author: TRAPP, P. J.

text:
    Capitol Plumbing and Heating Supply Company, a Corporation, Plaintiff-Appellant, v. John A. Snyder and Doris L. Snyder, Robert Midden, d/b/a Midden Supply Co., Shaw Lumber Company, a Corporation, Security Savings & Loan Association of Decatur, Illinois, G. A. Clark, G. A. Clark Builders, Inc., a Corporation, Frank E. Nichols and Beverly Camp, d/b/a Nichols and Camp, Melvin A. Lingafelter, Edward M. Woare and Edward M. Woare, Jr., Partners d/b/a Woare Builders Supply Co., et al., Defendants, John A. Snyder and Doris L. Snyder, Verle G. Dollahan and Helen Jane Dollahan, Security Savings & Loan Association of Decatur, Illinois, G. A. C. Construction Company, Defendants-Appellees.
    Gen. No. 11,002.
    Fourth District.
    January 23, 1969.
    Rehearing denied March 12, 1969.

      Rhodes, Magill & Dehen, of Springfield (Robert Dehen, of counsel), for appellant.
    Rosenberg, Rosenberg «fe Bickes, of Decatur (David L. Johnson and J. L. Rosenberg, of counsel), and Morey <& Dunn, of Decatur (Walter Morey and John Dunn, of counsel), for appellees.
   TRAPP, P. J.

Plaintiff’s complaint in five counts asserting claims for lien and right to recover for materials furnished on a construction contract was dismissed for failure to state a cause of action. While the motions to dismiss made by various defendants assert multiple defects in the complaint, there is no indication in the record of the grounds on which the trial court sustained the motions. The question then for this court is whether any of the counts of the complaint, taking the allegations and proper inferences from them as true, state a cause of action. Substantially the same basic facts are alleged for each count and arise under the following situation.

On June 15,1965, defendants, John A. Snyder and Doris L. Snyder, as owners of real estate, entered into a contract with defendant, G. A. C. Construction Company, to construct an apartment building on the premises for the sum of $92,600 to be paid by stated completion stages. The owners authorized defendant, Security Savings and Loan Association, to make payments due under the contract after inspection to determine performance, provided that before any payments were made to the contractor, the contractor should furnish an affidavit in accordance with section 5 of the Mechanics’ Lien Act setting forth the names of parties furnishing labor and material and the amount due or to become due each. The contract also required such an affidavit from the contractor prior to final payment.

On March 1, 1966, defendants, John A. Snyder and Doris Snyder, entered into an escrow agreement with Arthur M. Wells and defendants, Verle G. Dollahan and Helen Jane Dollahan, which agreement recited that the Snyders had entered into an agreement to sell the premises to Wells and Wells had entered into an agreement to sell the premises to the Dollahans and that Wells had refused to pay the consideration until certain items of completion were performed and until all liens of record or otherwise claimed were released or otherwise satisfied. A fund was deposited with the Millikin Trust Company which was to be disbursed to Security Savings and Loan Association, as mortgagee, and for satisfaction of liens in accordance with written directions from named attorneys.

The contractor entered into a subcontract for plumbing work with Nichols and Camp, a partnership, and Nichols and Camp purchased plumbing, heating and air-conditioning materials from plaintiff, Capitol Plumbing and Heating Supply Co. These materials of the value of $4,631.86 were delivered to and used in the apartment premises between September, 1965, and November 3, 1965.

On November 3, 1965, certain materials, invoiced as sold to Nichols and Camp, in the amount of $838.93, were delivered to an agent of G. A. C. Construction Company and were paid for by said agent in exchange for a waiver of lien executed by Capitol Plumbing and Heating Supply Company. The waiver described the real estate and further provided:

“NOW THEREFORE, Know All Men By These Presents that the undersigned for and in consideration of Eight Hundred Thirty-Eight and 93/100 Dollars ($838.93), the receipt whereof is hereby acknowledged, do hereby waive and release any and all lien, or claim of right of lien on said above described building and premises under ‘An Act to Revise the Law in relation to Mechanics Liens approved May 18, 1903’ and in force July 1, 1903 and all the lien laws of the State of Illinois on account of labor or materials, or both, furnished or which may be furnished by the undersigned to or on account of said labor and for materials or both for said building or premises.
“And for above stated consideration, the undersigned further declares on oath that all laborers, material suppliers, and subcontractors, if any, used for this portion of the construction have been paid in full.”

On November 19, 1965, pursuant to two invoices showing a sale to G. A. Clark, there was delivered to defendant John A. Snyder material in the amount of $85.24 which Snyder paid for with a check drawn by Security Savings and Loan Association in exchange for a lien waiver which recited a consideration of $85.24 and contained waiver provisions similar to the one above recited.

On November 30, 1965, plaintiff served defendants John A. Snyder and Doris L. Snyder with a subcontractor’s notice of lien stating that materials in the amount of $4,631.86 had been furnished to the contractor, G-. A. Clark, through the subcontractor, Nichols and Camp, by plaintiff.

The original complaint for foreclosure of such lien was filed March 17, 1966, and was dismissed on motion for summary judgment which motion set forth the lien waivers above described.

The present second amended complaint of five counts was filed June 19,1967.

Count II seeks to make the original construction contract a third-party beneficiary contract with plaintiff as the third-party beneficiary and makes the original owners, John A. Snyder and Doris Snyder, the contractor, G. A. C. Construction Company and Security Savings and Loan Association of Decatur defendants. Security Federal Savings and Loan Association was not a party to and did not sign the construction contract.

We think it is a sufficient defense to Security Federal Savings and Loan Association that it was not a party to the contract and no facts are alleged which impose any other liability upon it.

As to the other defendants, no extended discussion is required as to Count II based upon the theory that plaintiff is a third-party beneficiary because the benefit claimed is the same benefit that would be provided by the Mechanics’ Lien Act, that is the furnishing of the affidavits required by section 5 of the Mechanics’ Lien Act. No question has been raised by any party as to service of the subcontractor’s lien notice on time. Therefore, unless the lien waivers, heretofore referred to, are effective, a proper subcontractor’s, lien would have been perfected. A waiver effective as to lien rights would be effective as to any third-party beneficiary rights which are the same rights as those conferred by the statute.

Count V specifically directs itself to moneys due under the contract from John A. Snyder and Doris L. Snyder to G. A. C. Construction Company. It makes the said original contracting parties defendants. It alleges that there is in excess of $4,631.86 “due, to become due or wrongfully paid by the owners, John A. Snyder and Doris L. Snyder to the defendant, G. A. C. Construction Company, contrary to Section 5 of Chapter 82 of the Illinois Revised Statutes of 1965.”

In its brief plaintiff contends that there is a difference between the lien upon the property and the claim upon moneys due under the contract. It is true that a lien upon the property improved and a lien upon the moneys due under the contract are separate and distinct. Section 21 of Chapter 82 gives a subcontractor a lien upon the property “and on the moneys or other considerations due or to become due from the owner under the original contract.”

The language of the lien waiver above quoted poses an extremely difficult question. Plaintiff contends that the lien waiver is confined to the property. While the language heretofore quoted can be read as a release of lien or claim of right “on said above described building” under the laws described in the release, the language releasing all lien or claim of right on said building under the Act of 1903 “and all the lien laws of the State of Illinois on account of labor or materials, or both, furnished or which ma/y be furnished by the undersigned to or on account of said labor and/or materials or both for said building and premises” (emphasis supplied) is so general and apparently all inclusive as to be deceptive if it were intended to release the real estate only and to retain a lien on funds due under the contract. In short we believe that one furnishing such a waiver would be estopped to claim wrongful payment made pursuant to the waiver.

We do not take the same view as to funds due under the contract to the contractor at the time of filing suit. Neither do we hold that there could not be additional situations creating an estoppel based upon change in reliance upon the waiver being a full waiver of all rights conferred by the Mechanics’ Lien Law.

Plaintiff’s theory in Counts I, in and IV requires that the lien waivers be set aside or ignored upon the ground of mistake, fraud or inadequate consideration.

Count IV makes the original owners, John A. Snyder and Doris L. Snyder, the contractor, G. A. C. Construction Company and the purchasers of the property, Verle G. Dollahan and Helen Jane Dollahan parties defendant and alleges as to all parties except the Dollahans that they should have known that the amount paid for the lien waivers was inadequate to support a full lien waiver.

Ignoring the extremely delicate problem of involving the purchasers without allegations which would place such knowledge in them, we believe the count is based upon a wrong principle. The Count seeks to foreclose a lien upon the property. It does not allege that there was no reliance upon the waiver by the purchaser of the property. It would necessarily be confined under the allegations to the original parties to the contract.

We think also that a lien waiver has a function distinct from that of a release. By custom it is generally intended to notify all persons interested in the premises or in moneys due under a construction contract that they may safely proceed without fear of lien claim from the particular contractor to the extent of the waiver. By its very terms a waiver which waives claims for materials which may be furnished in the future poses a possible inadequacy of consideration but it is nevertheless effective according to such terms.

In H. G. Wolff Co. v. Gwynne, 246 Ill App 86, pp 90-92, the court held that a waiver of mechanic’s lien being merely a waiver of a particular additional remedy and not a release of the underlying obligation was not within the principle that a fixed obligation could not be discharged for a lesser amount. It held that one is not entitled to repudiate a lien waiver on the ground of inadequate consideration. For similar situations see Hyde Park Inv. Co. v. Hyde Park State Bank, 257 Ill App 539, and Timber Structures, Inc. v. Chateau Royale Corp., 49 Ill App2d 343, 199 NE2d 623. Appellants cite Duncanson v. Chicago Title & Trust Co., 188 Ill App 551, as authority for the requirement of a full consideration. We think the reasoning in H. G. Wolff Co. v. Gwynne, 246 Ill App 86, at 90, is superior. Appellants also cite Olson v. Zarco Industries, Inc., 348 Ill App 124, 108 NE2d 32, wherein the release was sent on a promise to send the full amount of the bill and a lesser amount was sent, and Bain v. Globe Laundry Co., 245 Ill App 627 where the court found in effect that there were two separate contracts between the same parties and that the waiver asserted in defense was only intended for one of the contracts. The last two cases are not similar on the facts of the situation here alleged.

We hold that Count IV which is grounded upon the principle that there must be the same kind of consideration to support a waiver of mechanic’s lien that would be adequate to discharge a debt fails to state a cause of action.

Count III is directed only against John A. Snyder and Doris L. Snyder and seeks to set aside both the waiver of November 3, 1965, obtained by the agent of G. A. C. Construction Company and the waiver of November 19, 1965, obtained by defendant John A. Snyder. Since both waivers contain a waiver of lien for materials furnished or to be furnished we think that both would have to be set aside to have any material effect on the status of the lien right. Since no connection is alleged between the defendants in this count and the lien waiver of November 3, 1965, we hold that Count III fails to state a cause of action.

Count I makes the original owners, John A. Snyder and Doris L. Snyder, the purchasers, Verle G. Dollahan and Helen Jane Dollahan, the contractor G. A. C. Construction Company, and others, defendants. It seeks to set aside the lien waiver of November 3, 1965, upon the ground that an agent of defendant, G. A. C. Construction Company, while intending to make out a partial lien waiver in respect only to the materials delivered on that day, did by mistake make out a full lien waiver and the officer of plaintiff in being presented with the waiver by mistake executed it not being aware of the error and intending to execute only a partial waiver of lien. It seeks to set aside the lien waiver of November 19, 1965, upon the ground that a like situation occurred as a result of a mistake by an agent of Security Savings and Loan Association who made out the waiver.

At the outset there is no allegation which in any way involves the purchasers, Verle G. Dollahan and Helen Jane Dollahan, or other persons dealing with the property or who might rely upon the lien waivers. In Count V it is alleged that plaintiff was not aware of the language of the waivers executed or of the type of waivers signed. Such is inconsistent with a theory of mutual mistake of fact wherein the parties intend to say a certain thing but by mistake say another. Midwest Tea Packing Co. v. Currier-Lee Warehouses, Inc., 338 Ill App 663, 88 NE2d 529.

We have been furnished with a copy of the opinion in Peters v. Becklenberg, 265 Ill App 603 (abstract) which does affirm a decision of the trial court setting aside a lien waiver in a suit between contractor and owner where the evidence showed that through a mistake of the scrivener the instrument did not speak the true intent of the parties.

We think that as to third parties, specifically the purchasers, Verle G. Dollahan and Helen Jane Dollahan, and Security Savings and Loan Association it would be necessary to allege that there was no reliance or change of position based upon the lien waivers and that since plaintiff has elected to stand on its complaint no cause of action remains against such parties.

We think also that as to the defendants, G. A. C. Construction Company and the owners, John A. Snyder and Doris L. Snyder, it would be necessary, as to an allegation of rights in respect to moneys wrongfully paid, to allege that no reliance was placed upon the waivers.

If there was no affidavit given under section 5 of the Lien Act as set forth in paragraph 12 of Count V and if there was money due the contractor from the owner at the time the suit was filed, then, the fact that the waivers did not specifically extend to moneys due under the contract would appear, prima facie, to leave a lien right which has not been waived. If the whole contract price remains unpaid, plaintiff would be entitled to its share of the contract price subject to the provision that the owner should pay no more than the contract price (111 Eev Stats 1965, c 82, § 21, 2nd par). We think also that it would be a defense to the owner that the amount remaining due under the contract, if less than the contract price, is required for payment of valid liens of persons other than the general contractor.

In short we believe that a cause of action is stated in Count V as to moneys still due the contractor from the owner which are not required for valid liens of persons other than the general contractor.

For the foregoing reasons the decision of the trial court should be affirmed as to the judgment for defendants as to Counts I, II, III and IV and reversed as to Count V.

We do not reach the question as to the effectiveness of the allegations in respect to mistake in execution of the lien waivers for the reason that there are no allegations that the persons involved did not rely upon the waivers which were executed through the fault of plaintiff. Reliance would prevent a lien upon the property and upon funds paid prior to suit, which time is the first time the ineffectiveness of the lien waivers was asserted.

The cause is affirmed as to judgment on Counts I, II, III and IV, but reversed and remanded as to Count V with directions to reinstate Count V and to order the defendants John A. Snyder, Doris L. Snyder and G. A. C. Construction Company to answer.

SMITH and CRAVEN, JJ., concur.


source: Caselaw Access Project

author: CRAVEN, J.,

license: Public Domain

text:
    Paul O. Williamson, Plaintiff-Appellant, v. Joseph R. Spencer, Defendant-Appellee.
    Gen. No. 11,004.
    Fourth District.
    January 30, 1969.

      Paul J. Knapp, of Lincoln, for appellant.
    Armstrong, Winters, Prince & Tenney, of Decatur (Robert D. Winters, of counsel), for appellee.
   CRAVEN, J.,

delivered the opinion of the court.

Plaintiff instituted action to recover damages from the defendant occasioned by the alleged negligence of the defendant in the operation of an automobile. A jury trial resulted in a verdict for the defendant upon which the court entered judgment, having denied the usual post-trial motions. This appeal follows.

The two-car automobile collision that gave rise to this action occurred on Highway 66 some two miles south of Lincoln, Illinois, at a point north of an intersecting road that leads to the Lincoln State School and Farm Annex. The accident was on November 6, 1964, at approximately 12:30 a. m. The plaintiff and the defendant were both driving their automobiles in a southerly direction. Both were driving in the east or passing lane of the southbound double-laned Highway 66 that is separated from the northbound double-laned highway by a median which is approximately 40 feet wide.

The plaintiff was about to make a left turn onto the intersecting road. The defendant had just passed another vehicle which was traveling in a southerly direction in the west lane of the southbound Highway 66. The defendant thus was following the plaintiff, at a distance not clearly set forth. Weather conditions were foggy or, as the testimony indicated, “spot foggy” with areas of fog and areas free from fog.

At this time and place the plaintiff was traveling at approximately 20 to 25 miles an hour and was reducing his speed for the left-hand turn. The plaintiff’s left-turn signals were operating and indicated a left turn. The defendant was traveling at approximately 65 miles an hour. At a point some 120 yards north of the intersection defendant’s automobile struck the rear end of the automobile which the plaintiff was driving. The defendant left skid marks of some 218 feet after the impact. The plaintiff’s car came to rest on the opposite or northbound highway and across the median.

The defendant was given a citation by the Illinois State Police charging him with driving too fast for conditions. At a subsequent appearance in the circuit court of Logan County, the defendant entered a plea of guilty to the charge.

This action was for personal injuries. No issue is raised on the pleadings. The plaintiff asserts that the trial court should have entered judgment for the plaintiff notwithstanding the verdict for the defendant, or in the alternative should have granted the plaintiff a new trial because the verdict is against the manifest weight of the evidence. As we view the record before us, this is a case where all the evidence so overwhelmingly favors the plaintiff that no verdict for the defendant based on the evidence can stand.

There is no evidence of contributory negligence on the part of the plaintiff and, indeed, no assertion that there was any conduct of the plaintiff that approximated contributory negligence. On this set of facts it is our opinion that judgment on the question of liability should have been entered for the plaintiff notwithstanding the verdict. Pedrick v. Peoria & Eastern R. Co., 37 Ill2d 494, 229 NE2d 504 (1967). See also Leisenring v. E. Herlan Lumber Co., 18 Ill App2d 610, 152 NE2d 892 (3rd Dist 1958); Kocour v. Mills, 23 Ill App2d 305, 162 NE2d 497 (2nd Dist 1959).

There is much conflict in the testimony with reference to the issue of damages — conflict relating to whether the plaintiff’s alleged injuries were caused by the occurrence under review and whether existing degenerative difficulties were aggravated by the occurrence. However, there was evidence of injury. There is evidence that at the time of the occurrence the plaintiff’s right knee struck the steering column; that he received medical treatment soon after the injury; that the plaintiff lost at least two days of work immediately following the collision and suffered back or neck pains as a consequence thereof. Since in our view of this case it must be remanded for a new trial on the issue of damages only, we deem it unnecessary to discuss in detail the damage issue except to determine that the record in fact does show some damage.

A verdict by the jury of not guilty relates to the issue of liability and not to the issue of damages. A verdict of not guilty, therefore, cannot be equated with a verdict of guilty and a finding of no damages. It may be, as the appellant suggests, that having resolved the issue of liability in favor of the defendant, the jury had no occasion to consider the issue of damages. In this connection, see Flynn v. Vancil, 41 Ill2d 236, 242 NE2d 237 (1968).

The judgment of the Circuit Court of Logan County is reversed and this cause is remanded to that court with directions to enter judgment for the plaintiff on the issue of liability and for a new trial on the issue of damages only.

Reversed and remanded with directions.

TRAPP, P. J. and SMITH, J., concur.


author: JUSTICE MORAN.

text:
    In the Matter of the Estate of Richard Pickens, Also Known as Richard E. Pickens, Deceased. Frank Bonan, Individually and as Executor of the Will of Richard Pickens, Deceased, Petitioner Below, Appellee Herein, v. Curtis G. Pickens, et al., the Heirs at Law of Richard Pickens, Deceased, Respondents Below, Appellants Herein.
    Gen. No. 68-31.
    Fifth District.
    January 30, 1969.
    Hart & Hart, of Benton (Richard O. Hart, of counsel), Doskocil and Pulos, of St. Louis, Missouri, Murray and Stevens, of Centralia, Chase and Foreman, of Metropolis, and Waller, Threlkeld & Whit-low, of Paducah, Kentucky, for appellants;
    Robert S. Hill, of Hill & Hill, of Benton, and Howard W. Campbell, Jack E. Horsley, of Craig & Craig, of Mt. Vernon (Fred H. Kelly, of Mattoon, of counsel), for appellee.
   Opinion by

JUSTICE MORAN.

Not to be published in full.


author: EBERSPACHER, J.

text:
    In the Matter of the Estate of Uriah Odle Foster, Deceased. Oscar C. Smith, Administrator of the Estate of Uriah Odle Foster, Deceased, Petitioner-Appellant, v. John R. Mansell, Respondent-Appellee.
    Gen. No. 68-50.
    Fifth District.
    January 30, 1969.

      Robert S. Hill, of Benton, and Craig & Craig, of Mt. Vernon, for appellant.
    Frank H. Walker, of Mt. Vernon, for appellee.
   EBERSPACHER, J.

The Administrator of the estate of Uriah Odie Foster brought a citation proceeding under section 183 of the Probate Act for an order requiring John R. Mansell to turn over to the administrator, as property of the estate, a sum of money which had been on deposit in a bank in the name of Foster and Mansell as joint tenants. After a hearing the Circuit Court of Hamilton County found that a joint tenancy account had been created and that the money was not the property of the decedent’s estate.

Uriah Odie Foster was 86 years of age when he died intestate on May 6, 1957. He had been in the hospital for the last year and one-half prior to his death, and had been in and out of the hospital from the summer of 1954, when he had one leg amputated. After he had his leg amputated, he was continuously confined to his home or to a hospital.

John R. Mansell was the grandnephew of Foster. He was born and raised in Foster’s home by Foster and Mansell’s grandmother, Priscilla Davis, sister of Foster. Other nieces and nephews lived in the home at various times for short periods during Mansell’s youth.

Shortly after Mansell’s marriage in 1936, he moved into a smaller home on Foster’s farm and lived there until 1954 when he and his family moved back into the home with Foster. Mansell at all times worked on the farm to earn his livelihood. He received any money he needed from the farm production or oil leases, but there never was any set profit-sharing plan between him and Foster.

Following the amputation, when Foster was not in the hospital, Mansell and his wife provided every physical need, transported him to the doctor, lifted him from bed to wheelchair to toilet, took him meals and sometimes helped him to eat. It was also after the amputation that Foster allowed Mansell to handle practically all of his business affairs, to operate his farm, to pay his bills and to draw checks on his account. Mansell continued, however, to ask his uncle for advice on business matters. Both parties to this appeal agree that a fiduciary relationship was thus created.

On February 28,1956, while Foster was a patient in the hospital, a joint account card was signed by Foster and Mansell. The only evidence regarding the circumstances of the execution of this card by Foster was Mansell’s testimony that Miss Garrison, cashier of The Peoples National Bank, gave him the card which he took to Foster in the hospital and said, “Here’s what Miss Garrison sent down here for me and you to sign. This money in the bank the folks is fussing and giving us all this static about. Now, Miss Garrison sent this joint account or whatever they called it for me and you to sign. Are you going to sign it?” Foster said, “Yes, sir, I’m going so sign it.” He testified that Foster then signed the card and Mansell returned it to Miss Garrison; Mansell also testified that he obtained the joint account card at the request of Foster.

The joint account signature card was introduced into evidence by the testimony of Miss Garrison, the cashier, who verified that it came from the files of the bank. The wording above the signatures of Foster and Mansell read:

“We agree and declare that all funds now hereafter, deposited in this account are, and shall be our joint property and owned by us as joint tenants with right of survivorship, and not as tenants in common, and upon the death of either of us any balance in said account shall become the absolute property of the survivor. It is especially agreed that withdrawals of funds by the survivor shall be binding upon us and upon our heirs, next of kin, legatees, assigns and personal representatives.”

A typewritten letter from the files of the bank was also introduced by the testimony of Miss Garrison. It was on The Peoples National Bank stationery and dated February 27,1956. It read:

“Peoples National Bank, McLeansboro, Illinois
“Gentlemen:
“Please change my account to read as follows: Uriah Foster or John R. Mansell, either or the survivor of either. It is my understand (‘ing’, in handwriting) that his heading will permit John R. Mansell to sign checks against this account and in case of my death the balance of the account will be held by him.
Yours very truly,”

The letter was signed by Uriah Foster. Miss Garrison testified that she prepared the letter. She also stated that in her judgment the signature card and the letter bore the genuine signature of Uriah Foster and the card bore the genuine signature of John R. Mansell.

A joint bank account which had been opened in 1950 in the name of Uriah Foster and John R. Mansell was also introduced into evidence.

A number of witnesses who were either neighbors or business friends of Foster testified that he was not the type of man who could be dominated or influenced by Mansell and that he was of sound mental condition.

The bank account in question had a balance of $5,180.10 when it was opened on February 28, 1956. Subsequent to this date deposits in the total amount of $48,023.86 were deposited in the account. All the funds deposited were the funds of Foster but were actually deposited by either Mansell or his wife. At the time of Foster’s death on May 6, 1957, the balance in the account was $26,248.82. On July 5, 1957, this balance was transferred to Mansell’s personal account.

The question of who has the burden of proof between a decedent’s estate and the survivor of a joint tenancy account was finally settled in Murgic v. Granite City Trust & Savings Bank, 31 Ill2d 587, 591, 202 NE2d 470, 472:

“We hold that an instrument creating a joint account under the statutes presumably speaks the whole truth; and in order to go behind the terms of the agreement, the one claiming adversely thereto has the burden of establishing by clear and convincing evidence that a gift was not intended. This burden does not shift to the party claiming under the agreement.”

There is no claim here that the creation of the joint account did not comply with our statutes. Ill Rev Stats 1967, c 76, § 2. The burden of proof is therefore placed upon the appellant, the administrator.

Appellant contends that the present case is clearly within the holding of Dixon Nat. Bank v. Morris, 33 Ill2d 156, 210 NE2d 205, in which the Court found there was “no satisfactory evidence that the mother understood the characteristics of the account she was opening.” In Kirkham v. Halford, 83 Ill App2d 300, 303, 227 NE2d 527, 529, we pointed out that Dixon did not purport to change the principles laid down in Murgic, and that in Dixon the executor had sustained the burden of establishing by clear and convincing evidence that a gift had not been intended. In the case at bar there is no clear and convincing evidence which rebuts the presumption of donative intent, nor does the evidence presented indicate that Foster did not understandingly create the joint account. The only evidence offered by appellant are Foster’s old age and poor physical condition. This is not sufficient to rebut the signed signature card accompanied by the signed letter which specifically set forth the effect of the joint tenancy. None of the neighbors and business acquaintances of Foster doubted the soundness of his mind. On the contrary, one witness stated that he thought Foster was “pretty sharp” while another testified that in his opinion Foster’s mind was as good as ever. The administrator offered no such witnesses to show that Foster’s mind had become enfeebled or that he was unduly influenced. The fact that Foster and Mansell had previously had a joint account is a further indication that Foster was aware of the significance of such an account. The record thus shows that the decedent was mentally alert, that no one took advantage of him, that he was familiar with joint tenancies, and that he was fully aware of what he was doing, and the effect of the creation of the joint account.

Appellant also contends that under In re Estate of La Rue, 53 Ill App2d 467, 203 NE2d 47, that where a fiduciary relationship exists a gift is never presumed, and the burden of proof to establish the gift is on the party claiming the funds. In that case inter vivos gifts were involved and although a joint bank account was involved, the facts were that the surviving joint tenant withdrew all funds jointly held either before or on the day of the death of his mother who had deposited all the money in the joint account for her convenience. The court in La Rue pointed out that the facts showed that no executed gift of the funds could have occurred during the decedent’s lifetime by virtue of the withdrawals. The court thus never considered whether the joint tenancy created a gift which was to become effective on the mother’s death. The decision reached was based solely on a consideration of the withdrawals as inter vivos gifts. This citation proceeding is not calling for an accounting of monies of Foster which Mansell withdrew from the account during his uncle’s life but only demanding what remained in the account upon Foster’s death.

Appellant also insists that the trial court disregarded the law relating to fiduciaries as enunciated in Curtis v. Fisher, 406 Ill 102, 92 NE2d 327, wherein it was said that transactions of parties standing in a fiduciary relation are prima facie voidable on grounds of public policy, and that thus respondent herein had the burden of overcoming the presumption of fraud. There is nothing in this record that indicates that whatever influence Mansell had was abused, nor that whatever confidence was reposed in him was betrayed; nor is there any evidence that decedent was “putty in the hands” of Mansell. In that case the Court said:

“The fiduciary relationship is considered to exist and relief granted where influence has been acquired and abused, and in those cases in which confidence has been reposed and betrayed.” (Italics ours.) 406 Ill 113, 92 NE2d 332.

The facts of this case take it outside the decisions of In re Estate of La Rue, supra, and Curtis v. Fisher, supra, and keep it squarely within the rule of Murgic v. Granite City Trust & Savings Bank, supra. The mere fact that a fiduciary relationship may exist is not sufficient to rebut the presumption of donative intent inherent in joint tenancy accounts. A breach of that relationship must be shown so that it will be clear and convincing that a gift was not intended.

To hold that the existence of a fiduciary relationship changes the effect of the ruling in Murgic would be contrary to the reasoning on which that decision is based. Such a holding would promote instability rather than stability of ownership of joint tenancy accounts and would be a reversion to the confusion which existed in the law prior to Murgic. As the law presently exists, there is nothing which prevents an administrator of an estate from showing a breach of a fiduciary relationship in order to prove that a gift was. not intended by the creation of a joint tenancy account.

The trial court, after having heard the witnesses and having observed their demeanor on the witness stand, found that a gift was intended. There was before the trier of the fact ample evidence to support such finding and there was a lack of clear and convincing evidence that the account was created solely for the convenience of the decedent, or that decedent did not understand the characteristics of the account. The conclusion of the trial court based upon substantial evidence, where the trial court has an opportunity to observe the conduct of witnesses, should not be disregarded merely because the reviewing court might disagree with it, or might, as triers of facts, have come to a different conclusion. Kirkham v. Halford, supra.

We therefore affirm the judgment of the Circuit Court of Hamilton County.

Judgment affirmed.

GOLDENHERSH and MORAN, JJ., concur.


author: MR. JUSTICE ABRAHAMSON MORAN, J.,

text:
    Robert F. Poths and Ronald W. Poths, a Minor, by Robert F. Poths, His Father and Next Friend, Plaintiffs-Appellants, v. Farmers Insurance Exchange, Defendant-Appellee.
    Gen. No. 68-88.
    Second Judicial District.
    January 28, 1969.

      Dreyer, Foote and Streit, of Aurora, for appellants.
    Hinshaw, Culbertson, Moelmann and Hoban, of Chicago, for appellee.
   MR. JUSTICE ABRAHAMSON

delivered the opinion of the court.

This action was brought by the plaintiffs against the defendant insurance company under the Declaratory Judgment Act to seek a determination that the company was under a duty to defend Ronald Poths in a personal injury suit brought against him. We have earlier decided a companion case, Lumbermens Mut. Cas. Co. v. Poths, 104 Ill App2d 80, 248 NE2d 40, based on essentially the same facts. The two causes had previously been consolidated for trial and the record in the Lumbermens case has been incorporated by reference to this appeal.

The relevant facts have been discussed at length in the Lumbermens case and it is not necessary to repeat them here in detail. On April 22, 1966, Ronald Poths was involved in an automobile accident while he was driving a 1956 Chevrolet automobile. Mildred E. Maxwell and Kimberly Maxwell brought suit against Ronald Poths for injuries allegedly suffered by them as a result of the accident.

At the time of the accident, title to the automobile was in the name of Anna Susmark, the mother of Robert Susmark. Robert was a close friend of Ronald Poths. The automobile was insured under a liability policy issued to Lawrence Susmark, the husband of Anna and father of Robert. The Maxwells’ Complaint was tendered to Lumbermens under that policy and Lumbermens proceeded with the defense after making a reservation of their rights. Lumbermens then brought a declaratory judgment action against Poths and the Susmarks to seek a determination that they had no duty to defend Poths in the personal injury suit since he had no permission to use the automobile at the time of the accident. The Lumbermens policy provided coverage for the owned automobile to “any person while using the automobile . . . provided the actual use of the automobile is by the named insured or such spouse or with the permission of either.” Lumbermens filed a motion for summary judgment, supported by the depositions of Ronald Poths and the Susmarks, that was granted by the trial court.

Ronald Poths and his father, Robert Poths, had, in the meanwhile, brought this action against Farmers on a policy issued by them to Robert Poths that provided liability coverage for the insured and members of his household in the named automobile and “. . . any other automobile except one owned by or regularly and frequently used by the named insured or any member of his household except a servant.” Farmers filed its motion for summary judgment based on an exclusion clause of their policy that provided “This policy does not apply ... to any non-owned automobile arising out of its use . . . without the permission of the owner” and supported by the same affidavits and depositions filed in the Lumbermens case. The trial court granted the motion and this appeal resulted.

In the Lumbermens case, we restated the familiar rules that apply to a motion for summary judgment under section 57 of the Civil Practice Act (Ill Rev Stats 1967, c 110, par 57). A motion for summary judgment should not be granted either where there is a genuine issue as to any material fact or where fair-minded persons could draw different inferences from facts not in dispute. Ruby v. Wayman, 99 Ill App2d 146, 240 NE2d 699.

We also discussed the question of implied permission to use an automobile, particularly in light of the guidelines established in the case of Hays v. Country Mut. Ins. Co., 28 Ill2d 601, 192 NE2d 855. After we reviewed the record as a whole, we found that genuine factual issues existed both as to the actual ownership of the automobile and any express prohibition against Poths’ use of it, both crucial questions under the Hays decision. We also held that a dispute existed in regard to the prior conduct of the Susmarks in relation to the use of the automobile and the inferences that fair-minded persons could draw from that conduct. On the basis of those findings, we concluded that the motion for summary judgment should not have been granted since triable issues existed.

The only distinction between the cases, at least at this stage, is that the Lumbermens’ policy requires permission from the “named insured or such spouse” for coverage to apply whereas the Farmers’ policy would require the permission of the “owner.”

It is not clear from the record if Anna Susmark, Lawrence Susmark or Robert Susmark was the actual owner of the automobile. There is also a conflict on the issue of Ronald Poths’ permission, either implied or expressed, to use the vehicle from any of the three Susmarks. These were genuine issues of fact and should not have been summarily disposed of by the trial court.

The plaintiffs also urge that the trial court improperly denied their motion for consolidation. As we pointed out in the companion case, the consolidation of cases is a matter within the discretion of the trial court and in view of the order that the two cases be consolidated for trial, we find no abuse of that discretion.

The summary judgment in favor of Farmers is reversed and the cause remanded for further proceedings.

Reversed and remanded.

SEIDENFELD, J., concurs.

MORAN, J., dissents.

MORAN, J.,

dissenting:

I must differ with my colleagues in this case for the same reasons as stated in my dissent in the case of Lumbermens Mut. Cas. Co. v. Poths, 104 Ill App2d 80, 243 NE2d 40 (1968).


author: PRESIDING JUSTICE MORAN

text:
    People of the State of Illinois, Plaintiff-Appellant, v. Paul Hays, Defendant-Appellee.
    Gen. No. 68-98.
    Second District.
    January 29, 1969.

      William V. Hopf, State’s Attorney of DuPage County, of Wheaton, and J. Michael Fitzsimmons, Jr., Assistant State’s Attorney, for appellant.
    Max Peterson, of Sandwich, for appellee.
   PRESIDING JUSTICE MORAN

delivered the opinion of the court.

The plaintiff, State of Illinois, appeals from an order allowing a motion to suppress certain evidence.

The defendant, Paul Hays, while driving a second division vehicle (pickup truck) was stopped by an officer of the Woodridge police department for not having the name and address of the owner painted on the sides of the vehicle as provided by section 125(b) of the Uniform Act Regulating Traffic on Highways. (Ill Rev Stats 1967, c 95%, § 222(b).) The defendant posted his driver’s license with the officer instead of a cash bond. The license, on its face, seemed valid; however, after checking with the Secretary of State’s office it was discovered that the license had been suspended. Approximately 22 days after the defendant’s original arrest, the plaintiff filed a new complaint charging the defendant with driving a motor vehicle after his driver’s license was suspended which was contrary to section 6-308 (a) of the Drivers License Act (Ill Rev Stats 1967, c 95%, § 6-303(a)).

A motion to suppress any evidence that would reveal the suspension of the defendant’s driving privileges was filed, argued and allowed. It is from this order of suppression that the State appeals.

Although the defendant has failed to file answering briefs, a review of the record reveals that he relied solely upon the case of People v. Harr, 93 Ill App2d 146, 235 NE2d 1 (1968), decided by this Court, as authority for his motion in the trial court. It being his contention and assumption that the Harr case is analogous to the facts in the instant case, he therefore concludes that such evidence should be suppressed. This is not a correct assumption or conclusion. In the Harr case, the original stopping of the defendant was on suspicion with an ensuing search which disclosed an invalid driver’s license. In short, there were no grounds for the arrest of the defendant in the first instance, that is, no probable cause or specific facts that led to reasonable grounds for stopping him. Therefore the fruits of the search which ensued were held, by this Court, to be subject to a motion to suppress.

However, in the case at bar, the original arrest was valid. The vehicle which the defendant was driving did not comply with the law as required by section 125(b), supra. The defendant voluntarily deposited his driver’s license with the plaintiff instead of a cash bond, as he had a right to do. This in our opinion did not constitute a search and seizure. Thereafter, the police had every right to confirm the validity of the security left in lieu of cash.

We are of the opinion that none of the defendant’s constitutional or statutory rights were invaded or breached and the trial court misinterpreted our holding in the Harr case.

Therefore the judgment of the trial court is reversed and this cause is remanded with directions to proceed in accordance with the views expressed herein.

Reversed and remanded.

ABRAHAMSON and DAVIS, JJ., concur.


author: MR. JUSTICE SEIDENFELD

text:
    Josephine Martin, Plaintiff-Appellant, v. Po-Jo, Inc., a Corporation, Defendant-Appellee.
    Gen. No. 68-117.
    Second Judicial District.
    January 30, 1969.
    Rehearing denied March 12, 1969.

      John R. Snively, of Rockford, for appellant.
    Robert K. Clark, of Rockford, for appellee.
   MR. JUSTICE SEIDENFELD

delivered the opinion of of the court.

Plaintiff appeals from a final judgment order granting defendant’s motion to dismiss its complaint for personal injuries based on negligence. The motion to dismiss was pursuant to the material portions of 111 Rev Stats 1967, c 110, § 48.

The single issue raised is whether the pleadings disclose a material and genuine disputed question of fact.

The complaint alleges in substance that on January 8th, 1966, plaintiff entered defendant’s store to purchase foodstuffs, and while there, due to defendant’s negligence, she sustained injury to her person. A jury demand was filed. Defendant filed a motion to dismiss, alleging in substance that heretofore and prior to June 15th, 1966, the plaintiff was represented in the cause of action by a certain Rockford law firm; that on May 23rd, 1966, a member of said firm wrote to the defendant’s representative and advised that he was authorized to settle the claim of the plaintiff for the sum of $1,000; that on or about May 27th, 1966, the defendant, through its representative, settled plaintiff’s claim for that sum and submitted a release to the attorneys representing her; that on June 16th, 1966, defendant’s representative received a letter from a member of the Rockford law firm returning the release executed and witnessed by the sender and another person; that the letter further requested payment of the sum of $1,000; that the defendant, on or about June 21st, 1966, forwarded a draft in the required sum and that said draft has been presented for payment and has been paid to plaintiff and her attorneys. A copy of the full release and a copy of the settlement draft endorsed by the plaintiff, together with the affidavit of Robert J. Lester, the representative referred to in the motion, were attached. The affidavit of Lester states in substance that he personally acted as a representative for the defendant and the American Hardware Mutual Insurance Company of Minneapolis, Minnesota, in the settlement of the plaintiff’s claim; that of his own personal knowledge plaintiff retained the law firm of Pedderson, Menzimer, Conde & Stoner of Rockford to represent her interests in the matters in suit; that on May 23rd, 1966, he received a letter from attorney Harold Stern, of said firm, advising that said firm had been authorized to settle the claim of plaintiff for the sum of $1,000; that on or about May 27th, 1966, he personally settled the case with her attorneys and duly authorized agents for the sum of $1,000 and on or about said date submitted a release to attorney Stern for execution by the plaintiff; that on or about June 16th, 1966, he received a letter from attorney Pedderson, one of plaintiff’s attorneys, returning the release witnessed by him and by one Harriet E. Heath and requesting payment of the $1,000; that pursuant to said request he did, on or about June 21st, 1966, deliver the Insurance Company draft to plaintiff’s attorneys and states that said draft has been presented for payment and the sum of $1,000 has been paid to plaintiff and her attorneys; and further states that if he were called as a witness he can testify competently to all of the foregoing being based upon his personal knowledge.

Thereupon plaintiff, through the attorney on this appeal, who was also her attorney who filed the complaint on her behalf, filed a Motion to Strike the Motion to Dismiss as substantially insufficient in law. The court below denied the Motion to Strike and granted plaintiff leave to file counteraffidavits. Thereupon plaintiff filed her affidavit alleging that she is 72 years of age; that she was injured in an accident in the store of defendant on January 6, 1966; that while she was a patient in the Rockford Memorial Hospital, she was visited by one Robert J. Lester, a claim adjuster with wide experience, who talked with her relative to the accident; that she was discharged from the hospital on February 4th, 1966; that shortly thereafter the adjuster came to her home and presented a settlement draft for $500 which she refused; that at the suggestion of a neighbor she sought advice from C. A. Pedderson who came to her home, talked with her relative to the accident and her injuries, and that she told him she had a fractured hip; that Mr. Pedderson returned a second time accompanied by Harold Stern and talked with her again relative to the accident and her injuries and told her he would try to get her more money; that he wrote her on May 12th, 1966, that it looked as though the maximum that he would be able to get for her was $1,000, that he wrote her on May 24th, 1966, that he was not even sure that he could get that amount; that thereafter a purported release was submitted to her by Harold Stern which she believes was prepared by the adjuster, that he did not request her to read it, nor did he explain or read its contents, that she was ignorant of the same and of the consequences of the execution thereof, and that it appears that it was executed in the presence of certain persons whose names appear thereon, but they were not present; that she had not been discharged by her physician, and that her injuries were not stabilized and the full extent thereof could not be determined at that time; that there was a mutual mistake between her, the adjuster, the insurance company, and C. A. Pedderson, who purported to represent her, as to the nature and extent of her injuries, and that the parties, including the affiant, were not aware that her hip had been replaced with a “plastic hip”; that she was in necessitous circumstances; that she was induced to agree to accept a sum which was unconscionable in relation to the liability and gravity of her injuries, and that duress and coercion were used in the procurement of the purported release; that the consideration alone was grossly inadequate; that she did not receive any consideration for the purported release, nor did she receive the proceeds of any draft, that she has no recollection of signing any draft if any draft was in fact issued, and that she did not receive any money; that the purported release was secured by mistake, misrepresentation or fraud, and that she hereby repudiates, rescinds and cancels the same. She states that if sworn as a witness she could testify competently to all the facts. There were no exhibits attached to the counteraffidavit.

Thereupon the trial court entered the judgment order dismissing the complaint, from which this appeal has been taken, and thereafter denied plaintiff’s motion to vacate.

The principal direction of plaintiff’s argument is that the court erred in dismissing the complaint on the pleadings in that it appeared from the counteraffidavit that the purported release was secured under a mutual mistake of fact: “That at the time she executed the purported release the parties were not aware that her hip had been replaced with a plastic hip,” an allegation not refuted by the defendant. Defendant responds that the counteraffidavit shows that plaintiff knew she had a fractured hip and was under medical care for it; that she discussed the accident and injuries with her counsel; and that plaintiff has alleged conclusions rather than facts.

There are numerous cases in the State which have considered whether a release of a claim for personal injuries may be avoided on the ground that at the time it was executed the releasor was mistaken or misled as to the nature or extent of his injuries, or for fraud.

Illinois follows the majority of jurisdictions in allowing a court to set aside a release executed by a tort victim when the facts indicate that the parties were mutually mistaken as to the extent of the releasor’s injuries. The mistake must be mutual, and a unilateral or self-induced mistake of fact will be insufficient to void a release. The burden of proving that a release should be set aside rests with the party urging the invalidity of the document, and the evidence must be clear and convincing, inasmuch as the law favors corn-promise. Welsh v. Centa, 75 Ill App2d 305, 311-312, 221 NE2d 106 (1966). (Citing numerous cases.) See also 71 ALR2d 77, Annotated. A release may be avoided for fraud or fraudulent representations made by the releasee or his agent and relied upon by the releasor to his injury under the usual rules which apply to any other written instrument, but the release of personal injury should be carefully considered because mistakes are easily made and the consequences are more serious than in any other of the affairs of man. Brackeen v. Milner, 88 Ill App2d 50, 58, 59, 232 NE2d 241 (1967). In general, the modern trend of decisions is toward liberally relieving a party who has signed a release under a mistake as to the extent of his injuries, where the facts present an unconscionable result. This is due in large measure to the fact that the rescission or voidance of a release is often a form of equitable relief addressed to the chancellor in equity who is vested with that degree of discretion and flexibility necessary to the doing of justice under the circumstances of each individual case. Child v. Lincoln Enterprises, Inc., 51 Ill App2d 76, 81, 82, 200 NE2d 751 (1964).

While the majority of the cases have not been decided on pleadings, they may be so decided at that stage in a proper case. Civil Practice Act, § 48 (supra); Brackeen v. Milner (supra); Thomas v. Hollowell, 20 Ill App2d 288, 155 NE2d 827 (1959); Tidwell v. Smith, 27 Ill App2d 63, 169 NE2d 157 (1960); Welsh v. Centa (supra).

With reference to the motion to dismiss, it is clear that such motions admit facts well pleaded, but do not admit conclusions of law or conclusions of fact unsupported by allegations of specific facts upon which such conclusions rest. Triangle Sign Co. v. Randolph & State Property, Inc., 16 Ill App2d 21, 26, 27, 147 NE2d 451 (1957).

Considering the pleadings before us under the authorities, we find no error in the ruling of the trial court. The plaintiff’s counteraffidavit shows on its face that the plaintiff knew that she had a fractured hip and was under medical care for that injury. We are not persuaded by her argument that the fact that she did not know that she had what she characterized as a “plastic hip” was the statement of a material and genuine disputed fact which would prevent the decision on the motion. This related to the manner in which her known injury, that is the fractured hip, was treated, and not to the extent of her injuries under the circumstances set forth. There is no claim of any new developments or change in her condition, nor any affidavit from her attending physician, or any other physician, that the method used was not the most effective treatment for one of her age or would cause her increased complications. There are no facts to support plaintiff’s conclusion that the mistake was mutual with the insurance company and Mr. Pedderson, her attorney.

Similarly plaintiff’s statements of fraud and overreaching are unsupported by facts and are conclusions. It appears from the pleadings that plaintiff sought counsel and discussed the accident with her counsel as well as her injuries. The negotiations and final settlement were concluded on her behalf by the attorneys of her choice and she had no direct dealings with the defendant after they entered into the case, so that the record is devoid of any fact which would substantiate or in any way indicate that plaintiff acted in response to any claimed conduct of fraud and overreaching on the part of the defendant. Her statement that she did not receive the $1,000 consideration cannot be considered a material statement of fact in view of the evidence in the record that she signed the release, endorsed the draft and dealt through her attorneys with the defendant.

We, therefore, affirm.

Affirmed.

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

       “Sec. 48. Involuntary dismissal based upon certain defects or defenses. (1) Defendant may, within the time for pleading, file a motion for dismissal of the action or for other appropriate relief upon any of the following grounds. If the grounds do not appear on the face of the pleading attacked the motion shall be supported by affidavit:
      “(f) That the claim or demand set forth in the plaintiff’s pleading has been released, satisfied of record, or discharged in bankruptcy.
      “(3) If, upon the hearing of the motion, the opposite party presents affidavits or other proof denying the facts alleged or establishing facts obviating the grounds of defect, the court may hear and determine the same and may grant or deny the motion.
      “If a material and genuine disputed question of fact is raised the court may decide the motion upon the affidavits and evidence offered by the parties, or may deny the motion without prejudice to the right to raise the subject matter of the motion by answer and shall so deny it if the action is one at law and a jury demand has been filed by the opposite party in apt time.”


author: MR. JUSTICE MORAN

text:
    Richard T. Gille, Plaintiff-Appellant, v. Winnebago County Housing Authority, a Municipal Corporation, Defendant-Appellee.
    Gen. No. 68-82.
    Second District.
    January 29, 1969.

      Asher, Greenfield, Gubbins & Segall, of Chicago, for appellant.
    Reno, Zahm, Folgate and Skolrood, of Rockford, for appellee.
   MR. JUSTICE MORAN

delivered the opinion of the court.

This is an action for personal injuries suffered by the 9%-year-old plaintiff on July 14, 1953, on the premises of a housing project owned and operated by the defendant, Winnebago County Housing Authority, and formerly known as the Camp Grant Barracks. On the date of the accident the plaintiff finished supper about six o’clock and went to the home of a young friend, Douglas Almquist, who lived in the project. Master Almquist’s mother gave him paper and trash to burn. Together, the two boys went to a fifty or fifty-five gallon oil drum which had the top cut out and holes cut in the bottom and sides. Two of these drums had been provided outside of each of the 22 buildings in the housing project, having been placed there by the defendant’s employees. The side holes, cut for the purpose of creating a draft, were about eight to fourteen inches from the bottom. Holes in the bottom of the drums were intended to drain any water. Tenants burned rubbish and trash in the drums every day pursuant to the instructions of the defendant. The drums were emptied every week.

Master Almquist ignited the contents of the barrel by throwing a burning piece of paper into the container while both boys stood within a foot and a half from the drum. Plaintiff testified that flames shot out from the bottom of the barrel igniting his trousers about the knee and that, in bending over to extinguish the burning denim, the flames spread to his shirt. Plaintiff admitted that in his deposition of February 12, 1968, he had stated that he “couldn’t tell” if his pantlegs had caught on fire. Also on cross-examination, plaintiff testified that there was no drum behind his family’s residence in the project and that he had never burned papers in a barrel behind his residence, but also admitted that his deposition indicated that there had been a drum provided for their building and that he had, on occasion, burned papers in it at the request of his parents and, at least once, upon the instruction of one of defendant’s employees.

The treating physician testified that on the date of the incident he examined the plaintiff and found first, second and third degree burns on the face, including burned ears; burns on the anterior and lateral surface of the chest, along the right wrist and hand and the left wrist and hand. There were no burns on his legs, to the best recollection of the treating physician.

During the course of the trial the attorneys for both parties executed a stipulation printed by the court which provided as follows:

“When jury have agreed on and signed verdict they may deliver same to bailiff and then be excused without order of court.”
“Verdict to be later brought into Court by bailiff.” “Polling of jury waived.”
“After verdict is signed, bailiff or any juror may tell result of verdict to anyone.”

Counsel for both parties signed the stipulation which was dated February 21,1968, and filed on that date.

At the conclusion of the case the jury retired to the jury room. After their deliberation the foreman handed the sealed verdict to the bailiff and the jurors left the jury room and disbanded. When the verdict was opened it was discovered that a not-guilty finding on behalf of the defendant had been returned and was signed by the foreman only. The jury was never requested, nor did it in. fact return to the courtroom, to pronounce in open court or otherwise revise the verdict. Judgment was entered on the verdict. It is maintained that the verdict is void and ineffective because it was signed by the foreman only.

The signature of the foreman only to the verdict form, in and of itself, does not constitute reversible error. In the case of Chicago City Ry. Co. v. Cooney, 95 Ill App 471 (1900), affd 196 Ill 466, at page 476, 63 NE 1029, the court considered an argument that such a verdict was insufficient, and said:

“It is argued that the written verdict returned by the jury was insufficient, in that it was signed by the foreman only, and not by all of the jurors. There is no merit in this contention. The return by the foreman in open court, in the presence of all the jurors, was sufficient. A written verdict is not essential and a return of the verdict by the foreman ore tenus is enough. Here, the writing signed by the foreman having been announced in open court as the verdict in the presence of all the jurors, there was a sufficient return of the verdict.”

This same language was quoted with approval and as authority in the case of Patterson v. Dempsey, 2 Ill App2d 291, 119 NE2d 516 (Abst, 1954).

The verdict may also be delivered orally by the foreman in the presence of the other jurors and when so read aloud to them and assented to by them it constitutes the verdict of the jury. Catholic Order of Foresters v. Fitz, 181 Ill 206, 209, 54 NE 952 (1899).

This rule was recently recognized in the case of Scheck v. Evanston Cab Co., 93 Ill App2d 220, 236 NE2d 258 (1968) where it was stated at page 224:

“A verdict read in open court by the clerk in the presence of all the jurors is sufficient to establish validity, even though it was not signed by the jurors. Griffen v. Larned, 111 Ill 432; Mertz v. The People, 81 Ill App 576. The Civil Practice Act (Ill Rev Stats, Ch 110, Sec 68(1) (1967)) provides as follows: 'It is sufficient for the jury to pronounce their verdict by their foreman in open court, without reducing it to writing, if it is a general verdict. The clerk shall enter it in form, under the direction of the court.’ There is no question whatever that the finding of guilty and the assessment of damages was the true verdict of the jury.”

There is a substantial distinction between the right of a jury to seal their verdict and leave it with the court and the right of litigants to poll the jury. In the early case of St. Louis, V. & T. H. R. Co. v. Faitz, 19 Ill App 85 (1886) a discussion of the history of jury practices in returning a sealed verdict is found at page 88 where the Court said:

“It was formerly the practice not to allow the jury to separate until their verdict was publicly announced in open court, and to compel them to agree they were frequently deprived of the necessaries of life during their deliberations; and if, before they had agreed, it became necessary for the court to leave the town where the case was being tried, the judges were not bound to wait for them, but might carry them around the circuit in a cart, although, as Blackstone quaintly observes, they are not to be threatened or imprisoned. A much milder and more humane practice has, however, been adopted by the courts of this country. Here, it is true, we do not permit them to separate until they have agreed, but in the meantime they are furnished with all necessary refreshments, and if in civil causes they agree during a temporary adjournment of the court, they can be directed, and frequently are, to seal their verdict and return with it into open court when it again convenes. This practice is called returning a sealed verdict, . . . .”

In the case of Bond v. Wood, 69 Ill 282 (1873), it was error to discharge a jury even though counsel agreed to a sealed verdict. This is because counsel had not agreed to waive the polling of the jurors and allowing the jury to disperse after reaching its verdict. In referring to another case, the Court, at page 284, stated:

“The case of Pierce v. Hasbrock, 49 111 23, cited by counsel, is not in point. In that case the court was about to adjourn for the term, and the parties stipulated in open court the jury might seal their verdict, deposit it with the officer to be delivered to the clerk, and might separate, and need not return again to deliver their verdict. It was competent for the parties to make such an agreement, and hence there was no irregularity in the court in receiving the verdict and pronouncing judgment thereon.”

Still the Court will not reverse a verdict unless there is some merit to the defense. In the case of Wickizer-Mc-Clure Co. v. Bermingham & Seaman Co., 151 Ill App 540 (1909), the Court did not condone what took place after the jury was disbanded, nevertheless, at page 541, the Court in affirming the judgment below stated:

“. . . We disapprove of the procedure here adopted. When the jury had returned its verdict, it could have been polled, and could again have retired to reconsider it; but this could not be done after the separation and discharge from the consideration of the case. Rigg v. Cook, 4 Gilman, 336, at 346, 352. But however erroneous the action of the court was in permitting the jury to reconsider and correct the verdict rendered, after they had separated, the court will not reverse unless there are some merits to the defense. The defendant concedes that this is the correct rule.”

Similarly, in the case of Cleveland, C., C. & St. L. R. Co. v. Monaghan, 140 Ill 474, 30 NE 869 (1892), the Court after admitting that a very grave irregularity had taken place stated at page 482:

. . While we cannot approve of the course of the trial judge in permitting a juror to thus absent himself after the verdict was agreed upon and before it was returned into court and entered, yet we are not inclined to hold that there was such an abuse of the discretion which is necessarily entrusted to the trial court in circumstances like those here described, as to warrant us in setting aside the verdict.”

The right of a party to poll the jury was early recognized in Illinois in the case of Crotty v. Wyatt, 3 Ill App 388, 389 (1879):

“. . . Where matters are submitted to a jury their verdict must be returned in open court by the entire panel, and when the same is pronounced, the parties have the undoubted right to have the jurors called individually, and to inquire of each one as to whether the pronounced verdict is his verdict. This course is termed in law, polling the jury. A verdict is not final until pronounced in open court and recorded; and until this is done, either party has the right to poll the jury. It is not less so when the verdict is brought in sealed, than when verbally announced by the foreman. A direction to the jury to seal up their verdict and separate, does not dispense with their personal attendance in court when the verdict is opened, and if any of them dissent their verdict cannot be recorded.” (Citations omitted.)

See also, Commissioners of Spoon River Drain. Dist. v. Connor, 134 Ill App 434, 435-436 (1907) and Ellsworth v. Varnum, 105 Ill App 487, 490 (1903).

However, parties may agree to waive their right to poll the jury and have the verdict returned sealed. Wilcox v. International Harvester Co., 278 Ill 465, 470, 116 NE 151 (1917). Where the parties stipulate that the jury might seal their verdict and deposit it in the hands of an officer to be delivered to the clerk and that the jurors could then separate and not again return to court, it is substantially the same as delivering the verdict in open court. In Pierce v. Hasbrock, 49 Ill 23 (1868), the Court, at page 27 stated:

“The parties having agreed that the sealed verdict should be delivered to the clerk, and the jury separate, such delivery was substantially the same thing as its delivery in open court.”

In the case under consideration the parties stipulated that the jury could return a sealed verdict and, after delivering it to the bailiff “. . . then be excused without further order of court.” The polling of the jury was waived. Counsel having so agreed cannot now claim that the party is deprived of his right to poll the jury.

Applying the law above to the facts and circumstances in this case we are of the opinion that the verdict was a valid rendition of the jury’s conclusions even though signed by just the foreman.

Appellant further maintains that the court erred in failing to direct a verdict on behalf of the plaintiff at the close of all the evidence and in denying the plaintiff’s motion for judgment non obstante veredicto. There is some conflict in the testimony which gives rise to a factual dispute which was properly submitted to the jury for resolution. We are unable to say that all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors the movant that no contrary verdict based on that evidence could ever stand. Pedrick v. Peoria & Eastern R. Co., 37 Ill2d 494, 510, 229 NE2d 504 (1967).

Plaintiff further complains that the court erred in instructing the jury about the use of the verdict forms and that improper, prejudicial and inflammatory remarks were made by the defense attorney during the course of his argument to the jury. There is no record of these alleged incidents and they apparently were not taken down by the court reporter or otherwise recorded. The court will not consider such points unless the record shows the alleged error. DeBolt v. Wallace, 56 Ill App2d 380, 384, 206 NE2d 469 (1964).

The judgment of the Circuit Court of Winnebago County is affirmed.

Judgment affirmed.

DAVIS and SEIDENFELD, JJ., concur.


author: MR. JUSTICE DRUCKER McCORMICK, P. J.,

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Lloyd Bell (Impleaded), Defendant-Appellant.
    Gen. No. 51,741.
    First District, Fourth Division.
    September 11, 1968.
    Rehearing denied and supplemental opinion February 14, 1969.
    Gerald W. Getty, Public Defender of Cook County, of Chicago (James J. Doherty, and Marshall J. Hartman, Assistant Public Defenders, of counsel), and Professor James R. Thompson, Northwestern University School of Law, for appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and James B. Zagel, Assistant State’s Attorneys, of counsel), for appellant.
   MR. JUSTICE DRUCKER

delivered the opinion of the court.

After a bench trial defendant was found guilty of attempted robbery, attempted murder and aggravated battery. He was sentenced to not less than ten nor more than twenty years in the Illinois State Penitentiary for the count of attempted murder and not less than five nor more than ten years for each of the other two counts, the sentences to run concurrently. On appeal his sole contention is that he did not knowingly and understandingly waive a jury trial.

Illinois has codified the constitutional right to a jury trial and the conditions under which it can be waived, providing in the Criminal Code that:

Every person accused of an offense shall have the right to a trial by jury unless understandingly waived by defendant in open court. (Ill Rev Stats, c 38, § 103-6 (1965).)

It is the duty of the trial judge to see that a jury waiver is understandingly made. Whether such a waiver has been understandingly made rests on the peculiar facts of each case and cannot be governed by any precise formula. People v. Wesley, 30 Ill2d 131, 195 NE2d 708.

At the trial the following colloquy took place:

“The Court: All right. And then we can proceed to trial with Bell.
“Will this be a bench ?
“Mr. Fishman (defendant’s attorney) : Yes, Your Honor, the defense, the defendant is ready for trial.
“The Court: The State is ready?
“Mr. Moran (Assistant State’s Attorney): The State is ready, yes.
“Mr. Fishman: This is a jury waiver.
“Do you know what a jury is ?
“Defendant Bell: A what?
“Mr. Fishman: A jury trial is ?
“And you don’t want a jury trial, is that right?
“DefendantBell: No.
“Mr. Fishman: Sign that.
“The Court: All right, this document you have signed, you know this is a waiver of a jury ?
“Defendant Bell: Yes.
“The Court: All right, you have signed it.”

Defendant contends that he was not adequately apprised of his right to a jury with the result that he did not understandingly waive such right, citing People v. Turner, 80 Ill App2d 146, 225 NE2d 65.

The State argues that the instant case is controlled by People v. Palmer, 27 Ill2d 311, 189 NE2d 265, where the court found that the jury was properly waived. However, there the defendant confirmed in the presence of the judge that his attorney had explained the meaning of his right to a jury trial to him and the judge himself then gave him a brief explanation. The State also cites People v. Richardson, 32 Ill2d 497, 207 NE2d 453. In that case the court pointed out that there had been an opportunity for defendant’s attorney to consult with defendant concerning a jury waiver during a short break in the proceedings. In the instant case there was no pause for the explanation of a jury trial. Moreover, defendant never manifested an understanding of the nature of a jury trial. His only response when questioned about this was “A what?” Nor are we apprised of any other indication that defendant knew or was then informed of the meaning or consequences of a jury waiver. We believe that under these circumstances defendant’s waiver was not understandingly made and that this case should be reversed and remanded for a new trial.

Reversed and remanded.

MCCORMICK, P. J. and ENGLISH, J., concur.

SUPPLEMENTAL OPINION

In its petition for rehearing appellee reargues his position that the jury waiver in the instant ease was proper. In People v. Surgeon, 15 Ill2d 236, 154 NE2d 253 the Supreme Court stated:

The trial court is charged with the duty to see that the election of an accused to forego a trial by jury is both expressly and understandingly made. That duty cannot be perfunctorily discharged. [Emphasis added.] (People v. Fisher, 340 Ill 250.)

This principle has been reaffirmed in People v. Wesley, 30 Ill2d 131, 195 NE2d 708, People v. Clark, 30 Ill2d 216, 195 NE2d 631, and People v. Richardson, 32 Ill2d 497, 207 NE2d 453. Section 103-6 of the Code of Criminal Procedure (Ill Rev Stats, c 38, § 103-6 (1963)) for the first time added the word “understandingly” into the provision concerning jury waivers.

It takes but a few moments of a trial judge’s time to directly elicit from a defendant a response indicating that he understands that he is entitled to a jury trial, that he understands what a jury trial is, and whether or not he wishes to be tried by a jury or by the court without a jury. This simple procedure incorporated in the record will reduce the countless contentions raised in the reviewing courts about jury waivers.

Appellee relies on People v. Brokowski, 25 Ill2d 497, 185 NE2d 241. In that case defendants urged that the failure of the record to show any arraignment, plea or jury waiver required a reversal of the conviction. The court held at page 500:

The defendants were represented by counsel and proceeded to trial without objection. The only reasonable inference from the record is that the case was tried upon the assumption that the defendants had pleaded not guilty and had waived their right to a jury trial.

However in that case the court also said:

In their argument, however, defendants do not deal with the effect of the failure of the record to show a jury waiver, and, therefore, this point has been waived, except insofar as it is inseparable with the failure to show a plea.

Appellee has also cited as an additional authority the recent case of People v. Novotny, 41 Ill2d 401, 244 NE2d 182. In that case defendant’s counsel in the presence of the defendant waived a jury trial after the State’s Attorney reduced the charge from a felony to a misdemeanor. The Supreme Court held that a defendant need not necessarily announce his waiver of a jury personally since the defendant speaks and acts through his attorney. However, the court then stated:

It is not necessary for us, however, to expressly hold in this case that the silent acquiescence of the defendant during the oral announcement by this attorney that a jury trial was waived was sufficient ratification of his attorney’s act to effectively bind defendant to the consequences of that act. There is the additional unique factor that the jury waiver was the quid pro quo for the reduction of the seriousness of the charge. At the time that defense counsel acted on behalf of his client to waive a jury trial, he was pursuing a strategy by which the defendant gained the distinct and critical advantage of having the charge against him reduced substantially.

We do not believe that Novotny should change our determination in the instant case. Defense counsel was seeking an expression from the defendant about his waiver of a jury trial. Defendant’s questioning answer should have alerted the trial court to the need of an explanation of what a jury trial was and of his entitlement to a jury trial so that defendant could understandingly decide whether or not he wished to waive a jury trial.

Appellee suggests that if there is any question about the waiver we should remand only for the limited purpose of having a hearing to determine whether the defendant knowingly and understandingly waived his right to a jury trial. He argues that in many cases where confessions were admitted without a hearing on the voluntariness of the confession the courts have remanded for the limited purpose of conducting a hearing to determine the voluntariness of the confession. In the instant case there was a hearing concerning the jury waiver. The fact that it was not as comprehensive as it should have been does not warrant a new hearing thereon.

The petition for rehearing is denied.

ENGLISH, J., concurs.

McCORMICK, P. J.,

dissenting:

I must dissent from the conclusion of the majority that the petition for rehearing should not be granted.

In the original opinion a colloquy before the court was cited in which the defendant was presented with a jury waiver and informed concerning it by his attorney. The defendant was then asked if he knew what a jury is, and he asked “A what?” His attorney said, “A jury trial is?” and repeated the question. No answer appears in the record, but immediately after that the defendant’s attorney said, “And you don’t want a jury trial, is that right?” The defendant said no, and signed the waiver. The colloquy continued as follows: The Court: “All right, this document you have signed, you know this is a waiver of a jury?” Defendant Bell: “Yes.” The Court: “All right, you have signed it.” The implication is that the defendant nodded in response to the question with reference to his knowledge of what a jury or a jury trial was.

In its petition for rehearing the State argues that the cause should be remanded only to determine whether or not the defendant understandingly waived his right to a jury trial. In the supplemental opinion the court takes the view that the fact that the jury waiver hearing was not as comprehensive as it should have been does not warrant a new hearing. The point is whether or not the defendant responded affirmatively to the question asked him by his attorney. That cannot be determined from the record, and for that reason I feel this court should remand the case to the trial court for a rehearing on the question of whether the jury waiver was intelligently and properly made. In the instant case there is no question that if the jury was properly waived the defendant was convicted beyond a reasonable doubt.

In People v. Richardson, 32 Ill2d 497, 207 NE2d 453, the Supreme Court said at page 499:

“Whether a jury waiver has been knowingly and understandingly made depends upon the facts and circumstances of each case, and there can be no precise formula for determining whether a waiver is understandingly made. . . . Merely because the court did not at length discuss the consequences of the jury waiver does not necessarily require a holding that the waiver was not understandingly made. . . . [W] e believe that this record indicates that defendant understanding^ waived his right to trial by jury.”

In the supplemental opinion the court has cited and quoted from People v. Novotny, 41 Ill2d 401 244 NE2d 182. Following the quotation cited in the opinion, the court in Novotny further said:

“ Tt is settled law that when an accused is present in court and represented by competent counsel, he is bound by the actions and concessions of counsel, and that even constitutional rights may be waived in the course of a trial.’ [Citing numerous cases.]”

The writer of this dissent believes that the rights of the People must be considered equally with the rights of the defendant in a criminal case. The cause should be remanded for a determination of whether the defendant knowingly waived his right to a jury trial. If it is so determined, a new judgment of conviction should be entered. If it is determined that he did not knowingly waive his right, then a new trial should be ordered.

       For the first time appellee apprises us in his petition for rehearing that in the hearing on mitigation and aggravation it was ascertained that defendant had prior experience in the courts, e. g., a ninety-day sentence in 1964 and a ninety-day sentence in 1965. We cannot say that this experience necessarily shows that defendant had knowledge of his right to a trial by jury or that the trial judge at the pretrial stage, without information of this record, could determine defendant’s knowledge or understanding except by what transpired before him at that time.


author: MR. JUSTICE MCNAMARA

text:
    People of the State of Illinois, Plaintiff-Appellant, v. Irwinna Weinstein, Defendant-Appellee.
    Gen. No. 52,656.
    First District, Second Division.
    December 30, 1968.

      John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Daniel Weil, Assistant State’s Attorneys, of counsel), for appellant.
    Frank G. Whalen, of Chicago, for appellee.
   MR. JUSTICE MCNAMARA

delivered the opinion of the court.

The defendant, Irwinna Weinstein, was indicted for the murder of her husband, Harvey Weinstein. The defendant made a motion to suppress certain physical evidence on the ground that this evidence was obtained as a result of illegal search and seizure. The court granted defendant’s motion to suppress this evidence, and the State appeals from that order. The State contends that the searches and seizures were valid, and that the court erred in allowing the motion to suppress. The State is also appealing an order which suppressed certain statements made by defendant to the police. For our opinion concerning that appeal, see People v. Weinstein, — Ill App2d —, — NE2d —, 1968.

Defendant was previously convicted for the murder of her husband. This court affirmed the conviction, People v. Weinstein, 66 Ill App2d 78, 213 NE2d 115 (1965), but the Supreme Court reversed the judgment of conviction and remanded the cause for a new trial. People v. Weinstein, 35 Ill2d 467, 220 NE2d 432 (1966). After the State’s motion to reinstate the cause was granted, the following facts were elicited at the hearing on defendant’s motion to suppress certain physical evidence. Lieutenant John Cartan of the Chicago Police Department took Irwinna Weinstein into custody on September 30, 1963. She was questioned and released later that evening. She was arrested on October 4 and remained in custody until released on bond October 8. On October 5, while defendant was in custody, Commander Francis Flanagan, Lieutenant Cartan and another police officer went to the Weinstein premises located at 9716 South Van Ylissingen Street, Chicago. Defendant and the deceased owned these premises in joint tenancy and resided there with two minor children. At the home, the officers were admitted to the premises by Meyer Weinstein, father of the victim and father-in-law of the defendant. On that visit the officers removed a bottle of bleach and a dog’s brush.

On October 7, letters of administration were issued by the Probate Court of Cook County appointing Meyer Weinstein administrator of the estate of Harvey Weinstein. On the same date an order was entered by the Probate judge which barred the defendant and her family and representatives from entering the Weinstein home without the approval of the administrator, and which also ordered defendant and her family to turn over the keys to the home to the administrator.

On the same day, October 7, Meyer Weinstein again met Lieutenant Cartan at the premises, showed him the orders of the Probate Court and said that he would leave the key with a neighbor so that the police could enter the home whenever they wished. On October 7, Lieutenant Cartan removed two children’s books, two dolls, a man’s shirt and a towel. On three subsequent visits, he removed a bottle of gin, a sponge, a scrub brush, a polish applier, a broom, a rubber pad, a pink throw rug (taken from a storage room attached to the house), a section of the living room carpet and finally a certain musical instrument. The police did not have defendant’s permission to enter the home at any time, nor did they ever obtain a search warrant.

Meyer Weinstein testified that he always had a key to the home prior to his son’s death. He further testified that defendant or her parents changed the locks to the home on September 30, but that after he was appointed administrator, he again changed the locks. He testified that he did not give notice to the defendant of the probate proceedings because he did not know where she was. He also stated that he obtained the order from the Probate Court because personal property was being taken from the home. He believed that the court order gave him the authority to authorize a search of the premises.

Defendant testified that she saw Meyer Weinstein on October 4 when he served her with a document pertaining to her two children. She was taken into custody on that day and released on bond on October 8, but could not enter her home because the locks were changed.

The State contends that Meyer Weinstein had the authority to lawfully consent to a search of the premises: first, because of his familial relationship and possession of a house key prior to his son’s death; and secondly, because by order of the Probate Court he was administrator of the estate of Harvey Weinstein and was given supervisory control of the Weinstein home.

At the trial court, before any evidence was heard on the motion to suppress the evidence, the State announced that it would not introduce into evidence at trial articles taken from defendant’s home on October 5. The following colloquy then occurred:

THE COURT: “The State is in effect conceding anything on the 5th should not be received in evidence and the petitioner’s position is well taken as to that evidence.”
STATE’S ATTORNEY: “Yes.”

Despite that statement to the trial court, the State now argues that the search made by the police on October 5 and the subsequent searches were lawful because Meyer Weinstein by virtue of his familial relationship and possession of the house key had the authority to consent to the search.

The Illinois courts in the past several years have ruled on the issue of who, other than a defendant, may lawfully consent to a search and seizure. In People v. Shambley, 4 Ill2d 38, 122 NE2d 172 (1954), the defendant was convicted of assaulting his wife with a gun. The defendant lived with his wife, who consented to a search by the police and seizure of the gun by which she was assaulted. The court held at page 42 that “. . . Where two persons have equal rights to the use or occupation of premises, either may give consent to a search and the evidence thus disclosed can be used against either.” In that case, the wife “. . . was not acting as agent for her husband but was acting in her own right as occupant of the premises.” At page 43. See People v. Perroni, 14 Ill2d 581, 153 NE2d 578 (1958); People v. Speice, 23 Ill2d 40, 177 NE2d 233 (1961). In People v. Palmer, 26 Ill2d 464, 187 NE2d 236 (1962), the court held that the consent of the defendant’s tenant will validate a search of the common rooms of defendant’s house. In People v. Walker, 34 Ill2d 23, 213 NE2d 552 (1966), defendant lived with his mother and sister. The police searched his home after getting the sister’s consent, and the court upheld the search since the sister had equal rights to the use and possession of the premises.

In People v. Voleta, 57 Ill App2d 279, 206 NE2d 737 (1965), defendant frequently stayed at his brother’s apartment, The brother consented to a search of his apartment, and the court upheld the validity of that consent. However, in People v. Rodriquez, 79 Ill App2d 26, 223 NE2d 414 (1967), the court held that the consent of an 18-year-old girl friend who stayed in defendant’s room was insufficient, since the girl’s child and clothes were at her mother’s home, and she did not pay any portion of defendant’s rent.

From the above cases, the rule is well established in Illinois, that where two persons have equal rights to the use or occupation of the premises, either may consent to a search and the evidence so disclosed may be used against either. It is clear in the instant case that Meyer Weinstein did not have equal rights to the use or occupation of the premises. He did not reside there, and possession of the house key gave him no right of occupancy.

The State next contends that Meyer Weinstein’s appointment as administrator of the estate along with the order barring defendant and her representatives from the home authorized him to consent to the search of the premises.

The Illinois Probate Act provides in part as follows:

“The executor or administrator shall not take possession of real estate or the portion thereof occupied by the heir or devisee thereof as his residence unless otherwise provided by the decedent’s will or unless the court at any time finds that possession is necessary for the payment of claims, expenses of administration, estate or inheritance taxes or legacies, the preservation of the real estate, or any part thereof, or the proper distribution of the estate.” (Ill Rev Stats 1965, c 3, § 219a (2).)

Letters of administration authorized the administrator to sue for and collect the personal estate and debts to the decedent. Our courts have consistently held that the administrator of an estate takes no title or interest in the real estate of the decedent, except a naked power to sell the same if the personal assets are insufficient to pay the debts of the estate. Noe v. Moutray, 170 Ill 169, 48 NE 709 (1897); In re Estate of English, 24 Ill2d 357, 181 NE2d 111 (1962). Such a naked power did not give the administrator in the instant case the authority to legally consent to a search of the premises. Nor did the order of the Probate Court without notice obtained for the purpose of halting any dissipation of the personal estate confer any authority on the administrator to consent to a waiver of a constitutional right to what otherwise would be an unreasonable search.

The State cites Bradley v. Fox, 7 Ill2d 106, 129 NE2d 699 (1955), in support of its proposition that the administrator had the authority to permit a search. But in the Bradley ease, a civil proceeding, the court held that a person who is convicted of the murder of another shall not inherit from the murdered person or acquire as surviving spouse any interest in the estate of the decedent by virtue of his death. See also Ill Rev Stats 1965, c 3 § 15a. The Bradley case, however, deals with ownership of property rather than the authority to consent to a search, and only applies to one who is convicted of murder. Further, under the holding in Bradley, a joint tenant convicted of murdering the other joint tenant would retain title to an undivided one-half interest in the property as a tenant in common.

In Jones v. United States, 362 US 257 (1960), the United States Supreme Court stated at page 266:

“It is unnecessary and ill-advised to import into the law surrounding the constitutional right to be free from unreasonable searches and seizures subtle distinctions developed and refined by the common law in evolving the body of private property, law which, more than almost any other branch of law, has been shaped by distinctions whose validity is largely historical.”

We find that the trial judge ruled properly in allowing the motion to suppress certain physical evidence. Accordingly, the order of the Circuit Court of Cook County is affirmed.

Order affirmed.

BUBKE, P. J. and LYONS, J., concur.