A party seeking reversal must show that the error complained of actually or presumably has worked him an injury. 3 ILP, Appeal and Error, §§ 801, 802, 804. There has been no showing of injury in this case and we can only conclude that the error complained of was either harmless or cured or both.

The judgment of the Circuit Court of Rock Island County is affirmed.

Affirmed.

STOUDER, P. J. and ALLOY, J., concur.


text:
    Lois Chapman and Donald A. Chapman, Plaintiffs-Appellants, v. Larry Huttenlocher, Defendant-Appellee.
    Gen. No. 69-195.
    Second District.
    June 12,1970.
    Rehearing denied July 13,1970.

      James L. Coburn, of Chicago, and Knight, Ingrassia & Schirger, of Rockford, for appellants.
    Bert P. Snow, of Freeport, for appellee,
   JUSTICE THOMAS J. MORAN

delivered the opinion of the court.

This is an appeal from a judgment order entered after trial upon the issues raised by a motion to dismiss the complaint pursuant to section 48 of the Civil Practice Act (Ill Rev Stats 1963, c 110, § 48(1) (e))„ The defense asserts that counts I and II of the complaint are barred by the two-year statute of limitations applicable to personal injury claims.

The cause of action in question arose on December 29, 1963. Suit was instituted on January 26, 1966 — 28 days after the two-year statute of limitations had expired. A motion to dismiss counts I and II of the complaint was filed by the defendant. Thereafter, affidavits in support of the motion were filed by two insurance representatives for the defendant’s insurer. Counteraffidavits were filed by Lois Chapman, Donald Chapman, and their attorney. On April 4, 1967, the trial court denied the motion to dismiss counts I and II, without prejudice, with the observation that a fact question was raised by the affidavits and counteraffidavits.

On July 28, 1969, the motion to dismiss counts I and II were heard before the court, all parties having waived a jury. After hearing the testimony, the court filed an order on August 1, 1969, finding that the issue in dispute was whether or not the defendant’s insurance carrier, Country Mutual Insurance Company (Company), had waived the right to plead the statute of limitations. The court found that the défense of the statute of limitations was available to the defendants and that the insurer was not estopped to assert the statute of limitations. Counts I and II were dismissed and barred from further action.

It is not necessary to detail all of the evidence presented for our determination of the case. Briefly, the auto accident in question occurred on December 29, 1963. The following day, adjuster Gaunt of the Company, spoke with the plaintiffs and the insured defendant. In June of 1964, he called upon the plaintiffs and was referred to their attorney. Thereafter he contacted the plaintiff’s attorney on a more or less two-month schedule. In February of 1965, plaintiff’s attorney, Gaunt, and Claim Supervisor Burke, met in the attorney’s office. The attorney had no medical bills or medical reports in regard to Mrs. Chapman’s claim but indicated that he intended to file suit. After some discussion, the Company made an offer of $2,000 for the bodily injury claim of Mrs. Chapman and the property damage claim of Mr. Chapman. The Company was told that the clients were to be contacted and they would be advised whether or not the $2,000 offer would be accepted. In May of 1965, the attorney contacted Gaunt and rejected the offer.

In August of 1965, Gaunt testified, he had another conversation with the attorney. The attorney indicated that the client wanted him to go ahead and start suit. The adjuster stated that if he could get the bills, medical reports and a medical examination, he would like to try and settle the case. If Mrs. Chapman agreed to the medical examination, he was to make the appointment. In November of 1965, the adjuster testified, he was told that Mrs. Chapman would not agree to a medical examination, but that the attorney would talk with her again to see if she would agree. The next contact he had with the attorney was sometime in January of 1966, after the statute had run. At that time the adjuster was living in Pekin, Illinois, having been transferred from Jo Daviess County in December of 1965.

The attorney for the Chapmans testified that on December 8,1965, he met with Gaunt in the attorney’s office and agreed that he would provide his client for a medical examination and that Gaunt was to make all of the arrangements. The adjuster was to advise the attorney of the time and date of the appointment, but he never called the attorney again.

The attorney testified that on January 12, 1966, he made a call to Gaunt’s former home in Jo Daviess County and was informed that he had been transferred to Pekin, Illinois. On that date he contacted the adjuster at his home in Pekin, and was told by the adjuster that he no longer had authority to handle the file, but referred him to the Company’s adjuster who had succeeded him in Jo Daviess County. On January 17, 1966, the attorney talked with Supervisor Burke, who advised him that the Company would not waive the statute of limitations defense. The substance of the conversation between the attorney and Burke is disputed. The attorney testified that Burke told him that the Company was no longer interested in making any appointment with the doctor to see Mrs. Chapman and that he was going to make an offer of $575 based upon the fact that there was $350 in property damage to Mr. Chapman’s automobile and an estimated $225 in medical bills which had been incurred treating Mrs. Chapman. The attorney rejected this offer, allegedly, but Burke was alleged to have told him that he would send him the papers anyway. On January 17, 1966, Burke forwarded a letter enclosing general releases for Mr. and Mrs. Chapman in the sum of $575.

Burke’s version of the January, 1966, telephone conversation was that he returned the call of the attorney, who advised him that his clients were now willing to accept the $2,000 previously offered. Burke stated that the statute of limitations had run, to which the attorney replied, “You wouldn’t hide behind the statute, would you?” Burke replied that he would, but in a spirit of compromise he would pay the property damage, upon which the statute had not run, in the amount of $350 and an estimated sum of $225 for Mrs. Chapman’s medical bills. Thereupon, the releases in the sum of $575 were forwarded to the attorney on January 17,1966.

Plaintiffs rely upon defendant’s exhibit #2 which is a memo to Burke from Gaunt, dated November 24, 1965, produced from the file of the Company, which states:

“Today I saw attorney ... in regards to Lois Chapman. He advised he has not seen her for a while, but she’s still doctoring and complaining.
“I asked him to see if she would submit to an independent medical exam by Dr. Kernwein at Rockford. He advises he would ask her and let me know. I will then make an appointment for her if she agrees to it.
“He still does not have any bills yet.
“I wonder if we would not re-contact him again, if the Statute might pass, before he would get around to filing a law suit. I believe we should wait until he contacts us.”

The exhibit was admitted into evidence and considered by the court.

Gaunt testified that he told the attorney that if they could get some medical information, this claim was one that they would try to settle. Supervisor Burke testified that at the February, 1965 meeting with the attorney, he stated the same thing in that the claim “was a case we wanted to settle.” The attorney testified that the Company representatives told him that the Company was liable for the damages caused by this accident.

The plaintiffs complain that the court erred in failing to rule that the conduct of the defendant’s insurer constituted a waiver of the two-year statute of limitations. It is contended that the conduct of the Company lulled the plaintiffs’ attorney into refraining from suit because liability was admitted, the attorney was told that the insurer wanted to settle the suit if at all possible, there were negotiations and efforts at settlement before the expiration of the statute, and because the insurance adjuster had received some medical reports from the treating physician.

It is the law of this State that the mere pendency of negotiations during a part of a period involved in the statute of limitations, conducted in good faith, with a view to a compromise, is not a waiver of the statute of limitations and would not estop a defendant from setting up such defenses. Only conduct of an insurance company which induces a plaintiff to a reasonable belief that his claim will be settled without suit, constitutes a waiver by estoppel to the raising of the defense of the statute of limitations. Kinsey v. Thompson, 44 Ill App2d 304, 307, 194 NE2d 565 (1963).

In the Kinsey case, negotiations proceeded both before and after the period of the statute of limitations had run. The court held that this act, in and of itself, was not enough to determine as a matter of law, that the defendant was estopped from asserting this statute, but that the cause should be submitted to a jury for a determination.

The recent case of Suing v. Catton, 118 Ill App2d 468, 254 NE2d 806 (1970), reaffirmed the rule that investigation of a claim and negotiations for a settlement do not amount to waiver by estoppel unless there is contained in such conduct that which is calculated to lull the claimant into a false sense of security. The court reversed the trial court’s ruling sustaining the defendant’s motion to dismiss the complaint, which was not supported by affidavits. The opinion directed that a jury should determine whether or not a waiver by estoppel had been established, which would prevent the defendant from raising the defense of the statute of limitations.

Plaintiffs also cite the case of Devlin v. Wantroba, 72 111 App2d 383, 218 NE2d 496 (1966), for the proposition that if liability is conceded and the plaintiff’s attorney is advised that the insurer wants to settle the claim and settlement negotiations are undertaken after the insurer has medical reports, the insurer cannot assert the statute of limitations. We do not understand that case or any Illinois case to set out such a specific formula. The Devlin case held that the plaintiff’s affidavits, the only affidavits filed in the case, raised no substantial question as to whether any conduct of the defendant or his insurer was calculated to lull the plaintiff into a false security, or in fact, had that effect. The affidavits were insufficient in law to raise a question of waiver or estoppel to be passed upon and therefore the judgment of the trial court granting the defendant’s motion to dismiss was affirmed.

The affidavits supporting the motion to dismiss must allege or establish facts which will authorize the court to find that the motion is well founded in fact. If a material and genuine disputed question of fact is raised, the court must decide the motion only after considering the affidavits and taking evidentiary testimony offered by the parties upon a hearing, in a non jury case. Section 48(3) of the Civil Practice Act (Ill Rev Stats 1963, c 110, § 48(3)). We know of no better method whereby the parties can fully present the issues. Sabath v. Morris Handler Co., 102 Ill App2d 218, 231, 243 NE2d 723 (1968). Where such motion is addressed to the court and a jury demand has been made, the issues should be tried and determined by a jury prior to and separate from the trial of the issues in the cause of action pleaded. Kinsey v. Thompson, supra, 308.

In the present case the motion to dismiss was tried before the court, after the parties waived their jury demand. The court heard and saw the witnesses. Upon appeal we are required to review cases not only as to the law, but also as to the facts, and it is our duty to review the evidence and to reverse the verdicts of juries or judgments of trial courts whenever we find such verdicts or judgments clearly against the manifest weight of the evidence. Manifest means: clearly evident, clear, plain, or undisputable. Elgin Lumber & Supply Co. Inc. v. Malenius, 90 Ill App2d 90, 97,232 NE2d 319 (1967).

We are unable to find in this case that the conduct of the defendant’s insurer lulled the plaintiff into a false sense of security or induced a reasonable belief that the cause would be settled and the statute of limitations not asserted. The plaintiffs claim that the memorandum makes it clear that Gaunt was hoping that plaintiff’s attorney would rely on the settlement negotiations and not file suit. This memorandum was competent evidence for the court to consider, along with all the other facts and circumstances in evidence.

When the evidence is considered as a whole, we are unable to say that the decision of the trial court was against the manifest weight of the evidence.

Judgment affirmed.

DAVIS, P. J. and SEIDENFELD, J., concur.