text:
    Richard E. Siebens, Administrator of the Estate of Marian Siebens, Deceased, Plaintiff-Appellant, v. Robert C. Konicek, and James H. Still, Administrator of the Estate of Lila M. Still, Deceased, Defendants-Appellees.
    Gen. No. 68-126.
    Second District.
    April 28, 1969.

      A. Denison Weaver, of Chicago, for appellant.
    Strass, Terlizzi & Skjoldager, of Dundee, and Rissman and Jenkins, of DeKalb, for appellees.
   MR. JUSTICE DAVIS

delivered the opinion of the court.

On January 27, 1966, Marian Siebens sustained fatal injuries when the automobile in which she was riding as a guest passenger, and one driven by Robert C. Konicek, collided on By-pass 30 in Kane County. Lila M. Still, the driver of the automobile in which Marian Siebens was riding, was also fatally injured in the accident. Thereafter, the plaintiff, as administrator of the estate of Marian Siebens, deceased, brought this wrongful death action against Konicek and James H. Still, as administrator of the estate of Lila M. Still, deceased. The complaint charged the defendant, Konicek, with ordinary negligence, while Lila M. Still, the host driver, was charged with wilful and wanton conduct. The jury returned a verdict in favor of both of the defendants, and the plaintiff appealed.

The collision took place in the westbound lane of Bypass 30 near its intersection with Orchard Road. The vehicle in which the plaintiff’s intestate was riding was traveling in an easterly direction and Konicek’s vehicle was westbound. The immediate destination of plaintiff’s decedent and Lila M. Still was the Anchor Brush Company, where both women were employed.

The plaintiff’s expert witness — a traffic engineer whose qualifications are unquestioned — testified that, from his subsequent reconstruction of the accident, it appeared that at the point of impact both vehicles were moving from the south (eastbound lane) into the north (westbound lane) of the highway. In essence, the theory of his testimony was that the automobile in which the plaintiff’s decedent was riding, moved to the north into the westerly traffic lane to avoid Konicek’s car, which was proceeding westerly in the wrong lane of traffic, and which suddenly veered back into the westbound lane, causing the collision.

The defendant Konicek called Henry Swanson, an investigator for the Kane County Sheriff’s office, as his witness. Over objection of the plaintiff, Swanson was allowed to testify that in his opinion the collision between the two vehicles took place in the westbound traffic lane of By-pass 30. His opinion was based largely upon the position of broken glass from the vehicles. Konicek, the only occurrence witness, was precluded from testifying under section 2 of the Evidence Act (Ill Rev Stats 1965, c 51, par 2).

The plaintiff urges that the court erred in admitting the testimony of Swanson with reference to the point of impact; that such testimony suggested to the jury an inference that the car in which the plaintiff’s decedent was riding turned left in front of the Konieek vehicle; and that the opinion of Swanson was not based upon the application of any engineering principles and was speculative.

While such testimony was concededly less scientific in nature than that introduced by the plaintiff’s expert, such lack of expertise does not, under the facts of this case — where an investigating law enforcement officer renders an opinion as to the point of impact between two vehicles, based upon the location of debris— bar its admission. Thomas v. Cagwin, 43 Ill App2d 336, 340, 193 NE2d 233 (1963).

The plaintiff further contends that it was error to instruct the jury on the issue of the freedom of the plaintiff’s decedent from contributory negligence and contributory wilful and wanton misconduct. This argument has, as its premise, the theory that there was no evidence in this case that the plaintiff’s decedent failed to exercise ordinary care for her own safety. However, it is well established that to recover for injuries allegedly caused as the result of the negligence or wilful or wanton misconduct of the defendant, the plaintiff must prove his freedom from contributory misconduct of the same nature and degree as that alleged to have been done by the defendant. Zank v. Chicago, R. I. & St. P. R. Co., 17 Ill2d 473, 476, 161 NE2d 848 (1959); Valentine v. England, 6 Ill App2d 275, 278, 279, 127 NE2d 473 (1955).

There is no presumption which completely relieves the plaintiff of the burden of establishing due care. Newell v. Cleveland, C. C. & St. L. Ry. Co., 261 Ill 505, 508, 510, 511, 104 NE 223 (1914); Overman v. Illinois Cent. R. Co., 34 Ill App2d 30, 42, 43, 180 NE2d 213 (1962). The burden remains with the plaintiff, and in the absence of proof of due care, the plaintiff cannot recover. Jung v. Buelens, 77 Ill App2d 391, 394, 395, 222 NE2d 707 (1966).

In the case at bar, even if we assume that Konicek was guilty of ordinary negligence and Lila M. Still was guilty of wilful and wanton misconduct at the time and place in question, it must be recognized that the situation facing the plaintiff’s decedent immediately before the collision, was the same as that which faced her driver. The law imposes the same standard of duty for a passenger as for a driver of a vehicle, although the passenger’s conduct which will satisfy this duty may not be as stringent as that required of the driver, because their circumstances are different. Zank v. Chicago, R. I. & St. P. R. Co., supra, 482, 483.

It is the duty of a passenger in a vehicle where he has the opportunity to learn of and avoid a danger, to warn the driver of a vehicle, of the approaching danger, and he has no right, because someone else is driving, to omit reasonable and prudent efforts on his own part to avoid danger. Zank v. Chicago, R. I. & St. P. R. Co., supra, 483; Gillan v. Chicago, N. S. & M. Ry. Co., 1 Ill App2d 466, 472, 473, 117 NE2d 833 (1954).

There were no competent eyewitnesses of the accident, and the plaintiff did not put on any proof of careful habits of the decedent. The question of contributory misconduct of the plaintiff’s decedent was much at. issue and there was little, if any, proof to satisfy the plaintiff’s burden in this respect. Certainly, the plaintiff cannot complain of the issue going to the jury. Jung v. Buelens, supra, 394; Valentine v. England, supra, 279, 280,

Under the evidence in the case at bar, it was not error to instruct the jury on the issues of freedom from contributory negligence and contributory wilful misconduct with reference to the plaintiff’s decedent.

The plaintiff further urges that the court committed reversible error by giving instruction number 1 (IPI 21.02, modified), in that it improperly cast the burden on the plaintiff to prove that both his decedent and the host driver were in the exercise of ordinary care before he could recover from the defendant Konicek. If the instruction had the effect which the plaintiff contends, we would not hesitate to reverse on the authority contained in Schwartzenberg v. Midwest Transfer Co. of Illinois, 28 Ill App2d 30, 37, 38, 170 NE2d 29 (1960) which was cited by plaintiff.

However, this cause was consolidated at the trial with a companion suit brought in the name of James H. Still, as administrator of the estate of Lila M. Still, deceased, and against the defendant Konicek. The wording of the instruction objected to, when considered in this context, clearly appears to mean that, in their respective suits, the administrator of the estate of Lila M. Still, deceased, and the administrator of the estate of Marian Siebens, deceased, each had the burden of proving the exercise of ordinary care by his respective decedent, and did not have the burden of proving the exercise of ordinary care on the part of the other decedent. This being the case, there is no merit to the further objection that the wording of this instruction required the jury to make an election between the defendants as to liability and precluded them from rendering a verdict against both. From a review of all of the instructions, it is clear that Richard E. Siebens, as administrator of the estate of Marian Siebens, deceased, was not required to prove the use of ordinary care by the decedent Still in order to recover from Konicek, and, therefore, there is nothing inconsistent in the other instructions which required Siebens to prove that his decedent’s host driver (Still) was guilty of wilful misconduct.

In Hulke v. International Mfg. Co., 14 Ill App2d 5, 142 NE2d 717 (1957), at page 52, the court stated:

“The proper approach in considering instructions is not whether each individual instruction is meehani- . cally correct so as not to be subject to some technical objection, but whether or not the instructions when considered as a whole were sufficiently clear so as not to mislead the jury.”

The instructions in this case, when read as a whole against the factual background of the case, and in the light of the plaintiff’s Instruction No. 10 — “(Although there is more than one defendant in this action it does not follow from that fact that if one is liable both are liable. . . . You will decide each defendant’s case separately as if each were a separate lawsuit” — reveal no reversible error. The judgment of the circuit court of Kane County is, therefore, affirmed.

Judgment affirmed.

MORAN, P. J. and ABRAHAMSON, J., concur.


source: Caselaw Access Project

author: SMITH, J.

license: Public Domain

text:
    Charles W. Williams and Janita J. Williams, PlaintiffsAppellees, v. City of Bloomington, McLean County, Illinois, a Municipal Corporation, Robert J. McGraw, et al., Defendants-Appellants, Robert S. Tomb, Trustee, Intervening Petitioner-Appellant, and Paul G. Anderson, Jr., Plaintiff-Appellant. Robert S. Tomb, Trustee, and City of Bloomington, McLean County, Illinois, a Municipal Corporation, Intervening Plaintiffs-Appellants, v. George E. Holder, et al., Defendants-Appellees.
    Gen. Nos. 10,947-10,957. (Consolidated.)
    Fourth District.
    April 30, 1969.
    Rehearing denied May 23, 1969.

      E. William Rolley, Livingston, Barger, Brandt, Slater & Schroeder, of Bloomington (William R. Brandt and William C. Wetzel, of counsel), and Dunn, Dunn, Brady, Goebel, Ulbrich & Hayes, of Bloomington (Frank M. Brady, of counsel), for appellants.
    Thomson, Thomson & Mirza, of Bloomington (Chester Thomson, of counsel), and Campbell, Markowitz, Lawrence & Lenz, of Bloomington (Robert Markowitz, of counsel), for appellees.
   SMITH, J.

Plaintiffs filed for an injunction to restrain the defendants from using a lot zoned for a single-family residence as a driveway or walkway for ingress and egress to their four-unit apartment dwelling located on commercially zoned property. The City of Bloomington intervened to enforce an ordinance which allegedly forbade such use. In this case, the issue distills itself into the basic single question — whether or not such use violates the zoning ordinances of the City of Bloomington. The trial court held that it didn’t and all plaintiffs appeal.

Before final determination of the first suit, the defendants in that suit sought a plat of resubdivision of the property involved and presented it to the Planning Commission and to the City Council. Its approval was denied by both bodies. They then filed for a writ of mandamus against the city seeking an order directing such approval. The city and its officers appeal from a decision of the trial court granting the writ. In addition, the Trustee-owner of adjoining property appeals from an order denying him leave to intervene in this action.

The situation looks like this:

(The picture after denial of Williams’ resubdivision.)

As can be seen, Lot 22 abuts on a cul-de-sac and it is across this lot, as we have said, that the access driveway leads back to defendants’ apartment house.

As a bit of background (only), defendants after acquiring Lot 22 and part of Lot 21, had applied to the Zoning Commission and the City Council for a rezoning of this section to permit the four-unit apartment building. The application was denied. Defendants then purchased the area to the north of Lots 22 and 23, zoned commercial, and commenced the construction of the apartment house. The construction contract was entered into on November 18, 1965, the footings poured on December 8, and plaintiffs instituted their suit on December 16. At that time this area was outside of the city limits but later annexed. In spite of the pendency of this action, defendants continued their construction and paved a driveway across Lot 22 and began using it as access to the apartment house. We note in passing the curb cut given them by the city.

Is this access use prohibited? We look to the applicable zoning ordinances.

Section 2.2, c 44, of the Bloomington City Code provides :

“No building or premises shall be used, and no building shall be hereafter erected or altered for any purpose other than permitted in the Use District in which such building or premises is located, as follows

Section 2.201 of the same chapter provides:

“In the RIA and RIB ‘Single-family Districts’ as defined in Sec 2.103 of this Article, no building or premises shall be used, and no building shall be hereafter erected or altered, unless otherwise provided in this article, except for one or more of the following uses:
“(1) Single-family dwellings
“(2) Public parks, public libraries, public elementary and high schools and public community building
“(3) Private schools with a curriculum similar to public elementary and high schools
“(4) Churches
“(5) Golf courses — but not miniature courses or driving tees
“(6) Accessory use as provided in Sec 7.201 of Article VII of this chapter.”

Section 7.201 deals with such things as private garages, flower gardens, tennis courts, barbecue ovens, fireplaces, garages, etc.

This use is clearly barred by these sections. To allow this use is to pierce the cul-de-sac and extend the street into another area. What was once a turnaround is now merely a bulge. The ordinances read, “no . . . premises shall be used . . . for any purpose other than permitted in the use district in which such . . . premises is located,” and, “no premises shall be used . . . except for one or more of the following uses.” Phraseology such as this does not lend itself to the construction that if a use is not prohibited, it is permitted. The contrary is true. If such and such a use is not set forth, it is prohibited. The express uses, of course, must be read to include reasonably implied ones. But neither expressly nor by implication is an access driveway across an entire lot to provide ingress and egress for vehicular or pedestrian traffic to another area within the purview of this ordinance. To us, it is clearly beyond the pale.

Do equitable considerations impinge? We cannot fault the plaintiffs for diligence. They were in court in time to put the defendants on notice. The defendants not only continued to build but had sold the north half of the apartment lot without retaining access. They took the chance that the plaintiffs might be right — as it now appears they are — and they are in no position to complain.

The issuance of the curb cut, we earlier noted, “in passing” is said to somehow estop the city from, questioning the use made of the driveway. In R1 Districts, accessory uses are permitted and one of these uses is a private garage as set out in section 7.102, paraphrased above. We need not belabor the point that a garage is useless without a driveway and a driveway is unhandy, to say the least, if one has to jump the curb to get there — thus the curb cut. But such a cut implies nothing more than a driveway for a permitted auxiliary use — not a thoroughfare to next door and beyond. That defendants were misled to their damage by the granting of the curb cut is negatived by the wording of the permit itself — “Maximum width of curb is as follows: Residential, 12' (Single garage).” It is piling Ossa on Pelion to infer from this something more than a 12' driveway to a single garage on the premises.

Next we are told that the issue before us has already been decided in People v. Village of Deerfield, 50 Ill App2d 349, 200 NE2d 120, and that if stare decisis is still viable doctrine, any departure on our part from Deerfield would be unseemly at best. This doctrine as we recently said in Schenk v. Schenk, 100 Ill App2d 199, 241 NE2d 12, is a “stalwart pillar in the judicial process and a worthy and respected proponent of stability in the law.” We can affirm again this prior panegyric of ours and at the same time disregard Deerfield. We can do this because Deerfield is simply not dispositive of the issue before us. On the contrary it is a very inapt guide, if a guide at all. Thus the application of the doctrine here is inappropriate. Markedly different ordinances are involved and such differences dispel meaningful comparison, much less succor from this “stalwart pillar.” In Deerfield, we read: “Nor do we find anything in the zoning ordinance which, as contended by counsel for the Village, ‘prohibits the use of a lot zoned for single-family residence use, as access to a multiple-family zone’ if agreeable to the owner. . . .” In the ordinance before us, the prohibition is as clear as words can make it. In Deerfield, just the opposite. Hence, the inappositeness of this case as authority. Stare decisis is thus a stranger in our present context.

Were we to deny the relief here sought, the ordinance involved is reduced to a dead letter. If zoning is to have any meaning at all, prohibited uses must be prohibited by courts when asked to do so — assuming, always, that, equitable considerations do not obtrude. Here, in simple and concise English, the ordinance says that certain uses are permitted and no others. To us, it would follow that if a use is not permitted — it is prohibited. Thus we reverse.

Zoning is one of the means we have devised of alleviating to the extent possible the pangs which inevitably follow when more and more people have less and less space in which to live — together. That zoning does not always succeed in minimizing this abrasiveness, that absurdities sometimes result, that rights of ownership are sometimes infringed is no reason for courts to refuse to enforce ordinances when asked. The purpose of this ordinance was to limit use to single-family residences with compatible accessory uses. Such purpose, certainly proper, would be defeated were we to permit the access driveway here sought to be enjoined. There is nothing wrong with extending one-way streets, as such, but they cannot be extended across lots where such extension is a nonpermitted use.

We next take up the second aspect of this appeal, the mandamus action against the city and the collateral appeal involving the right of intervention. The plat of resubdivision involved, redivides Lots 21, 22 and 23. When the action was filed, Robert S. Tomb, Trustee, attempted to intervene. Tomb is the owner of Lots 24 and 25. As can be seen, Lot 24 adjoins 23 and fronts on the cul-de-sac. It is apparent that Tomb has a vital interest in the attempt to resubdivide Lots 22 and 23. His interest is rather immediate, to say the least. He is right next door. Whatever his interests may be, he certainly has standing to intervene and to make them known. Rules and statutes providing for intervention are to be liberally construed.

Thus, we have no choice but to remand this matter with directions to allow the intervening petition. Once allowed, presumably, Robert S. Tomb will pursue his rights. For all we know, such pursuit may raise factual issues and thus the short cut to judgment via a motion for summary judgment is out of place. Since remandment is necessary, we need not now take up at length the major contention of defendants that triable issues did exist. However, our perusal indicates just that. While the affidavits in opposition to the motion would seem to leave a lot unsaid, still, they frame triable issues. As we said in DiBattista v. Centennial Ins. Co., 52 Ill App2d 84, 201 NE2d 466, “Summary judgment and triable issues are incompatible.” Also apropos:

“So favored is the avenue of trial that affidavits in support of the motion are strictly construed, while those in opposition, it is said, receive a liberal construction. Midwest Grocery Co. v. Danno, 29 Ill App2d 118, 172 NE2d 648. This is not so much to say that summary disposition is in disfavor, rather, we are chary of denying a litigant his day in court. Hence the benefit of the doubt goes to the party resisting the motion. After all, a mistaken denial denies neither his day, though it is doubtless an imposition on the movant. That as it may be, this imposition is of nothing compared with the consequences resulting from a mistaken allowance for then the case is over, with only an appeal available to show that there were triable issues. An appeal, as we know, is not always possible, and even if we assume, as we must, that an appeal would in the course of nature set things aright, that avenue is laborious and expensive, which does not, of course, detract from our assumption.”

Accordingly, in Cause No. 10,957, the order dismissing the complaint and denying injunctive relief is reversed and remanded with directions to enter a permanent injunction enjoining defendants from using Lot 22 as an access driveway to the area beyond and for such further relief consistent with the views herein expressed. Equity does demand, however, that defendants be given a reasonable time to seek other means of access.

With regard to Cause No. 10,947, the judgment is reversed and remanded with directions to allow the intervening petition of Robert S. Tomb, Trustee.

Both causes reversed and remanded with directions.

TRAPP, P. J. and CRAVEN, J., concur.


author: CRAVEN, J.,

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Granville Bensley, Defendant-Appellant.
    Gen. No. 10,997.
    Fourth District.
    April 30, 1969.

      William Cherikos, of Charleston, for appellant.
    L. Stanton Dotson, State’s Attorney, of Charleston, for appellee.
   CRAVEN, J.,

delivered the opinion of the court.

A petition was filed in the Circuit Court of Coles County alleging the defendant to be a sexually dangerous person. After a jury trial a verdict was returned finding the defendant to be sexually dangerous and he was thereupon committed to the custody of the Director of the Department of Public Safety as a sexually dangerous person. This appeal is from that proceeding.

The defendant, in the only brief filed in this court, designated as “Abstract, Statement, Brief and Argument,” asserts that the verdict of the jury was against the manifest weight of the evidence and that the trial court erred in refusing to grant a new trial and erred in certain evidentiary rulings. No abstract or excerpts of the report of proceedings have been filed. We have taken with the case a motion of the appellee to dismiss the appeal for failure to comply with the rules applicable to appeals.

Rules of civil practice apply to appeals in proceedings relating to the Sexually Dangerous Persons Act (Ill Rev Stats 1965, c 38, pars 105-1.01, et seq.); People v. Fish, 36 Ill2d 220, 221 NE2d 637 (1966). Where, as here, the appellant seeks a reversal of the proceedings below based upon errors in the trial proceeding, it is, of course, essential that this court have an abstract of those proceedings. The language of Mr. Justice Davi3 in People v. Garner, 91 Ill App2d 7, 234 NE2d 39 (2nd Dist 1968), although a criminal case, is appropriate here.

“. . . The court will not examine the record to reverse the judgment where an insufficient abstract is filed. The rationale of this rule is that the abstract is the pleading of the appellant by which the cause of action established in the transcript of record is presented for review, and it must be sufficient to apprise the court of the errors relied upon for reversal, without the examination of the record itself. People v. Parker, 345 Ill 181, 182, 177 NE 727 (1931). Also see: Harris v. Annunzio, 411 Ill 124, 126, 103 NE2d 477 (1952); People v. Nelson, 398 Ill 623, 626, 76 NE2d 441 (1948); People v. Bolds, 398 Ill 626, 628, 76 NE2d 456 (1948); People v. Hill, 388 Ill 247, 248, 57 NE2d 859 (1944). A further and pragmatic reason for this rule is that reviewing courts are multiple judge courts and only one transcript of the record is filed.” People v. Garner, 91 Ill App2d 7, 10 (234 NE2d 39, 41 (2nd Dist 1968)).

In connection with the filing of the motion to dismiss the appeal, this court was made aware of an order entered by the trial court releasing the defendant from the guardianship of the Director of the Department of Public Safety under the statutory provisions authorizing a conditional release.

This court much prefers to dispose of an appeal on the merits rather than by a disposition for noncompliance with procedural requirements. Where, however, the issue presented relates to the details of the trial proceeding and no abstract thereof nor excerpts thereof are filed and other procedural deficiencies are noted, we feel compelled to grant the motion of the appellee to dismiss the appeal. It is so ordered.

Appeal dismissed.

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


author: TRAPP, P. J.

text:
    Canyonville Bible Academy, Plaintiff-Appellant, v. Louis M. Lobemaster and Bernice Lobemaster, Defendants-Appellees.
    Gen. No. 11,063.
    Fourth District.
    May 8, 1969.

      Robert F. Quinn, of Wood River, Thompson, Mitchell, Douglas & Neill, and Fred E. Arnold, of St. Louis, Missouri, for appellant.
    Phillip A. Theis and William W. Schooley, of Granite City, for appellee.
   TRAPP, P. J.

Plaintiff, Canyonville Bible Academy, a corporation, appeals from a judgment that plaintiff take nothing by its suit upon a promissory note executed by the defendants, Louis M. Lobemaster and Bernice Lobemaster.

On February 18, 1964, defendants executed a promissory note in the sum of $12,694.22, payable to the order of Lobmaster Trailer Sales, Inc., in 84 monthly installments of $151.13, commencing March 20,1964. The note was endorsed by the corporate payee to Jefferson Bank and Trust Company of St. Louis, Missouri, (hereinafter referred to as the Bank), on February 20, 1964, which was prior to the due date of the first installment payment.

Default was subsequently made as to the installment due April 20, 1965. On June 16, 1966, the Bank assigned all right, title and interest in the note to plaintiff.

No question is raised by the defendants as to the following: (1) the validity of their signatures, (2) the acquisition of the note by the Bank prior to the date of the first installment payment, for value and in good faith in the regular course of business, and (3) the actual assignment of the note by the Bank to plaintiff on June 16,1966.

The defenses asserted arise from certain collateral facts. The original payee of the note, Lobmaster Trailer Sales, Inc., was owned and operated by one Samuel D. Lobmaster who made a practice of discounting notes representing trailer sales with the Bank. Several years before the transaction in question Samuel D. Lobmaster, by written instrument dated February 27, 1960, personally guaranteed payment as they might mature of all loans discounted by Lobmaster Trailer Sales, Inc., with the Bank. Additionally, on or about December 30, 1963, at the insistence of the Bank, Samuel D. Lobmaster procured a life insurance policy with Prudential Life Insurance Company in the amount of $200,000 upon his own life for additional security upon transactions which he had personally guaranteed to the Bank. On December 30, 1963, Samuel D. Lobmaster also assigned the policy to the Bank as collateral. The life insurance policy contained the following “Beneficiary Provision”:

“If this Policy matures by death, the proceeds shall be payable in one sum to Jefferson Bank and Trust Company, a Corporation, of St. Louis, Missouri, its successors or assigns, beneficiary, creditor of the insured, as its interest may appear, and the balance of the proceeds, if any, to Canyonville Bible Academy, of Canyonville, Oregon, beneficiary, or, if said Academy is not in existence, to the Estate of the insured.”
“It is agreed that a sworn statement submitted to the company by a creditor beneficiary, its successors or assigns, after the death of the insured as to the amount of its claim against the insured at the time of the insured’s death shall be binding upon such beneficiary, its successors or assigns, and payment made in accordance with such statement shall discharge the company from all liability as to such payment.”

Samuel D. Lobmaster was killed in an airplane crash on February 25, 1964, five days after the negotiation of the litigated note to the Bank. On affidavit of a bank officer that Samuel D. Lobmaster’s indebtedness to the Bank exceeded $200,000, the insurance company paid the proceeds of the policy to it.

At the time of Samuel D. Lobmaster’s death, his indebtedness to the Bank, including guaranties, exceeded $600,000, but after payment by primary obligors it was reduced to approximately $200,000. The bank originally set up a reserve fund with the $200,000, and subsequently charged certain defaulted primary obligations against it. With the consent of the plaintiff, Canyonville Bible Academy, the Bank charged the remaining $9,674.30 due on the Louis and Bernice Lobemaster note against thfe reserve account on condition that the note be assigned to the plaintiff.

After Samuel D. Lobmaster’s death, on April 8, 1964, his executors entered into an agreement with one A. C. Naeger and Jacklyn S. Naeger, whereby they assumed certain liabilities of Samuel D. Lobmaster to the Bank which included the note in question. Thereafter, A. C. Naeger paid the installments through March of 1965. The Bank was not a party to this agreement, and did not agree to a substitution of obligors or guarantors of the note in question. The agreement was never presented to the Bank.

Three affirmative defenses are pleaded. The first was that the pledge of the insurance policy acted as a removal of assets from the estate of Samuel Lobmaster, and the assets so removed were used to pay the note pursuant to an agreement between the defendants and Samuel Lobmaster. The apparent theory of removal of assets from the estate is that somehow the estate, and not the plaintiff, should benefit. If this theory were true, we do not see how it would relieve the defendants of liability. However, in fact, by the terms of the policy the plaintiff was a primary beneficiary, and the Samuel Lobmaster estate was a beneficiary contingent upon the nonexistence of the plaintiff. The Lobmaster estate has not been called upon to satisfy the obligation, nor, so far as it appears, any other obligation now within the reserve account created, and the estate does not make any claim here upon the basis of the note. That estate retains the proceeds received upon the original discount of the note. If assets were removed from anywhere they would appear to have been removed from plaintiff’s control.

The second affirmative defense is that the note was made payable to the Lobmaster Trailer Sales, Inc., and there was never a valid assignment or purchase of the note for value.

Under section 3-201 of the Uniform Commercial Code (DI Rev Stats 1963, c 26, § 3-201) transfer is provided for as follows:

“(1) Transfer of an instrument vests in the transferee such rights as the transferor has therein, except that a transferee who has himself been a party to any fraud or illegality affecting the instrument or who as a prior holder had notice of a defense or claim against it cannot improve his position by taking from a later holder in due course.”

In the Illinois Annotated Statute, the Illinois Code Comment under this section is the following interpretation:

“The first clause of this subsection changes the rule under the first part of § 49 of the Illinois NIL (§49 of the NIL with variations), which provided ‘where the holder of an instrument payable to his order transfers it for value without indorsing it, the transferer vests in the transferee such title as the transferee [transferer] had therein’ (emphasis supplied). This subsection eliminates the requirement of value for purposes of transferring the rights of the holder. It is in accord with Illinois case law indicating that a valid transfer may he made by way of gift: Rothwell v. Taylor, 303 Ill 226, 135 NE 419 (1922); Rankin v. Race, 318 Ill App 230, 47 NE2d 383 (1st Dist 1943); petition for leave to appeal denied 321 Ill App xiv; City Nat’l Bank & Trust Co. v. Oberheide Coal Co., 307 Ill App 519, 30 NE2d 753 (1st Dist 1940).”

Additionally, under the Uniform Commercial Code Comment in the Hlinois Annotated Statute is the following:

“2. The transfer of rights is not limited to transfers for value. An instrument may be transferred as a gift, and the donee acquires whatever rights the donor had.”

Under section 3-201 of c 26, Ill Rev Stats (1963), it is quite clear that any transfer of an instrument transfers all rights of the transferor, except in the specific case noted as an exception. Since the Bank was a holder in due course and plaintiff was not a prior holder, the plaintiff by transfer from the Bank acquired the rights of a holder in due course irrespective of the question of value. Also we think that since the guaranty by Samuel Lobmaster was general and involved many notes which the Bank was required to handle and questions could arise as to whether certain liabilities really existed or could be paid out of the insurance proceeds, a consideration in the nature of a detriment to plaintiff was involved in agreeing to satisfaction of the guaranty from the insurance fund.

The third affirmative defense is that the estate of Samuel Lobmaster accepted the assumption of liability on the note by A. C. Naeger and Jacklyn Naeger. Since this agreement did not involve the Bank, and in fact was not entered into until 47 days after the Bank became a holder in due course, the agreement could not possibly affect the Bank’s status as a holder in due course. The undisputed testimony is that the Bank did not accept the Naegers as substitute debtors or guarantors. If the Bank had accepted them in place of Samuel Lobmaster’s guaranty, the Bank would not have been entitled to collect from the insurance proceeds.

Since the Bank could unquestionably have pursued its legal remedy upon the note against the defendants, we see nothing which prevented it from transferring the note to plaintiff. The Bank was no more required to satisfy the defendants’ obligation from the insurance fund than it was to satisfy any other part of the $600,000 owed the bank at Samuel Lobmaster’s death from the fund in lieu of collecting from the primary obligors.

We conclude that the transfer of the defendant’s note by the Bank to plaintiff gave plaintiff the Bank’s status as a holder in due course, and the note is enforceable by plaintiff against defendant.

The cause is reversed and remanded with directions to enter judgment in favor of plaintiff and against the defendants in the amount of $9,674.30 with interest at 7% per annum from June 16, 1966, and reasonable attorneys’ fees not to exceed 15% of the amount due at the time of suit and costs.

Reversed and remanded.

SMITH and CRAVEN, JJ., concur.


author: MILLS, J.,

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Raymond M. Hardaway, Defendant-Appellant.
    Gen. No. 11,076.
    Fourth District.
    May 8, 1969.

      Glenn O. Fuller, Assistant Public Defender, of Decatur, for appellant.
    Basil G. Greanias, State’s Attorney of Macon County, of Decatur (Garry E. Davis, Assistant State’s Attorney, of counsel), for appellee.
   MILLS, J.,

delivered the opinion of the court.

The defendant was indicted for the offense of armed violence, was tried before a jury, found guilty, and thereafter was sentenced to the penitentiary for a term of two years.

To reverse the judgment of conviction defendant contends (1) that the evidence is not sufficient to establish the defendant’s guilt beyond a reasonable doubt and that the verdict is contrary to the manifest weight of the evidence, (2) that the state’s attorney in his rebuttal closing argument committed error by commenting upon the failure of the defendant to call a certain witness, (3) that the penalty provisions prescribed for the offense of armed violence in this case are unconstitutional, and (4) that an unlawful penalty was imposed by the trial Court.

Complaining witness Beaman testified that while he was walking in downtown Decatur in the evening, the defendant, walking in the opposite direction, veered over toward him and began swearing in filthy language. The defendant then grabbed Beaman and threw him against an automobile, knocking him to the ground. When Beaman got up, defendant was standing over him with a gun in his hand and said “I’ll kill you, you son-of-a-bitch.” Beaman then testified that a group of people gathered around the sidewalk watching and the defendant turned and ran. Beaman immediately proceeded into an adjacent drugstore and called the police, giving a description of the defendant. Later, he was summoned to the police station where he identified the defendant as his assailant. Beaman also made an unreserved identification of the defendant at the trial. A gun was produced at the trial, and Beaman testified that it was one like defendant had at the time of the assault, but admitted that he could not positively identify the exhibit as the one used during the crime.

Defendant’s version of the contact with Beaman was that he accidently bumped into the complaining witness, excused himself, turned and continued on his way looking for some friends. He testified that Beaman turned around and said “black nigger, you still following me?” Defendant then stated he walked up to Beaman, pushed him, and that Beaman stumbled against an automobile but did not fall. He then left Beaman and had no further conversation or contact with him. Defendant denied having had any weapon, denied threatening Beaman, and stated that he had keys in his hand that Beaman might have mistaken for a weapon. Being unable to find his friends, defendant then returned to his automobile and drove his car around the block. Upon spotting his friends, he parked his car, walked one-half block to join his friends, conversed with them, started to walk back toward his car and was at that time arrested.

The arresting police officer testified that about fifteen minutes after the occurrence he saw the defendant standing across the street from his squad car. As the officer was backing up his car, defendant ducked down out of sight behind a car parked on defendant’s side of the street. The police officer got out, and ran toward the defendant, who raised up and emerged between two parked cars, the one he had ducked behind and the one back of it. The police officer did not see what defendant was doing during the time he was out of his line of vision and heard no particular noise. Upon a search of the defendant and the defendant’s car, nothing was found; a search of the sidewalk and area around the car that defendant had ducked behind also was unproductive. But after the defendant had been removed from the area, the police officer found the gun later introduced at trial under the rear axle of the automobile parked behind the car that defendant had ducked behind.

The complaining witness’s identification of the defendant was positive and completely unshaken on cross-examination. He identified defendant in the police station, he identified him in open court at the trial and testified that his in-court identification of defendant was based upon observation at the scene of the occurrence and not upon observation of the defendant at the police station. In fact, defendant admitted having personal contact with the complaining witness at the time and place of the alleged offense. Their stories differ only as to what took place. The question facing the jury was who told the truth, and the jury obviously believed the testimony of the complaining witness rather than that of defendant. This was the function of the trier of fact. “The testimony of even one witness, if positive and credible, is sufficient to convict in a criminal prosecution in this State, even though it is contradicted by the accused.” People v. Novotny, 41 Ill2d 401, 411, 244 NE2d 182, 188; People v. Lacey, 24 Ill2d 607, 182 NE2d 730, 732; People v. Sproch, 409 Ill 55, 97 NE2d 833. And even where there is corroboration, and the evidence is conflicting, the question of the credibility of the witnesses and the weight of the evidence is for the jury. People v. Halteman, 10 Ill2d 74, 139 NE2d 286, 292; People v. Ulrich, 411 Ill 316, 104 NE2d 263, 266. As the Supreme Court said in People v. Williams, 40 Ill2d 522, 240 NE2d 645, 648: “Nor will this court reverse a judgment of conviction unless the evidence is so palpably contrary to the verdict, or so unreasonable, improbable or unsatisfactory as to justify entertaining a reasonable doubt of defendant’s guilt.” See also People v. Lobb, 17 Ill2d 287, 161 NE2d 325. We conclude that the evidence in the record is clearly sufficient to support conviction, and in the absence of substantial prejudicial error we will not abjure the judgment of the jury to replace it with our own.

Next, defendant contends that reversible error was committed by virtue of improper argument by the prosecutor. The state’s attorney, in rebuttal closing argument, said, “Who else? Who helped put these pieces of jigsaw puzzle together — put them all together? The defendant even had difficulty remembering who he was to meet at Newman’s. He had difficulty. She wasn’t here in Court today. I didn’t hear her testimony, I don’t believe.” Defense counsel immediately objected on the basis that this was improper rebuttal, for the reason that this point had not been first raised in the state’s attorney’s opening final argument. The prosecutor stated that this went to “credibility of witnesses,” and the court sustained the objection. The record is clear that the prosecutor did not refer to the unproduced defense witness in his first closing argument, but we must also look at defense counsel’s final argument. Defendant’s attorney argued extensively that the jury was faced with deciding who was telling the truth, complaining witness Beaman or the defendant, and which version of the occurrence was most believable. It is well settled that where comments and arguments are invited by remarks of defense counsel, a defendant will not be allowed to claim prejudice by rejoinder. People v. Lewis, 25 Ill2d 442, 185 NE2d 254, 256; People v. Wheeler, 5 Ill2d 474, 126 NE2d 228, 234. Defendant testified that at the time of the occurrence he was searching for some friends, and upon cross-examination identified one to be Ernestine Greer who had moved to Cleveland. The other girls were named Ollie and Bert. None of these persons were called as witnesses. Alibi was not a defense, nor were these possible alibi witnesses. But their testimony would have gone to the question of credibility of the defendant’s testimony. Defense counsel thus opened the door by his arguments concerning which testimony the jury was to believe, and the prosecutor merely continued the general line of argument initiated by defense. In view of prior decisions on this point, the court considers it unnecessary to further burden this opinion. People v. Williams, 40 Ill2d 522, 240 NE2d 645, 649; People v. Lion, 10 Ill2d 208, 139 NE2d 757, 761; People v. Swift, 319 Ill 359, 365-366, 150 NE 263; People v. Sicks, 299 Ill 282, 286, 132 NE 573.

We now turn to the contention that the penalty provisions for armed violence as applied to this case are unconstitutional. No cases are cited by the defendant as authority for this position, nor can we perceive a question of constitutionality. It is merely one of statutory construction. The armed violence provisions of the Hlinois Criminal Code (111 Rev Stats 1967, c 38, §§ 33A-1, 2, 3) were added to the code on August 3, 1967. No reviewing court to date has been called upon to consider the statutory language of these three sections of the code. As to the criteria for construction of penal statutes, it is axiomatic that they must be construed in favor of the accused with the object being the ascertainment of legislative intent. This is the final, proper and legitimate purpose of judicial construction. And although criminal statutes must be strictly construed, such construction cannot be utilized for the purpose of defeating the legislature’s apparent and clear intent. People v. Kirkrand, 397 Ill 588, 74 NE2d 813, 815.

Section 33A-1, supra, defines “armed with a dangerous weapon” by specifically designating a variety of recognized weapons, including various types of guns, and “or any other deadly or dangerous weapon or instrument of like character.” Section 33A-2, as is applicable to this appeal, defines the offense herein charged: “A person commits armed violence when, while armed with a dangerous weapon, he performs any act prohibited by Sections . . . 12-2, ... of this Act.” The penalties Section, 33A-3, requires that a person convicted of armed violence “shall be imprisoned in the penitentiary for not less than 2 years and not more than the maximum provided for the same act while unarmed.” The indictment herein charged the offense of armed violence by committing the offense of aggravated assault “while armed with a pistol, a dangerous weapon.” Section 12-2 of the Criminal Code reads: “(a) A person commits an aggravated assault, when, in committing an assault, he: (1) Uses a deadly weapon; . . . (b) Penalty. A person convicted of aggravated assault shall be fined not less than $25 nor more than $1,000 or imprisoned in a penal institution other than the penitentiary not less than 4 days nor more than one year, or both.”

We think it obvious that the legislature intended by its 1967 creation of the offense of armed violence to counteract the much publicized increase in crime rate. Certain designated existing offenses were magnified into the more serious offense of armed violence when they were committed while armed. Such legislation was purely within the authority of the legislative branch, and no decisional authority has been presented by defendant to attack the presumption of constitutionality of such legislation. North Shore Post No. 21 of the American Legion v. Korzen, 38 Ill2d 231, 230 NE2d 833, 835.

Defendant further contends that “armed with a dangerous weapon” under armed violence is in direct conflict with “uses a deadly weapon” under the primary offense of aggravated assault, and that using a weapon is certainly more serious than merely being armed with a dangerous weapon. Assuming, arguendo, the correctness of this distinction, no authority has been cited to this court, nor are we aware of any, that casts doubt upon the constitutionality of the armed violence sections of the criminal code. Granted, the legislature may have intended the armed violence sections to apply only to felonies, and perhaps the inclusion of a misdemeanor was an oversight, or an inadvertent inclusion, or an error in draftsmanship. Yet such inattention does not give birth to unconstitutionality. The armed violence provisions do not affect the necessity of proving the required elements of the original and primary offense of aggravated assault, which were alleged in the indictment and proved on trial.

Lastly, the sentence is challenged. And rightly so. The sentence of a flat two years in the penitentiary imposed by the trial court is erroneous since it exceeds the authorized maximum penalty pursuant to section 33A-3. The two years sentence to the penitentiary exceeded the reservation of the armed violence penalty section by being more than the maximum provided for the primary offense of aggravated assault, which is a misdemeanor and carries no more than a maximum of one year in a penal institution other than the penitentiary. It follows, therefore, that the sentence imposed of two years in the penitentiary is improper and erroneous, and must be vacated.

The conviction is affirmed, the sentence of the trial court is vacated and the cause is remanded to the trial court for imposition of sentence in accordance with this opinion.

Conviction affirmed and remanded with directions.

CRAVEN, P. J. and SMITH, J., concur.


author: JUSTICE ABRAHAMSON.

text:
    Blanche Celing, Plaintiff, Counterdefendant-Appellant, v. Norma L. Meller, Defendant, Counterplaintiff-Appellee.
    Gen. No. 68-156. (Abstract of Decision.)
    Second District.
    May 9, 1969.
    Kehearing denied June 12, 1969.
    Wahler and Pecyna, of Chicago, for appellant; Michael J. Costello, of Springfield, and Snyder, Clarke, Dalziel, Holmquist & Johnson, of Waukegan, for appellee.
   Opinion by

JUSTICE ABRAHAMSON.

Not to be published in full.


author: JUSTICE CRAVEN.

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Jeroid Barbour, Sr., a/k/a “Pee Wee” Barbour, Impleaded, Defendant-Appellant.
    Gen. No. 10,968. (Abstract of Decision.)
    Fourth District.
    May 13, 1969.

      W. H. Hasten, of Springfield, for appellant; Richard A. Hollis, State’s Attorney of Sangamon County, of Springfield (Bruce D. Locher, Assistant State’s Attorney, of counsel), for appellee.
   Opinion by

JUSTICE CRAVEN.

Not to be published in full.


author: TRAPP, P. J. CRAVEN, J.,

text:
    Patsy J. Freer, Individually, and Patsy J. Freer, as Administrator of the Estate of Kenyon L. Freer, Deceased, Plaintiff-Appellee, Cross Appellant, v. Ida Alberta Rowden, Defendant-Appellant, Cross Appellee.
    Gen. No. 10,998.
    Fourth District.
    May 13, 1969.

      Gillespie, Burke & Gillespie, of Springfield (George B. Gillespie and Robert E. Gillespie, of counsel), for appellant.
    Knuppel, Grosboll, Becker & Tice, of Petersburg, for appellee.
   TRAPP, P. J.

Defendant appeals from a judgment entered upon a jury verdict returned in an administrator’s action for wrongful death. Plaintiff appeals from the court’s order for a remittitur in the sum of $868 from the verdict upon the administrator’s count for funeral and medical expense.

Defendant urges error in denying her motion for directed verdict and in refusing instructions directed to issues as to whether decedent was a guest under chapter 95%, § 9-201, 111 Rev Stats 1965, and in submitting to the jury issues of defendant’s general negligence under res ipsa loquitur, as well as for specific negligence pleaded.

Plaintiff alleged the death of the decedent while he was riding in an automobile under the control of the defendant with an allegation that the injury would not have occurred if defendant had used ordinary care. There was also submitted as specific negligence whether defendant drove the left front wheels off the slab of the passing lane onto the dividing median and was negligent in turning sharply back onto the pavement with the result that the car skidded and rolled over. Defendant urges that the evidence shows that the misadventure occurred when the left rear tire of the automobile blew out while defendant was passing another vehicle.

Both defendant and the decedent lived in Girard, Illinois, and were employed at the Allis Chalmers plant in Springfield, the former having been employed for some twenty-four years and the latter for two or three years. For a year defendant had driven her car daily to and from work, and decedent had been riding with her on most working days for some two or three months. On Mondays he drove his own car so that he could attend National Guard drills. As to the arrangement for such travel, defendant testified that decedent was a friend of her son and “. . . between the two of them they talked me into it.” She further testified that every two or three weeks defendant would purchase a tank of gasoline for the two-year-old Ford Falcon used, and that while she accepted such purchase she never requested that he buy gasoline. The total distance travelled daily was between 50 and 60 miles.

There was possible impeachment through her statement at the Coroner’s inquest that decedent purchased gasoline two or three times a week. The defendant testified that at the date of the inquest she had not recovered from the physical and emotional shock of the experience. The widow of the decedent testified that he brought $125 every two weeks as his pay, that she divided the money to apply on bills and gave some to decedent. Her statement that decedent said that $5 of the sum given him was for the ride was stricken as hearsay. The trial court denied defendant’s instruction tendered as IPI 72.01, modified, defining a guest and ruled as a matter of law that decedent was a passenger for hire.

We have examined the reported cases wherein travel to and from work in another’s automobile raised the issue of status as guest or passenger. In Marks v. Newburger, 69 Ill App2d 220, 216 NE2d 250 (1966), plaintiff and defendant travelled some 30 miles a day to a place of common employment in defendant’s car throughout the five-day work week. The evidence disclosed that plaintiff purchased defendant’s breakfast once or twice a week and an occasional tank of gasoline. The court concluded that plaintiff’s status was that of guest in that there was no arrangement or understanding with regard to plaintiff’s payment for such transportation. The result was to the contrary in McNanna v. Gach, 51 Ill App2d 276, 201 NE2d 191 (1964), wherein four youths each paid $2 per week to a fellow student for a daily ride to school. The court noted that there was a regular and continuing arrangement with certain and substantial payment made by agreement or custom, so that the plaintiff was a passenger as a matter of law. In Kinney v. Kraml Dairy, Inc., 20 Ill App2d 531, 156 NE2d 623 (1959), the court found that there was a passenger status in the reciprocal arrangement where the plaintiff and defendant on alternate days drove the other to work. In Dirksmeyer v. Barnes, 2 Ill App2d 496, 119 NE2d 813 (1954), defendant drove daily to work with three men who paid ?2 per trip, and one who travelled a lesser distance paid fifty cents. The court held that the evidence sustained a finding that plaintiff was a passenger in that there was regular and continuous transportation provided for a regular, certain and substantial payment.

In this case there is sdme evidence that plaintiff’s travel with defendant originated in the social relationship of plaintiff and defendant’s son, and there is, we believe, a conflict of evidence as to whether there was an arrangement to provide transportation for an agreed or customary sum certain, or whether defendant received such tangible benefits as would motivate furnishing transportation. The court’s determination that decedent was a passenger as a matter of law does not meet the standard stated in Pedrick v. Peoria & Eastern R. Co., 37 Ill2d 494, 229 NE2d 504. There is such difference in the testimony as to the arrangement that the issue of status was a question of fact for the jury. Kinney v. Kraml Dairy, Inc., 20 Ill App2d 531, 156 NE2d 623; McNanna v. Gaeh, 51 Ill App2d 276, 201 NE2d 191 (1964). We believe that the trial court erred in the ruling.

We examine certain issues which would again arise on a new trial. Defendant contends that the trial court erred in submitting both issues of specific and general negligence to the jury and instructing them upon the same, it being argued that the evidence shows that the defendant’s left rear tire blew out causing the car to leave the slab and subsequently roll over. Following the event, a member of the State Police took custody of the tire, but it was mislaid or lost so that it was not produced at the trial or available for skilled examination. The testimony and the photographs in evidence show both the left front and left rear tires of the Falcon flat. The testimony is that the left rear tire was a two-ply tire rated four-ply with good tread, but that there was a break in the outer surface several inches in length and a longer break on the inner surface. No examination was made of the front tire for the stated reason that no break in the outer surface was observed. Plaintiff argues that the tire damage occurred as the car was turned back from the median strip onto the pavement, skidded some 99 feet and overturned. There is no evidence that the Falcon was driven at excessive'speed.

Defendant testified that as she was passing on the left of another vehicle she heard a hissing noise for an instant, which she described as a blowout. The car went off the road and she hit her head and had no further recollection of what happened. One Dozier, called as a witness by defendant, testified that he was driving some 150 feet behind defendant’s car, that he heard a noise, . . like a tire blew,” and the car went off the slab to the left.

One Sweet, who was riding with Dozier, was called as a witness by plaintiff. On direct examination he testified that he thought a tire blew out, as he was surprised to see defendant’s car swerve off the slab. On cross-examination, he stated that he did not see why the car left the pavement. Plaintiff also called one Skinner who testified that he was about a quarter of a mile behind the Falcon, that two or three cars intervened between them and that he saw defendant’s car veer off as though to pass, then a cloud of dust and the car rolled several times.

Where general negligence has been pleaded it is a question of law whether or not the doctrine of res ipsa loquitur applies in a given case. Metz v. Central Illinois Electric & Gas Co., 32 Ill2d 446, 207 NE2d 305; Roberts v. Economy Cabs, Inc., 285 Ill App 424, 2 NE2d 128; McCleod v. Nel-Co. Corp., 350 Ill App 216, 112 NE2d 501.

There is authority that under certain circumstances, both general negligence and specific negligence may be issues in the alternative for the jury. The possibility is provided in Illinois Pattern Instruction, 22.02, although the Comment cites no authority. The Supreme Court did not have occasion to discuss the question in Metz or in subsequent cases presented to us. In Erckman v. Northern Illinois Gas Co., 61 Ill App2d 137, 210 NE2d 42 (1965), it was held to be error to instruct in the language of IPI 22.02 for the reason that there was no pleading of specific negligence, but in expectation of another trial the court pointed out that the inference of negligence arising under the doctrine of res ipsa loquitur was not necessarily inconsistent with proof of specific negligence, for to hold that proof of specific negligence precludes the application of the res ipsa loquitur doctrine:

“. . . could lead to the absurd result of weak proof of specific negligence voiding a strong inference of general negligence. ... If there is an inference of general negligence and proof of specific negligence, but reasonable men may differ as to the effect of this evidence, it should then be for a jury to determine under which theory, if any, the plaintiff should prevail.”

In Turner v. Wallace, 71 Ill App2d 160, 217 NE2d 11 (1966), it is stated that if at the close of the case, the evidence fails to reveal the specific forces which produced the injury and there is sufficient proof to certain affirmative findings on each of the necessary elements from which the inference of negligence is permitted, the jury should be instructed in terms of res ipsa loquitur as well as specific negligence, but that if the evidence from all sources shows the facts and reveals the precise causes of the injury there remains nothing for inference and' the res ipsa instruction should not be given. To the same effect is Decatur & Macon County Hospital Ass’n v. Erie City, 75 Ill App2d 144, 220 NE2d 590. See also Prosser, Law of Torts, 2nd ed, c 7, § 43, p 214.

It appears that reasonable men might differ as to the effect of the evidence found in this record and the trial court did not err in instructing both as to general negligence and specific negligence.

Defendant tendered instructions upon the theories of negligence submitted to the jury in the language recommended in IPI 21.02 and 22.02. The court refused such instructions and gave plaintiff’s instruction deemed to be a modified form of IPI 22.02 in the following language:

“The Plaintiff has the burden of proving her case by the preponderance of the evidence; under our law she may attempt to prove her case in either of two ways. She may either prove each of the following propositions:
“First: That Kenyon Freer, deceased, was injured, and as a result of said injuries he died on May 14, 1964.
“Second: That the said injuries were received from an automobile which was under the Defendant’s control.
“Third: That in the normal course of events, the injury would not have occurred if the Defendant had used ordinary care while the automobile was under her control.
“If you find that each of these propositions had been proved, the law permits you to infer from them that the Defendant was negligent with respect to the automobile while it was under her control or management. If you do draw such an inference your verdict must be for the Plaintiff if any injury or damage proximately resulted therefrom.
“Or, on the other hand, Plaintiff may prove her case by proving each of the following propositions:
“First: That the Defendant drove her car in such a manner that it ran off the left side of her right half of the roadway onto the median strip dividing said highway or that in attempting to return to the paved portion of the highway she turned the car driven by her suddenly and more sharply than was reasonable or prudent and that in so acting, or failing to act, the Defendant was negligent.
“Second: That Kenyon Freer was injured and as a result of said injuries died on May 14,1964.
“Third: That the negligence of the Defendant was a proximate cause of the injuries to the Plaintiff.
“If you find from your consideration of all the evidence that each of these propositions has been proved, then your verdict should be for the Plaintiff.
“But, if you find from your consideration of all of the evidence that Plaintiff has failed to prove a proposition of each manner of proof then your verdict should be for the Defendant.”

The instruction as given demonstrates the difficulty of achieving simple clarity in describing the burden of proof for the respective theories of liability originally pleaded in separate counts for the court and lawyers, but presented to the jury without distinguishing such. The consolidated form of instruction used requires the omission of language specifically recommended in the Pattern instructions, both as to the burden of proof for specific negligence alleged (IPI 21.02), and general negligence alleged (IPI 22.01), in order to avoid the ambiguity which the omitted language in each instruction would have upon the other instruction.

The defendant urges that there is particular prejudice in the omission from the instruction of the burden of proof on general negligence (IPI 22.01) of the language:

“But if, on the other hand, you find that any of these propositions has not been proved, or if you find that the defendant used ordinary care for the safety of others in his management of the-(instrumentality), then your verdict should be for the defendant.”

This objection must be given serious consideration in that the language, “. . . the law permits you to infer . . . that the defendant was negligent . . . ,” does not make clear that such inference is not to be made by the jury but is permissive only, and that it is for the jury to decide whether or not such inference should, in fact, be drawn from the evidence. The language provided in the form of instruction upon the issue of general negligence (IPI 22.01), but omitted here, contributes to the balance and clarity of the law to be stated to the jury.

The final paragraph of the given instruction purports to supply the statement of law which has been omitted from the separate instructions (IPI 21.02 and IPI 22.01). The language actually used requires the most precise reading and it appears that repeated reading by the several jurors would not necessarily produce common understanding of its application. The submission of general and specific negligence in the alternative as proposed in IPI 22.02 contemplates that the issue of specific negligence shall be submitted separately as in IPI 21.02. The modified form employed in this case does not present the issues in the simple language contemplated in the forms of pattern jury instructions.

We have not overlooked the omission of the element of decedent’s due care in each aspect of the given instruction. Upon this record, the issue was not raised on appeal.

The jury returned a verdict upon the administrator’s count for funeral expenses in the sum of $1,045.33. Upon its own motion, the court ordered a remittitur in the sum of $868 and plaintiff appeals from such order. The apparent reason for the court’s action was that an answer to certain interrogatories by plaintiff’s administrator disclosed that she received from the defendant’s insurer the sum of $862 for funeral expense and $33.30 as grave expense. Plaintiff relies upon Saunders v. Schultz, 20 H12d 301,170 NE2d 163. In that case a widow sued for funeral and medical expenses for which she was liable, no claim having been made by decedent’s estate. Defendant urged error in the sustaining of objections to interrogatories as to available insurance to pay the expenses of the widow and argued that recovery should be limited to amounts paid from her own funds over and above the proceeds of such insurance. The court noted that plaintiff’s medical and hospital insurance was a contractual benefit procured by plaintiff or plaintiff’s decedent which was not for the benefit of the defendant tort-feasor, and that such proceeds as were received did not relieve the defendant of his liability for the entire amount. The court cited Restatement of the Law of Torts, § 920 (e). That citation speaks in the context of the injured party’s proceeds from “. . . previous contractual arrangements made for his own benefit, not the tortfeasor’s.” Such proceeds are a part of what has been termed “collateral sources.”

Here, however, the plaintiff received the benefit under the provisions of the insurance procured by defendant for her possible indemnity which it was her object to secure. Without such remittitur, upon a judgment within the limits of defendant’s policy, plaintiff would recover twice for the same expense from a fund created by defendant.

It would appear to be reasonable that if defendant had personally volunteered to pay the expenses at issue upon subsequent litigation it should be fair that she be permitted to claim credit for the amount paid. It appears that the majority of courts hold that funeral and medical payments paid by decedent’s insurance are not within the doctrine of “collateral sources.” See cases collected 11 ALRBd 1115.

The case is reversed and remanded for further proceedings not inconsistent with the conclusions stated.

Reversed and remanded.

SMITH, J., concurs.

CRAVEN, J., dissents.

CRAVEN, J.,

dissenting:

My colleagues reverse and remand this case for a new trial so that the jury may determine whether the relationship between the decedent and the defendant was that of guest or passenger. As I view this record, the trial court was correct in determining that the decedent was a passenger as a matter of law. Although other matters are discussed in the opinion, the reversal and remandment are predicated upon this single issue. I must respectfully dissent.

A guest is one who is invited, directly or by implication, to enjoy hospitality of the driver and who accepts the hospitality for either business or pleasure without making any return. See Miller v. Miller, 395 Ill 273, 69 NE2d 878 (1946). The facts in this record disclose that the decedent was transported to and from work by the defendant each working day except on Mondays when the decedent drove his own car in order to facilitate his attendance at National Guard drills. According to the evidence, the decedent and the defendant’s son, who were friends, talked the defendant into this arrangement. It seems to me that the evidence is uncontradicted that the decedent purchased gasoline for the defendant’s car with some semblance of regularity. A conflict in the evidence relates solely to the frequency of the purchase rather than to the fact of the purchase, and as I view it, the frequency of purchase is immaterial.

In Summers v. Summers, 40 Ill2d 338, 239 NE2d 795 (1968), the Supreme Court reviewed the origin and purpose of the guest statute (Ill Rev Stats 1965, c 95%, par 9-201 et seq.) and the court held, as a matter of law, that an owner-passenger in an automobile was not a guest within the meaning of the guest statute. In its discussion of the statute, the court clearly established a rule of strict construction of our guest statute as being in derogation of a common-law remedy.

The evidence in this case establishes that there was an arrangement for transportation; that the arrangement contemplated regular and continuous transportation to and from work; that the decedent regularly set aside money to purchase gasoline; that the arrangement was mutually advantageous from an economic point of view; and that the arrangement was initiated and continued entirely without reference to any social aspects or any gratuitous hospitality. As I view it, the decedent was a passenger as a matter of law. McNanna v. Gach, 51 Ill App2d 276, 201 NE2d 191 (1st Dist 1964). Therefore, I dissent from that portion of the opinion that reverses and remands this case for a jury determination of the decedent’s status.


text:
    Orville B. Gorin, et al., Plaintiffs, v. James M. McFarland, et al., Defendants. R. Wayne Gill, J. W. Patterson, and William G. Traver, Plaintiffs-Appellees, v. Lee Boland, Defendant-Appellant.
    Gen. No. 11,022.
    Fourth District.
    May 13, 1969.

      Lee Boland, pro se, of Decatur, and Harris and Harris, of Lincoln (Homer B. Harris, Jr. and Lee Boland, of counsel), for appellants.
    Downing, Smith, Jorgenson & Uhl, of Decatur (Elbert S. Smith, of counsel), for appellees.
   SMITH, J.

To function lawfully, must the five trustees administering the charitable trust created by the will of James Millikin act unanimously or may they act by a majority vote of the trustees? The trial court held that a majority vote was sufficient and defendant Boland, one of the trustees, appeals. The trial court’s decree is in error, he says, because (a) declaratory judgment relief is neither appropriately alleged nor adequately proven, and (b) the law requires the Millikin testamentary trustees to act by unanimous vote.

When this case was here before, it was reversed and remanded for further proceedings because of procedural infirmities. 80 Ill App2d 398, 224 NE2d 615. Those infirmities have been removed and we now consider the two issues presented on their merits. Appellant Boland readily concedes that testamentary trustees may seek judicial aid in directing them in their duties in a court of equity or may file a suit for a will construction. Neither course was pursued by the plaintiffs-appeHees, but instead they sought a declaratory judgment of their rights. Appellant Boland likewise concedes that an “actual controversy” as understood in the barber shop, on the street corner or at the breakfast table does exist but says this is not sufficient under HI Rev Stats 1965, c 110, § 57.1, for the reason that the issue as here presented is not a justiciable issue. It is not a justiciable issue within the language of the statute for the reason that no actual controversy exists. It is asserted that to have an actual controversy the parties must have adverse legal interests in property or personal rights and seek an adjudication of them. There are no property rights of any of the trustees involved here and hence there is no actual justiciable controversy. In support of this position, appellant cites the Exchange Nat. Bank of Chicago, Trustee v. The County of Cook, 6 Ill2d 419, 129 NE2d 1. He lifts bodily out of language on page 422 of the Illinois citation and page 3 of the Northeastern citation, the words “parties having adverse legal interests.” This same case further states “A ‘controversy’ in this sense must be one that is appropriate for judicial determination. ... A justiciable controversy is thus distinguished from a difference or dispute of a hypothetical or abstract character; from one that is academic or moot.” There seems to be little doubt but that the relief here sought through declaratory judgment could be sought either through a suit in equity for direction or through a suit to construe the will. We find some difficulty in labeling the issue here presented non justiciable when all parties concede that it is justiciable in either of the two types of suits mentioned. One of the assets of the trust is 55% of the capital stock of Millikin National Bank and the trustees are charged with the duty of voting that stock for the election of directors in that bank. It appears that the inability to agree in the performance of this duty was responsible in part at least for the precipitation of this lawsuit. On this record, it is unrealistic to find that there is no actual controversy between the parties or that the controversy is not a proper subject for judicial determination. The trustees are frozen on dead center in the performance of an important duty under the Millikin Trust. While declaratory judgment was not designed to supplant existing remedies, it is an alternative or additional remedy to facilitate the administration of justice and to fix and determine right without waiting for the ax to fall. LaSalle Cas. Co. v. Lobono, 93 Ill App2d 114, 236 NE2d 405. It is an appropriate remedy here to unfreeze the frozen.

The Millikin will created both private and public or charitable trusts and has been in operation since 1909. In 1941, the private trust terminated and the charitable trust has continued in operation since that time. Until January of 1966, the trustees had acted by unanimous action. The Millikin will does not affirmatively require unanimous action. Whether such unanimity resulted from the belief that the will required them to so act or that the law required them to so act or whether they labored until unanimity was reached is not clear from this record. Whatever may have been the belief or whatever may have been the practice, neither acquire immortality unless immortality is given them in the instrument creating the trust. In Restatement of the Law, Trusts 2d, 275, §383 it is stated: “If there are several trustees of a charitable trust, the powers conferred upon them can properly be exercised by a majority of the trustees, unless it is otherwise provided by the terms of the trust.” A perusal of the text writers on the subject, such as Scott, Bogart, Pomeroy and Perry, indicates that this is the accepted view in this country. In Illinois, that view has been recognized by our legislature in 111 Rev Stats 1967, c 148, § 33, where is stated “when more than two trustees are required to execute a trust, a majority of the trustees shall be competent to act in all cases, after written notice of the time and place of the meeting at which such contemplated action is to be taken has been given to each of the trustees at least five days before any action is taken, unless the instrument or authority creating the trust shall otherwise provide.” The will of James Millikin does not in express language or by reasonable interpretation otherwise provide. The defendants insist that the rules thus pronounced are academic rules which are interesting, but do not apply to testamentary trusts. Any doubt on this subject is laid to rest by § 32.1c of the foregoing legislative enactment which defines a trust as one created by will, deed, agreement, declaration, written instrument or in any lawful manner and that the word “trustee” of any such trust means the trustee, or any successor trustee whether appointed by the instrument creating the trust, by order of court or otherwise. Since the will of James Millikin does not specifically preclude the application of this statute, there is little persuasive reason for denying full effect to this public policy as declared by the legislature. Both sides agree that Mr. Millikin was presumed to know the law; both sides agree that a majority of trustees in a charitable trust had the power to act at common law; however, they part company on the question of whether or not that common law rule applies to a testamentary trust. Defendant appellant points out the fact that on the question of compensation,- the legislature has distinguished between private trusts, charitable and religious trusts and testamentary trusts. Be that as it may, it is not persuasive so far as the statute previously quoted is concerned which makes no such distinction on the precise question here involved. For practical reasons as well as the fulfillment of sound legal principles, the decree of the trial court should be and it is hereby affirmed.

Affirmed.

TRAPP, P. J. and CRAVEN, J., concur.


text:
    United Travel Service, Inc., an Illinois Corporation, Plaintiff-Appellee, v. Virginia L. Weber, Individually, and as Director of Europa Travel, Inc., a Foreign Corporation Qualified To Do Business in the State of Illinois, Defendant-Appellant.
    Gen. No. 11,109.
    Fourth District.
    May 13, 1969.
    Duane L. Traynor, Traynor & Hendricks, of Springfield, for appellant.
    R. Garrett Phillips, of Springfield, for appellee.
   CRAVEN, J.,

delivered the opinion of the court.

Defendant-appellant, Virginia Weber, then aged 18 years, and still in high school, was employed — initially on a part-time basis — by United Travel Service, Inc., a travel agency in Springfield. After she had been with United for about two and one-half months, she was asked to prepare and sign a contract which provided that in consideration of her employment and training by United, appellant agreed that at such time as she may sever her connections with United for any cause she would not engage in the travel-service business either individually or in the employment of any other travel service in any capacity in either Decatur, Illinois, or Springfield, Illinois, or within a radius of 60 miles from Decatur or Springfield, for a period of two years thereafter. The contract, by its terms, further provided that she would not disclose the names of clients with whom she had dealt for the agency nor attempt to divert any of the clients from the agency.

The contract was dated August 13, 1965. After the execution of the contract the defendant continued her employment with United. Defendant submitted her letter of resignation on March 20, 1968, to be effective April 20, 1968. Other employees of United likewise submitted resignations at about this same time. Those employees had not signed a contract, although an oral contract was alleged. The defendant and the other employees, together with other persons unrelated to the United operation, had formed Europa Travel Inc., a corporation, to engage in the travel-agency business. The defendant was its president, a director, and apparently one of its principal movers.

There is no controversy but that the defendant secured her training and knowledge of the travel business while employed by United. This training consisted of on-the-job training, and while so employed and as part of her training she engaged in some travel through arrangements by United, and in certain instances United paid all or part of the tab.

Europa Travel was incorporated on March 12, 1968. Its office is in Springfield, some mile and a quarter from the United office. The evidence is rather clear that at least on one occasion the defendant or her associates, now engaged in Europa, solicited a client known to be a client of United. The effort to obtain the travel-tour business of that client was unsuccessful. Europa also, by its advertising, solicited persons who were or at least had been clients of United.

In January of 1968, United filed a complaint for injunction and for damages. The defendant, as well as two former employees of United, all of whom are now officers and directors of Europa, were named as defendants. As to the defendant, the plaintiff asserted the violation of the terms and provisions of the agreement of the employment contract. Plaintiff sought a preliminary and permanent injunction against all of the defendants, seeking to terminate their travel-agency business within 60 miles of Decatur and Springfield until the two-year period had expired, and seeking to enjoin the solicitation of any clients who had dealings with the plaintiff while the defendant was in its employ. Damages to cover loss of profits were also sought by the complaint.

At the close of the plaintiff’s evidence, the trial court dismissed the action as to all defendants except Virginia Weber. Ultimately, a permanent injunction was issued enjoining the defendant from continuing as an officer or director of Europa, or from entering into the travel-agency business either on her own account or in the employment of any other travel service in any capacity for a period of two years within the territory specified in the agreement. The injunction also. prohibited solicitation of clients of plaintiff. No damages were assessed.

This appeal is from the permanent injunction. There is no cross-appeal as to the issue of damages nor as to the action regarding the other defendants.

In Central Keystone Plating of Illinois, Inc. v. Hutchison, 62 Ill App2d 188, 210 NE2d 239 (4th Dist 1965), we had occasion to review a case involving a contract restraining an employee from competition with his employer after the termination of the employment. In that case the employee was a sales person or sales manager who traveled an extensive area soliciting customers. The trial court had dismissed the action holding the contract to be unenforceable and invalid. We reversed and remanded for a hearing on the merits. We there stated (at 191-192 (210 NE2d at 241-242)):

“Covenants ancillary to an employment contract restricting employees or agents from unreasonable competition with a former employer are permissible. They are not per se contrary to public policy and therefore void. House of Vision, Inc. v. Hiyane, 58 Ill App2d 431, 208 NE2d 390. 313-15 Restatement of Contracts. See also 43 ALR2d 93. The rule in this state, as well as most jurisdictions, is that the covenant must be reasonable as to the employee, the employer and the public. Reasonableness is to be determined from the facts and circumstances of each case, and of necessity varies as to area, time and the respective interests of the parties, as well as the degree of fiduciary or confidential relationship existing between them.
“The cases collected in the cited annotation, however, almost uniformly hold that excluding service occupations from an entire state by such a covenant is unreasonable. Territorial restrictions, as to salesmen or route men, greater than the area that was served by them on behalf of the former employer are held unenforceable. 43 ALR2d 118. The rationale of the collected cases is that the employee should be excluded only from territory in which, as a result of his employment, he was able to establish a certain relationship with the employer’s customers.
“Where there are special circumstances, such as customer lists, customer contacts, trade secrets or other confidential information, there is a greater willingness to restrain competition. Solar Textiles Co. v. Fortino, 46 Ill App2d 436, 196 NE2d 719 (1964); Smithereen Co. v. Renfroe, 325 Ill App 229, 59 NE2d 545 (1945).”

In the Central Keystone Plating case there was an allegation of the existence of special circumstances and that allegation would, of course, stand as being admitted by the motion.

Subsequent to our opinion in that case, the Illinois Supreme Court, in House of Vision, Inc. v. Hiyane, 37 Ill2d 32, 225 NE2d 21 (1967), considered a similar covenant ancillary to an employment contract and held (at 39 (225 NE2d at 25)):

“To stake out unrealistic boundaries in time and space, as the employer did in this case, is to impose upon an employee the risk of proceeding at his peril, or the burden of expensive litigation to ascertain the scope of his obligation. While we do not hold that a court of equity may never modify the restraints embodied in a contract of this type and enforce them as modified, the fairness of the restraint initially imposed is a relevant consideration to a court of equity. We conclude that the restrictions in the employment contract were not reasonably necessary for the protection of the plaintiff.”

In this case counsel for the parties have submitted able briefs collecting cases of diverse points of view involving similar, but not identical, fact situations, and these cases clearly demonstrate the difficulty of announcing hard-and-fast rules in this area. For instance, see the opinion in Arthur Murray Dance Studios of Cleveland, Inc. v. Witter (Ohio), 105 NE2d 685 (1952).

In our review of this record, we find no indication of customer contact that would indicate that the defendant had such dominion over the customers as to cause them to automatically move their travel-agency business from United to Europa. This record does not demonstrate the existence of any trade secrets, the property of United, that were imparted by it to the defendant. Indeed, there is no suggestion that United’s travel-agency business was in substance or in procedure different from that of travel agencies generally. That which the defendant learned from United could be learned at other times and other places. We find no indication of secrets of the particular employer as distinguished from the general trade. The covenant thus becomes one whose purpose appears to prevent competition per se. Professional Business Management, Inc. v. Clark, 83 Ill App2d 236, 227 NE2d 371 (3d Dist 1967).

In view of this and the clear direction contained in the House of Vision case that the fairness of the restraint initially imposed is a relevant consideration to a court of equity, it was error for the circuit court to issue an injunction. The restrictions in the employment contract were not reasonably necessary for the protection of the plaintiff, were unreasonable as to area, and no damages were found by the circuit court. The decree of the Circuit Court of Sangamon County is reversed and the cause is remanded to that court with directions to dismiss the complaint for want of equity.

Reversed and remanded with directions.

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


author: PRESIDING JUSTICE MORAN

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Denny Hayes, Defendant-Appellant.
    Gen. No. 68-109.
    Second District.
    May 15, 1969.
    John F. McNamara and John T. Beynon, of Rockford, for appellant.
    Philip G. Reinhard, State’s Attorney of Winnebago County, of Rockford, and John C. Tower, Assistant State’s Attorney, for appellee.
   PRESIDING JUSTICE MORAN

delivered the opinion of the court.

On June 25, 1967, the defendant, Dennis (Denny) Hayes, was arrested for the crime of theft. Thereafter, on October 19,1967, he pled guilty to the charge. Various proceedings, not essential to a determination of this appeal, took place and on June 10, 1968, the defendant was denied probation and sentenced to the penitentiary for a term of 1 to 10 years. Because emergency hospital care was required, he was taken to the penitentiary immediately after sentence was pronounced.

On July 26, 1968, the defendant filed his notice of appeal from both the judgments of October 19, 1967, and June 10, 1968. Thereafter, on November 25, 1968, the defendant, through his attorney, the public defender, filed a petition to amend the mittimus. The petition, in addition to the matters set forth above, alleged that at the time of sentencing “the trial court knew how long the defendant had been in custody pending sentence and took this into consideration in sentencing the defendant; that the warden has refused to allow the defendant credit for the time served in the Winnebago County Jail; that the mittimus does not specify that the time to be served on the sentence is to begin as of the original date of incarceration, June 25, 1967; and, that unless the mittimus is amended to show that the sentence is to start as of the initial date of incarceration, June 27,1967, the defendant will suffer irreparable harm in his right to due process under the 5th amendment to the U. S. Constitution and in violation of his right to be protected against cruel and unusual punishment as guaranteed by the 8th amendment to the U. S. Constitution.”

The following day, November 26, 1968, the public defender and the state’s attorney appeared before the court (the defendant not being present) and after a short discussion was had, there being no witnesses sworn and examined or other evidence introduced, the following colloquy took place between the court and counsel:

THE COURT: “You say he was in the Winnebago County jail from what date ?”
MR. McNAMARA: “June 25, 1967 until the day you sentenced him, June 10,1968.”
THE COURT: “I consider the fact he tried to swallow razor blades on two different occasions, and on one occasion it was very expensive to the County because he had to go to the hospital and be there for some time, and they had to hire someone to watch him during that time, and it is certainly improper conduct for him to swallow three or four razor blades on the day he came up for his hearing.
“And if I have the discretion in the matter, I will not allow any time for his confinement in the jail, in the County jail.
“He has got to be there at least long enough so that they can find out what does or does not make him click.”
MR. McNAMARA: “I can’t change the Court’s mind, but the Court could have sentenced him from two to ten years if that had been your wish.”
THE COURT: “Well, that is my decision.”
MR. McNAMARA: “Yes, sir. Thank you very much.
“I would like that this be transcribed to include in the record of appeal.
“We have already filed that with the Court, the prior record for our appeal, but we will re-submit it with this included, or whatever the procedure is.”
THE COURT: “Yes. You may do that. You arrange for that.”

A minute order discloses that the petition was denied.

In sequence the briefs of the parties were filed in this Court. Defendant’s brief states that there is but one issue: — Did the court err in denying the petition to amend the mittimus to indicate that the defendant should receive credit on his sentence for the period of time he was confined in the County jail awaiting to answer the charge for which he was eventually incarcerated ?

This court, during oral argument, brought to the attention of the defendant the fact that his notice of appeal did not include the order of the trial court upon which he based his appeal. Thereafter, upon stipulation of the parties, leave was granted to amend the notice of appeal in accordance with Supreme Court Rule 606(d) so as to include the order of November 26,1968.

Although neither party has raised the question, this Court believes it to be obvious that the trial court was without jurisdiction to pass on the petition filed before it some 169 days after judgment and execution upon • such judgment was had.

“When a person accused of a crime has been convicted, sentenced and delivered into the custody of the proper officer of the penitentiary under a mittimus, the court rendering the judgment and imposing the sentence loses jurisdiction over the case and is without power to vacate, set aside or modify the judgment.” The People v. Wakeland, 15 Ill2d 265, 269, 154 NE2d 245 (1958); The People v. Putnam, 398 Ill 421, 425, 76 NE2d 183 (1947); and The People v. McKinley, 371 Ill 190, 193, 20 NE2d 498 (1939).

Therefore the judgment of the trial court denying relief prayed for in the petition to amend the mittimus is affirmed.

Judgment affirmed.

ABRAHAMSON and SEIDENFELD, JJ., concur.


author: JUSTICE SEIDENFELD.

text:
    Robert C. Ransom, Plaintiff-Appellant, v. Dr. William G. Cummings, et al., Defendants-Appellees.
    Gen. No. 68-143. (Abstract of Decision.)
    Second District.
    May 15, 1969.
    Gatenbey, Spuller, Law and Johnson, of Chicago, for appellant; Whitman, Kauffman and Couri, of Winnetka, for appellee.
   Opinion by

JUSTICE SEIDENFELD.

Not to be published in full.