text:
    People of the State of Illinois, Appellant, v. Leslie B. Jones (Impleaded), Appellee.
    Gen. No. 51,776.
    First District, Second Division.
    October 29, 1968.

      John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Joseph T. Garlovsky, Assistant State’s Attorneys, of counsel), for appellant.
    No brief for appellee.
   MR. JUSTICE LYONS

delivered the opinion of the court.

This is an appeal by the People, in accordance with Illinois Supreme Court Rule 604(a) (Ill Rev Stats (1967) c 110A, § 604(a)), from an order of the trial court granting the motion of the defendant for discharge pursuant to the speedy trial provisions of the Illinois Code of Griminal Procedure. See Ill Rev Stats (1965), c 38, § 103-5 (a) and (d). The record indicates this chronology of events.

JANUARY 25, 1966 — defendant was arrested with another man for murder and was never admitted to bail.
FEBRUARY 21, 1966 — defendant was indicted jointly with the other man for murder.
FEBRUARY 28, 1966 — defendant was arraigned. He declared his indigency, the public defender was appointed to represent him, a plea of not guilty was entered, and the case was assigned by the chief judge to another judge for trial. On this same day, the trial judge granted the motion of the defendant for a list of witnesses to any statements made by the defendant, said list to be furnished the defendant by the State within 10 days. By order of court, the cause was continued to March 15,1966.
MARCH 15, 1966 — by order of court, the cause was continued to March 31,1966.
MARCH 22, 1966 — defendant, by his appointed counsel, filed a written motion for severance. The court ordered that the hearing on said motion be continued to March 31,1966.
MARCH 31, 1966 — after a full hearing, the court granted the motion of the defendant Jones for a severance and, by order of court, the cause was continued to April 20,1966.

Thereafter, by order of court, the cause was continued several times until July 25,1966.

On July 25, 1966, the defendant, by his appointed counsel, filed a written motion for discharge alleging that he was never admitted to bail; he was not brought to trial within 120 days from the date of his arrest as required by section 103-5(a) of the Code of Criminal Procedure; and he did not cause this delay. After a full hearing, the court granted the motion of the defendant for discharge and entered an order to that effect thereby freeing the defendant from custody. The People appeal from this order.

It is settled law in Illinois that the State may appeal from an order discharging the defendant from custody due to the failure of the State to accord him a speedy trial in accordance with the 120-day standard found in Ill Rev Stats (1965), c 38, § 103-5(a). The courts have stated that the granting of such an order is in substance and effect a dismissal of the indictment, an order from which the State may appeal. See People v. Petropoulos, 34 Ill2d 179, 214 NE2d 765 (1966). The right of the State to appeal in such a case as this one has now been codified in Ill Rev Stats (1967), c 110A, § 604(a).

The right of every accused to receive a speedy trial is guaranteed by art II, § 9 of the Illinois Constitution and is given concreteness and specificity by our legislature in Ill Rev Stats (1965), c 38, § 103-5 (a) and (d), which provide as follows:

(a) Every person in custody in this State for an alleged offense shall be tried by the court having jurisdiction within 120 days from the date he was taken into custody unless delay is occasioned by the defendant, by a competency hearing, or by an interlocutory appeal.
(d) Every person not tried in accordance with sub-sections (a), ... of this Section shall be discharged from custody. . . .

It is undisputed in the instant case that the defendant was never admitted to bail and was not brought to trial within 120 days following his arrest. However, the State argues that the “delay was occasioned by the defendant” in gaining a severance, thereby “tolling” the running of the statutory period and causing it to run anew from the date to which the cause was continued by the court; namely, April 20, 1966, after it had granted the defendant’s motion for a severance on March 31,1966.

The trial court agreed with the State that the accused had “tolled” the running of the statutory period by his motion for a severance, a rule established in Illinois law since the case of People ex rel. Woodruff v. Matson, 129 Ill 591, 22 NE 456 (1889), but ruled that the new 120-day statutory period began to run from the date the defendant’s motion for a severance was filed; i. e., March 22, 1966, and not from the date his motion was granted, March 31, 1966, or the date to which the cause was continued, April 20, 1966, after his motion had been granted. Since the defendant was not brought to trial on or before July 20, 1966, which would have been 120 days from the date he filed his motion for a severance, the trial court ruled on July 25, 1966, that he must be discharged from custody.

No cases have been cited nor have we found any cases in Illinois or any other jurisdiction holding that the computation of a statutory period ensuring a speedy trial to the accused is to begin with the date on which the motion for severance is filed or that said computation is to begin with the date to which the cause is continued after the motion for a severance has been granted. Yet, that is the gravamen of this case. The case of People ex rel. Woodruff v. Matson, 129 Ill 591, 22 NE 456 (1889), can be cited for the proposition that a joint defendant tolls the running of the statutory period ensuring him a speedy trial by seeking and gaining a severance, but the case is silent as to the method to be used by reviewing courts in computing the beginning of the new statutory period after the defendant has gained the severance. Our decision must be based, therefore, on sound judicial administration coupled with analogy drawn from somewhat similar cases in this area of criminal law.

Initially, it must be stated that the mere filing of a motion for severance does not delay the administration of criminal justice. Such a motion may be heard on its merits instanter or the trial court, as it did in the instant case, may set it for hearing on the same day as it had earlier set the case of the multiple defendants for trial. If the trial court then denied the motion for severance, the trial of all the joint defendants would commence immediately without any delay in the judicial process. If the trial court granted the motion for severance, it could no longer try the joint defendants simultaneously. Rather than penalize the defendants who had not asked for the severance by giving them a later date for trial thereby keeping them incarcerated for a longer period of time before they could establish their innocence, assuming they were not yet admitted to bail, the trial court could, as it did in this case, continue the case only as to the defendant who had sought and gained the severance, giving only that party defendant a later trial date. See People v. Perry, 23 Ill2d 147, 177 NE2d 323 (1961). The trial of the joint defendants who had not sought a severance would then begin instanter on the date originally set for trial.

Any delay in the trial of the defendant who had sought and gained the severance would have been occasioned by his voluntary action, assuming that the trial court did not allow an unreasonable length of time to lapse between the date that the motion for severance was filed and the date that it was heard on its merits.

It is now settled law in Elinois that reviewing courts, in ruling upon motions for discharge pursuant to the speedy trial provisions of our Code of Criminal Procedure, look to the date to which the cause is continued when the defendant has occasioned the delay by his motion for a continuance, People v. Rogers, 26 Ill2d 599, 188 NE2d 22 (1963); or by his request for substituted defense counsel, People v. Stahl, 26 Ill2d 403, 186 NE2d 349 (1962); or by his motions testing the legal sufficiency of the indictment, People v. Hamby, 27 Ill2d 493, 190 NE2d 289 (1963), cert den 372 US 980, 83 S Ct 1116; or by his successful motion for a change of venue, People v. Williams (Abstract), 31 Ill App2d 230, 175 NE2d 576 (1961).

By his successful motion for a severance, the defendant created the necessity for postponement of his trial which precludes him from availing himself of the statute upon which he now attempts to rely. In our opinion, when a defendant seeks and gains a severance and is accordingly given a later trial date, the court, in computing the statutory period allowed all defendants for a speedy trial, must begin with the date to which the cause is continued after the granting of such a motion for severance. This holding is subject to the caveat that an unreasonable length of time must not elapse between the date that the motion for severance is filed and the date that it is heard on its merits. The State could not therefore use the motion of the defendant for a severance to hold the proceedings in abeyance as an act of oppression.

The record in this case indicates that on March 31, 1966, after a full hearing, the trial court granted the motion of the defendant for a severance and continued the cause to April 20, 1966, with subpoenas. Hence, the State would have 120 days from this latter date, or until August 18, 1966, to bring the defendant to trial. The trial court erred in discharging the defendant from custody on July 25,1966.

The order discharging the defendant from custody is reversed; the indictment is ordered to be reinstated; and the cause is remanded for further proceedings pursuant to law.

Order reversed and cause remanded with directions.

BURKE, P. J. and McNAMARA, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Willie Osborne, Defendant-Appellant.
    Gen. No. 52,159. (Abstract of Decision.)
    First District, Second Division.
    October 29, 1968.
    Gerald W. Getty, Public Defender of Cook County, of Chicago (Herbert Becker, Marshall J. Hartman, and James J. Doherty, Assistant Public Defenders, of counsel), for appellant; John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and James R. Truschke, Assistant State’s Attorneys, of counsel), for appellee.
   Opinion by PRESIDING JUSTICE BURKE. Not to be published in full.


author: MR. PRESIDING JUSTICE BURKE

text:
    Stoller Lumber Co., Inc., Plaintiff-Appellant, v. Cosmopolitan National Bank as Trustee, Under Trust #14191, Travis Clayton, Roselle Clayton, Lincoln Park Federal Savings and Loan Ass’n, a Corporation, “Unknown Owners,” Defendants-Appellees.
    Gen. No. 53,060.
    First District, Second Division.
    October 29, 1968.
    Stanley Stoller, of Chicago, for appellant.
    No brief filed for appellees.
   MR. PRESIDING JUSTICE BURKE

delivered the opinion of the court:

A final decree to enforce a mechanic’s lien claim was entered on January 29, 1968. On February 9, 1968, the decree was vacated. Plaintiff, appealing, asks that the order vacating the decree be reversed and that the decree be reinstated.

Section 50(5) of the Civil Practice Act provides that the court may on motion filed within thirty days after entry thereof, set aside any final order, judgment or decree upon any terms and conditions that shall be reasonable. There is no appeal from an order entered pursuant to this section. See City of Park Ridge v. Murphy, 258 Ill 365, 101 NE 524; Natale v. Enterprise Pub. Co., 82 Ill App2d 105, 227 NE2d 84, and Tinkoff v. Wharton, 344 Ill App 40, 99 NE2d 915. The order vacating the decree, entered within thirty days from the entry of the decree, was interlocutory and not appealable. Therefore the appeal is dismissed.

Appeal dismissed.

McNAMARA and LYONS, JJ., concur.


author: MR. PRESIDING JUSTICE McCORMICK

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Marcel Whittaker, Defendant-Appellant.
    Gen. No. 52,742.
    First District, Fourth Division.
    October 30, 1968.

      Patrick A. Barton, of Chicago, for appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and James Truschke, Assistant State’s Attorneys, of counsel), for appellee.
   MR. PRESIDING JUSTICE McCORMICK

delivered the opinion of the court.

This is an appeal from an order of the court sentencing the defendant after a violation of probation.

On April 28, 1965, Marcel Whittaker (hereafter referred to as the appellant) was indicted for aggravated battery in violation of chapter 38, section 12-4 of Illinois Revised Statutes 1963. The alleged battery was committed on January 12, 1965, upon Barbara Gillum, a semi-invalid cousin of appellant’s wife. At his arraignment on May 12,1965, the appellant pleaded not guilty.

The cause came on for hearing on September 29, 1965, and at that time appellant’s counsel stated that the appellant would withdraw the plea of not guilty and enter a plea of guilty. The court properly explained to the appellant his right to a trial by jury, and asked him whether or not he had struck the woman, to which appellant replied that he had. The court again inquired if he understood that on his plea of guilty he would be placed on probation with a period of time in the County Jail, and that if he violated the conditions of his probation it would be revoked and he would be sentenced to the penitentiary for as long as ten years. The appellant answered that he understood and still wanted to plead guilty. The court accepted the plea.

The appellant’s application for probation was filed and the court entered an order granting probation for a period of five years. The terms of the probation were that he would not violate any criminal law of the State of Illinois; that he would not leave the State without permission; that he would spend the first 60 days of his probation in County Jail; that he should make a monthly report of his whereabouts, conduct and employment, and furnish such other information relating to the conditions of his probation as requested; and that he would enter into a recognizance in the sum of $500.

On January 16, 1967, an application for warrant was filed by the Probation Department, alleging that appellant had violated his probation in that on January 11, 1967, he appeared before a judge of the Circuit Court, charged with murder and was held to the Grand Jury. The warrant was issued and bail was set at $5,000.

On June 21, 1967, the court entered a rule to show cause why appellant’s probation should not be terminated. Bail was reduced to $2,500, and the case was set for hearing on June 26, 1967. The probation officer was ordered to deliver to appellant a copy of the rule to show cause, together with copy of the report by the probation officer of the violation by said appellant of the conditions of his probation.

A further Probation Department report made to the judge to whom the case had been assigned stated that on December 3, 1966, the appellant was arrested on the street for aggravated battery committed on Lucy P. Coleman, who was hospitalized in critical condition from gunshot wounds. Subsequently she died, and on June 16, 1967, appellant appeared before a judge of the Circuit Court, charged with murder, and after a hearing was found not guilty.

On June 28, 1967, a supplementary report on the rule to show cause why probation should not be revoked or terminated was filed by the Probation Department. The report recited the facts of the original report, and in addition stated that Freddie Jones, sister of Lucy Coleman, gave an oral statement to detectives that on December 3, 1966, she heard her uncle (appellant) arguing with the deceased; that she saw him point a gun at the deceased and fire three shots at her; and that the deceased fell to the floor after the last shot. It was ascertained that the bullets removed from the victim came from the same gun appellant had.

On August 2, 1967, the cause came on for hearing on the rule to show cause before a judge of the Circuit Court. Counsel for appellant stated that appellant had a gun on his person at the time of the alleged violation of probation; that he reached into his pocket for cigarettes “and somehow his hand just sort of came up with the gun.” Counsel stated that appellant would admit he had possession of a gun, but that there was no illegal misuse of it; that his hand was grabbed and shaken and the gun accidentally fired. Defense admitted that it was unlawful for a probationer to be carrying a gun, but that the appellant was carrying it because he had been robbed recently; that appellant realized he had no business carrying the gun, and that there would never again be another violation if appellant was recommitted to probation.

Freddie Jones was sworn in as the State’s first witness and testified that she had lived with her sister, Lucy Coleman, at 3011 West Arlington; that appellant had come to their apartment at noon and had gone out to buy whisky, then had stayed at the apartment until the shooting occurred, about 6:00 p. m. She testified that she did not see the appellant pull out the gun but that she did see him fire at the deceased; that he then backed out of the apartment, after having fired three bullets. Appellant would admit that only two shots were fired.

Detective Adolph Learas was the second witness for the State. He testified that he saw the appellant in the police interrogation room on the day of the shooting; that appellant immediately said to him, “I’m sorry, I’m sorry”; that appellant had a weapon and a bottle of Scotch whisky on his person when arrested. The weapon was presented as People’s Exhibit 1 for identification.

Detective Learas further testified that seven live rounds of ammunition were found on appellant’s person; that was marked as People’s Exhibit 2 for identification, and the liquor was marked as People’s Exhibit 3. The witness stated that these were the same items that were removed from the appellant when he was arrested. He also stated that three shots had been fired. The exhibits were received in evidence.

The appellant testified that on December 3, 1966, he was standing at the door of deceased’s apartment, preparing to leave; that he reached in his pocket for cigarettes, when Freddie Jones grabbed his hand, and somehow the gun fired twice. He stated he had been carrying a weapon in his overcoat pocket because he had recently been robbed; that he was not well; that he had kept all meetings with the probation officer, and if recommitted to probation he would complete it without violation. On cross-examination the appellant admitted that People’s Exhibit 1 was the gun he had brought to deceased’s house; that he also had the ammunition which was Peopie’s Exhibit 2; and that the bottle of whisky, People’s Exhibit 3, was in his pocket when he was in the house.

Thelma G. Clark, Probation Officer, testified that appellant met with her at all required times and that she had never had any problem with him.

Appellant’s counsel then advised the court that the appellant had been found not guilty of murder at his criminal trial. The court stated that according to the evidence presented, based on the appellant’s history and present actions, based on the fact that he carried a concealed weapon, the appellant had violated the conditions of his probation. The probation was revoked and the appellant was sentenced to not less than seven nor more than ten years in the Illinois State Penitentiary, on the conviction of aggravated battery upon Barbara Gillum. The appellant takes the instant appeal from the court’s finding.

Appellant argues that the State failed to prove the allegations of probation violation by a preponderance of the evidence, and that the application for warrant filed by the Probation Department, alleging violation of probation by appellant, simply stated that appellant had violated his probation in that on January 11, 1967, he appeared before a judge of the Circuit Court, charged with murder, and was held to the Grand Jury. The supplementary reports which described the shooting have been previously set out.

The appellant argues that from the documents presented he did not know with what violation of probation he was charged. Case law in this State has established certain procedural guidelines to follow in a hearing on violation of probation. The courts have stated that a probationer should know the nature of a charge against him, have the opportunity to be represented by counsel, and allowed a reasonable time in which to prepare his defense. People v. Price, 24 Ill App2d 364, 164 NE2d 528; People v. Kostaken, 16 Ill App2d 395, 148 NE2d 615; People v. Coffman, 83 Ill App2d 272, 227 NE2d 108.

When the appellant in the instant case appeared in court on August 2, 1967, represented by counsel, to show cause why his probation should not be terminated, he admitted under oath that he had a gun concealed on his person at the time in question. At no time during the hearing did the appellant or his counsel object to the charge against him, or to the procedure the court was following; nor did appellant request any additional time to present his defense.

Our examination of the record, including the supplementary report of the probation officer, the remarks of appellant’s counsel, and the testimony of appellant, convinces us that appellant was fully advised of the charge upon which probation was revoked. Besides, since this point was never raised before the trial court it cannot, for the first time, be raised before a court of review. State v. Headrick, 54 Ill App2d 44, 203 NE2d 157.

A question is raised as to whether or not the fact that the appellant was acquitted of the murder charge should require the court hearing the probation violation to disregard completely the occurrences that resulted in the murder charge. In People v. Kuduk, 320 Ill App 610, 51 NE2d 997, appellant had been acquitted of a manslaughter charge, but evidence of such charge was heard in proceedings to revoke probation. It was held that he was not made subject to double jeopardy as there was no abuse of the court’s discretion since the standards of proof differed in the separate proceedings for revocation of probation as distinguished from trial upon the criminal charge. See also People v. Koning, 18 Ill App2d 119, 151 NE2d 103, and People v. Morgan, 55 Ill App2d 157, 204 NE2d 314.

In the instant case the trial judge stated:

“Based upon the fact that I cannot as a reasonable person accept the fact that a gun accidentally was drawn from his pocket and then fired twice without his hand being on the trigger. Based upon these facts and upon what appears to be a situation where this man has vicious propensities, especially when he is under the influence of alcohol, I find that he has violated the conditions of his probation and his probation is hereby revoked . . .”

We believe the judge was justified in finding by a preponderance of the evidence that appellant had violated the conditions of his probation.

The appellant also argues that the penalty imposed by the court was too severe. Chapter 38, section 117-3, Illinois Revised Statutes 1963, provides in part:

§ 117-3. Violation of Probation.)
(d) If the court determines that a condition of probation has been violated, the court may alter the conditions of probation or imprison the probationer for a term not to exceed the maximum penalty for the offense of which the probationer was convicted.

In Supreme Court Rule 615 it is provided that the reviewing court on appeal may reduce the punishment imposed by the trial court. Under all the circumstances brought out in this case, we feel that setting the minimum sentence at seven years and the maximum at ten years is not in the best interests of either the community or the appellant. People v. Myers, 92 Ill App2d 129, 234 NE2d 811. Accordingly, the minimum sentence is reduced from seven years to two years. The judgment and sentence are modified to provide that the sentence imposed on appellant be confinement to the penitentiary for a term of not less than two years nor more than ten years, and as so modified, the judgment is affirmed.

Judgment modified, and as modified, affirmed.

DRUCKER and ENGLISH, JJ., concur.


text:
    Peter Hoffman, Plaintiff-Appellee, v. City of Evanston, a Municipal Corporation, Defendant-Appellant.
    Gen. No. 53,295.
    First District, Fourth Division.
    October 30, 1968.

      Jack M. Siegel, Corporation Counsel, of Evanston, and Erwin W. Jentsch, Assistant Corporation Counsel, for appellant.
    Moses, McGarr, Gibbons, Abramson & Fox, of Chicago, for appellee.
   MR. PRESIDING JUSTICE McCORMICK

delivered the opinion of the court.

This interlocutory appeal is taken from an order entered by the Circuit Court of Cook County, granting the plaintiff’s prayer that a temporary injunction issue against the defendant, City of Evanston, prohibiting the said City (hereafter referred to as the defendant) from in any way interfering with the plaintiff’s operation of his business.

On July 12, 1968, the plaintiff filed his complaint at law for a declaratory judgment, seeking a declaration that the City of Evanston Zoning Ordinance is invalid, insofar as it prevents the plaintiff from using the subject premises for the outdoor sale of farm produce without first obtaining a special use permit as required by that ordinance, alleging that the said ordinance bears no direct and reasonable relationship to the public health, safety or welfare, and thereby acts to deprive him of his property without due process of law in violation of the Fifth and Fourteenth Amendments to the Constitutions of the United States and of the State of Elinois.

The plaintiff also alleged that his proposed use of the subject premises was in the public interest and convenience, and that the defendant’s refusal to grant him a special use permit resulted in irreparable harm and damage because unless he is allowed to open his business this year he will lose his customers to his competitors in villages to the north and west of Evanston. He further sought a temporary and permanent injunction restraining the defendant from preventing him from using the subject premises for the outdoor sale of farm produce without his having first obtained a special use permit.

The defendant filed its answer on July 18, 1968, denying that its action in approving and passing the zoning ordinance in question operated to deny the plaintiff his property without due process of law, and alleged that the passing of the ordinance constituted a valid exercise of its legislative authority in that its zoning powers were exercised reasonably and equitably with the intention of promoting and protecting the public health, safety, comfort and general welfare. The defendant further alleged that the plaintiff’s proposed use of the subject property is not in the public interest and convenience, but rather will be injurious to the public health, safety and welfare.

On the same day the trial court, over defendant’s objection, ordered that a temporary injunction issue against the defendant, enjoining and restraining it, “its commissions, officers, agents, and employees from in any way interfering with the plaintiff, anyone claiming by, through or under plaintiff from using the premises known as 2526 Gross Point Road, Evanston, HI. for the purpose of operating an open sales lot and temporary stand for the sale of farm produce to including Sept. 1, 1968.” The order was entered on the pleadings and without a hearing. The plaintiff was not required to post any bond or security. The defendant immediately took an interlocutory appeal from that order, and on August 12, 1968, this court entered an order allowing the notice of appeal to operate as a supersedeas, thereby staying the effect of the July 18 order. Consequently, on August 28, 1968, the plaintiff again requested that the trial court issue another temporary injunction against the defendant. The trial court then conducted a preliminary hearing to determine whether or not the plaintiff’s request was meritorious.

After hearing all of the evidence, on August 23, 1968, the trial court entered a temporary injunction against the defendant, identical to the order of July 18, 1968, except that its duration was extended to October 31, 1968, to coincide with the termination date of the plaintiff’s lease. The court then set a hearing for October 21, 1968, to determine whether a permanent injunction should issue. This temporary injunction was also issued without requiring the plaintiff to post any bond or security. From that order the defendant perfected the instant interlocutory appeal. However, since the order of July 18 expired by its own terms on August 31, 1968, the appeal from that order is now moot and the defendant is now only seeking to reverse the order of August 23,1968.

In this court the defendant urges that we reverse the order of August 23, 1968, and proceeds on the theories that the trial court erred in issuing the temporary injunction in that the said injunction operated not to maintain the status quo, but rather to change it; that the plaintiff failed to show that there was a high probability that in a final hearing on the merits of the case he would ultimately be entitled to the permanent relief prayed for; that the injury to plaintiff is not great and irreparable; and further, that the plaintiff is estopped from challenging the validity of the zoning ordinance. However, we find it unnecessary to discuss these theories, since we have concluded that the preliminary injunction in question must be dissolved on the basis of a statement in plaintiff’s brief, amounting to a confession of error, that the court was without authority to issue the preliminary injunction without bond. See Dear v. Dear, 93 Ill App2d 179, 235 NE2d 158 (abst).

A preliminary injunction is an extraordinary remedy which usually will issue only when it appears that irreparable harm might be done in the event that the status quo is not maintained pending the disposition of a lawsuit. It is generally employed only in matters of great urgency, and then only with the utmost care and caution. County of DuPage v. Robinette, 77 Ill App2d 167, 221 NE2d 769; Naxon Telesign Corp. v. Selig, 38 Ill App2d 242, 186 NE2d 666. This rule is particularly applicable where, as here, a preliminary injunction is issued without requiring the plaintiff to post bond. The purpose of requiring a bond of plaintiff, where a preliminary injunction is issued, is to allow the plaintiff his temporary relief while at the same time assuring the defendant that in the event the preliminary injunction is later dissolved and damages for the unlawful suing out of the injunction are assessed against the plaintiff, such damages will be paid. Schaefer v. Stephens-Adamson Mfg. Co., 36 Ill App2d 310, 183 NE2d 575. Apparently, recognizing the need for requiring the posting of security in every case where a preliminary injunction is issued, the legislature amended the then existing statute to provide for such a result. Chapter 69, section 9, Illinois Revised Statutes 1965 provides in pertinent part that:

In all other cases, before an injunction may issue, the plaintiff shall give bond in such penalty, upon such condition and with such security as may be required by the court or judge: Provided,, bond need not be required when, for good cause shown, the court or judge is of opinion that the injunction ought to be granted without bond. (Emphasis supplied.)

In 1967, that statute was amended and that portion of it providing that “bond need not be required when, for good cause shown, the court or judge is of opinion that the injunction ought to be granted without bond” was deleted. Chapter 69, section 9, Illinois Revised Statutes 1967 now provides in pertinent part as follows:

In all other cases, before a restraining order or an injunction may issue, the applicant shall give bond in such sum, upon such condition and with such security as may be deemed proper by the cowrt or judge, for the payment of such costs and damages as may be incurred or suffered by any party who is found to have been wrongfully enjoined or restrained. (Emphasis supplied.)

It seems quite apparent to this court, as it was to the court in Dear v. Dear, supra, that the legislature carefully and deliberately amended chapter 69 of our statutes. As pointed out in Dear,

“The failure of the defendant to have given notice and bond, on the facts presented, should have been a bar to granting his injunctive relief. Section 9 of the Injunction Act (Ill Rev Stats 1967, Ch 69, Sec 9) specifically provides that the moving party give bond upon such conditions and with such security as may be required by the court or judge. Prior to August 7, 1967, this statute contained a proviso whereby the court, 'for good cause shown,’ may grant the injunction without bond, but this proviso was deleted by amendment five days before the filing of the petition below. In any event, a search of the entire record does not disclose any grounds whatsoever for waiving the requirement of a bond, and to have done so on this record was error.”

It is only reasonable to infer that the legislature intended that the deleted portion of the 1965 Injunction Act should be inoperative. Words are not deleted from statutes if they are still to have effect. In so doing, the legislature has required that before any restraining order or injunction is issued, a bond must be filed with the court. It is no longer within the sound discretion of the trial court to issue a restraining order or injunction for “good cause shown” without requiring the plaintiff to post bond. The filing of bond is now mandatory and no court may properly issue an injunction without requiring it. As stated in 43 CJS, Injunctions, § 166:

“According to the weight of authority, where the statute requires that the party applying for an injunction shall, as a condition precedent to its issuance, execute a bond or undertaking, with sufficient sureties, an injunction issued without such bond or undertaking is inoperative and void; . . .”

In the instant case the trial court simply had no authority under our present Injunction Act to issue the preliminary injunction on August 23, 1968, without first requiring the plaintiff to file an appropriate bond. Accordingly, the order of August 23, 1968, must be vacated and the preliminary injunction dissolved.

The judgment of the Circuit Court is reversed.

Reversed.

DRUCKER and ENGLISH, JJ., concur.


author: MR. JUSTICE SULLIVAN

text:
    People of the State of Illinois, Appellee, v. Dorothy Gilmore, Appellant.
    Gen. No. 51,390.
    First District, Third Division.
    October 31, 1968.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Shelvin Singer and James J. Doherty, Assistant Public Defenders, of counsel), for appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Michael C. Zissman, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE SULLIVAN

delivered the opinion of the court.

This is an appeal from a conviction for an unlawful sale of a purported narcotic drug. The defendant, having waived her right to trial by jury, was sentenced to the Illinois State Reformatory for Women for a term of two to five years.

The defendant contends on appeal that (1) she was not proven guilty beyond a reasonable doubt; (2) the one-count indictment was fatally defective because it alleged two separate and mutually exclusive offenses; (3) the indictment was fatally defective because it alleged the wrong person as the victim of the sale, and (4) the sentencing procedure was unfair and improper.

The indictment charged the defendant with “the offense of sale of purported narcotic drug in that [the defendant] knowingly offered to sell a narcotic drug and knowingly sold to August Irby for lawful money . . . a quantity ... of a certain nonnarcotic substance material, to-wit, purported heroin, in violation of Chapter 38, Section 22-3, of the Illinois Revised Statutes 1963. . . .”

The State’s first witness was one Artis Irby who testified as follows: On December 30, 1965, he informed detectives Willis Nance and James Arnold that he could make a controlled purchase of narcotics. The officers gave Irby $24 in prerecorded currency and drove him to a location at 43rd Street and Calumet Avenue in Chicago where he met the defendant. Mr. Irby had known the defendant for about six years and admitted to having purchased heroin from her on prior occasions. The witness asked the defendant if she had any “stuff” and she replied affirmatively, took the $24, went into a building, and returned with a tinfoil package containing white powder. The package was immediately turned over to the police officers.

The two detectives testified that after the sale was made, they went to the apartment indicated by Irby and were told by one Robert Ward, the defendant’s boyfriend, that the defendant was not in the apartment. The officers later returned and confronted the defendant in the apartment with the allegation that she had sold a narcotic drug to the informer, Mr. Irby. According to the officers, the defendant admitted to the sale and further stated that she had given the $24 to one Raymond “to cop some more jive with.” Within a few minutes of the defendant’s arrest, the police confronted Raymond, whereupon Raymond took the two officers to his apartment where the prerecorded currency was discovered. The package was taken to the Police Department’s Crime Laboratory where its contents were found to be nonnarcotic.

The defendant testified in her own behalf and denied participation in the alleged sale but testified that she observed on that day a sale of narcotics from Robert Ward to two men known as Earl and Kid Harry. The defendant admitted that she had known the witness, Irby, for a period of eight years but denied seeing him at any time during December 30, 1965. There was additional testimony by the defendant that she was an addict and that she had been working with Robert Ward “as a team” for two to three weeks prior to her arrest.

At trial both the prosecution and the defense counsel stipulated that the subject matter of the alleged transaction did not contain any narcotic or dangerous drug.

The defendant’s first contention is that she was not proven guilty beyond a reasonable doubt. It is her argument that the informer’s testimony that the defendant said that she had some “stuff” and then gave him a packet of white powder provides no evidence of deceit or attempt to deceive the informer into believing that the nonnarcotic substance was in fact a narcotic substance. In the context of all of the evidence adduced at trial, it is impossible to accept this contention. There was testimony that Irby had purchased heroin from the defendant on earlier occasions. These earlier transactions support an inference that those earlier sales were part of a course of conduct which would induce the belief that what was now offered for sale was a narcotic drug. People v. Steele, 22 Ill2d 142, 174 NE2d 848. Webster’s Third New International Dictionary, unabridged (1966) gives “narcotics” as one of its definitions for the word, “stuff.” The United States Court of Appeals, Ninth Circuit, when confronted with the meaning of the word “stuff” in a narcotics case said:

“Appellant argues that the use of the word ‘stuff’ has no particular significance. It does in the dope trade. When appellant used the word in his conversation with Haley and it is examined within the context in which it was said, it carried a customary meaning peculiar to the illegal narcotics trade. . . .” Parente v. United States, 249 F2d 752, 754.

The same Circuit in Enriquez v. United States, 293 F2d 788, 795, held that it was not error to allow a witness to testify that the word “stuff” meant heroin:

“The trial judge below, however, could not have been on the Federal Criminal Bench of California a month before learning that ‘stuff’ is a well-recognized synonym for narcotics of one type or another, usually heroin or some other opium derivative.”

The attempt to deceive the victim was proven beyond a reasonable doubt.

The defendant also argues that the indictment was fatally defective because it joined in one count two mutually exclusive offenses and, as a result, the defendant was not properly advised of the charge against her. The text portion of the indictment clearly and unequivocally charged the defendant with the unlawful sale of a purported narcotic drug. However, for some unexplained reason, the indictment erroneously cited this offense as a violation of section 22-3 of chapter 38, Illinois Revised Statutes 1963. The cited section pertains only to offenses relative to narcotic drugs. The section pertaining to the sale of a purported narcotic drug which corresponds to the text of the indictment is section 22-40 of chapter 38. These two offenses are mutually exclusive for the obvious reason that a party cannot be charged with the sale of a narcotic drug while also being charged with the sale of a nonnarcotic substance. But the exclusiveness of the two statutory offenses is not dispositive of the issue before us.

Section 111-3 of chapter 38 requires specific allegations to be contained in the indictment one of which is “(2) Citing the statutory provision alleged to have been violated.” It is the defendant’s position that the incorrect citation was a substantive and fatal defect rendering the entire indictment void. It is well established that an indictment must adequately inform the accused of the offense with which he is charged so as to enable him to prepare his defense in order to fulfill the requirements of Article II, section 9 of the Illinois Constitution. People v. Moore, 368 Ill 455, 14 NE2d 494; People v. Braun, 375 Ill 284, 31 NE2d 287. Niceties and strictness of pleading are supported only where a defendant would be otherwise surprised at trial or be unable to meet the charge or to prepare his defense. People v. Woodruff, 9 Ill2d 429, 137 NE2d 809. In the case at bar, we fail to perceive how the miswriting in any way surprised or prejudiced the defendant. At no time did the prosecution endeavor to establish a case for a section 22-3 offense. In fact, both parties stipulated that the substance was not narcotic which would indicate that both parties were only concerned with a violation of section 22-40.

This court in People v. Hill, 68 Ill App2d 369, 216 NE2d 212, was confronted with a challenge to a criminal complaint which charged the defendant with theft but which not only failed to cite the correct statutory provision but even cited a nonexistent municipal ordinance as the provision alleged to have been violated. This court held that the complaint was fatally defective on other grounds but stated that the failure to cite the proper statutory provision is not a ground for dismissal under section 114-1(a) of chapter 38 or for arresting judgment under section 116-2(b) of chapter 38. The court emphasized that since the complaint adequately stated the nature and cause and the elements of the charge against the defendant, it was not subject to the attack that the conviction based upon it was void.

In People v. Hall, 55 Ill App2d 255, 204 NE2d 473, it was held that an erroneous citation of the applicable statute which failed to conform to the textual allegations in the indictment was a formal defect and not a substantive defect which would render the indictment void. On page 259, the court said:

“It is equally apparent that the grand jury intended to charge this defendant with possession of burglar tools. The indictment says so in so many words. The facts alleged are the essence of that charge as set forth in the statute. It is readily apparent that a typographical error alone distinguishes what the grand jury did with what they manifestly thought they did. It is pure sophistry either to assert or to believe that this typographical error misled the defendant or his attorney as to the nature or the cause of the charge laid at his door. . . . It is our view that the incorrect citation of the statute in the record before us is a formal rather than a substantive defect.”

This court is of the opinion that the miswriting of the citation in the instant case is a formal rather than a substantive defect regardless of whether the error be deemed a typographical error or a clerical oversight. Failure to cite a particular statutory provision cannot be equalized with failure to state the nature and elements of the offense charged. The latter is on a higher level and parallels the constitutional requirement that an accused shall have the right “to demand the nature and cause of the accusation.” People v. Bridges, 67 Ill App 2d 236, 214 NE2d 539. Therefore, we conclude that this formal defect in the indictment does not make the conviction based upon it void.

An additional argument advanced by the defendant is that a fatal variance resulted from the misstatement of the alleged victim’s first name. At trial, the alleged victim, Mr. Artis Irby, testified that he had never been known as “August” Irby, which was the name contained in the indictment. The object of requiring the indictment to name a victim is to provide identification so that the accused may prepare his defense and not be taken by surprise on the trial, and to prevent his being placed in double jeopardy for the same offense. People v. Nelson, 17 Ill2d 509, 162 NE2d 390. In People v. Jankowski, 391 Ill 298, 63 NE2d 362, the defendant was convicted of assault with intent to commit rape of “Katherine Balenda” while the indictment named “Catherine Valenta” as the victim. The Supreme Court held that the variance was not fatal since there was no evidence that the defendant had been misled or placed in double jeopardy. The record clearly established the identity of the victim as the person named in the indictment.

In the case at bar, we find no injury to the defendant as a result of the misstatement of the victim’s first name. At the outset of the trial, Mr. Irby stated that his name was Artis and no objection to the indictment was entered at that time. The defendant could not have been surprised or misled in view of the fact that she herself testified that she had known Mr. Irby for a period of years. We find no resultant injury due to the miswriting, and the defendant’s failure to object at the proper time in the trial court waives her right to now on appeal take advantage of this mere formal defect.

The final contention of the defendant is that the hearing in mitigation and aggravation was improper and unfair, and therefore the sentence should be reduced or, alternatively, the cause be remanded for a new presentence hearing. The record reveals that at the hearing in mitigation and aggravation, the trial judge specifically stated that he relied on two factors in his denial of probation and sentencing of the defendant. One factor relied upon was the fact that the informer, Mr. Irby, had been required to testify in open court thereby destroying his usefulness as a police informer since his identity had been disclosed. The trial judge also heavily relied upon the testimony of officer Arnold at the hearing that he had received “information” from various informers that the defendant had been engaged in the sale of narcotics and was not simply an addict as she contended. The officer’s testimony was admitted over the objection of defense counsel.

It is well established that a hearing in mitigation and aggravation is not strictly a trial and that the trial court is not bound by the usual rules of evidence found in criminal prosecutions but may search anywhere within reasonable bounds for other facts tending to aggravate or mitigate the sentence. People v. Mace, 79 Ill App2d 422, 223 NE2d 725. The power given this court to reduce sentences (Illinois Supreme Court Rule 615, Ill Rev Stats 1967, c 110A, § 615) is applied with considerable caution and circumspection. Yet we are of the opinion that circumstances in the instant case require such a reduction. The informer’s anonymity had been destroyed as a result of the defendant’s asserting a constitutionally protected right to confront her accused. See: Pointer v. Texas, 380 US 400; Roviaro v. United States, 353 US 53. The exercise of such a right should not have been taken into consideration by the judge when imposing sentence. In addition, the trial court should not have so relied on the officer’s mere “information” that the defendant had been a seller in the narcotics trade. Due to the reliance placed on these two factors, we believe that this is a proper case for the use of our power to reduce the defendant’s punishment.

For the reasons given, the defendant’s conviction is affirmed and her sentence is reduced to a term of one to three years in the Illinois State Reformatory for Women.

Judgment, as modified, affirmed.

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


author: MR. JUSTICE CRAVEN SMITH, P. J., concurs. TRAPP, J., dissenting:

text:
    John Kotulla and Florence Kotulla, Plaintiffs-Appellees, v. Great Lakes Terminal and Transport Corporation, an Illinois Corporation, and Walter J. Tabaka, Defendants-Appellants.
    Gen. No. 51,510.
    First District.
    October 31, 1968.

      TRAPP, J., dissenting.
    Menk, Johnson and Ryan, of Chicago (John Cadwalader Menk, of counsel), for appellants.
    Herbert F. Stride, of Chicago (Herbert F. Stride and Louis S. Elovitz, of counsel), for appellees.
   MR. JUSTICE CRAVEN

delivered the opinion of the court.

This case is an appeal from judgments entered in the Circuit Court of Cook County upon jury verdicts in favor of plaintiff, John Kotulla, for $120,000 for injuries to him and in favor of Florence Kotulla, his wife, for $10,000 for loss of his consortium. A third-party complaint by Central Waxed Paper Company, Kotulla’s employer, was filed upon allowance by intervention, and dismissed by directed verdict by the court at the close of all evidence.

In the late afternoon of June 23, 1961, plaintiff John Kotulla, employed by Central Waxed Paper Company, intervening petitioner, was operating a forklift at the loading dock of his employer in Chicago, unloading drums of chemical about two feet across and four feet high, weighing about four hundred pounds, being delivered by a truck of defendant, Great Lakes Terminal and Transport Corporation, driven by defendant, Walter J. Tabaka, when Kotulla was injured. At the time of the occurrence, Kotulla had driven his forklift truck with some “skids” or “pallets” on it to the loading dock. He was engaged in unloading the chemical drums from a Great Lakes truck driven by Tabaka.

The unloading operation consisted of lifting the drums onto the wooden “skids” or “pallets,” which were approximately four feet square and had legs which raised them off the floor so that the forks of the lift truck could be placed under the floor of the pallet and lift up the pallet after the drum had been placed on it. Then the forklift truck would take the load into the plant from the loading dock. The loading dock was enclosed and had space for three trucks to load or unload at the same time. It was concrete and had three stalls, each of which had a steel loading platform or lift which could be raised or lowered hydraulically in order to be level with the tailgate of a truck being loaded or unloaded. At the edge of the steel “lift” was a hinged metal plate which formed a “bridge” between the dock and the truck. The dock platform from a truck to the plant proper was four to five feet wide. The dock was some four feet above the level of the floor below where the wheels of the truck would run, referred to as the “pit.”

A sharp dispute exists as to the manner in which the accident occurred. It is certain that in the course of unloading the drums from the truck of defendants, plaintiff was injured by one of the drums coming into contact with him. This rendered Kotulla unconscious. He was hospitalized and treated for severe injuries, including an alleged eye injury.

At the trial, Kotulla testified that there were no eyewitnesses to the accident; that just prior to the accident three trucks had been unloading at the dock, but that one had left; that he was unloading the Great Lakes truck, having placed a pallet in the middle of the dock metal plate behind the truck, about two feet from the edge of the dock, when he saw the driver of the truck (Tabaka) roll a drum out of the truck and put it on the northeast corner of the pallet; that he was at the northwest comer of the pallet; that when Tabaka tried to get the drum onto the pallet, he lost his grip on the drum and the drum came onto Kotulla, kept falling, and rolled on him.

Kotulla, earlier, had filed an application for Workmen’s Compensation award against his employer, Central Waxed Paper Company, and received an award. At the hearing in that proceeding, someone and one-half years after the accident, Kotulla testified that the last thing he remembered of his working was that he was stacking steel drums, four to a skid, and then he woke up in the hospital.

Tabaka, driver of the truck being unloaded, testified at the trial that he had unloaded one drum and went back for a second drum; that he took it out of the truck himself and placed it on a slant resting on the pallet; that he pushed the drum up to Kotulla and asked him if he had it, and after Kotulla said he had, Tabaka then released the drum, saw Kotulla had it, and went back to the truck for another drum. When he brought out the next drum, he didn’t see Kotulla, so he left the drum at the end of the truck and went to another door to the plant. He testified that as he turned to go back to the truck, he saw Kotulla lying in the pit below the loading dock on his back with the barrel “kind of in between him, and his arm was thrown out, . . . .” (Rec p 116.) He and another man removed the drum from Kotulla, who was bleeding and appeared unconscious.

Considerable controversy centers around a witness, Billy Phillips, who testified he was at the loading dock with a truck at the time of the occurrence. He testified that Kotulla was trying to place a drum on the pallet and stepped backward off the dock, whereupon the drum fell on him. After the occurrence, Phillips gave his name and address to Mr. Lynn, of Central Waxed, Kotulla’s employer, and told him what he saw. Phillips gave a statement at his home sometime later to a person from the office of Kotulla’s attorney. He stated it was possible he could have turned away just before the occurrence, but did definitely see Kotulla when he stepped off and saw Kotulla go over with a drum tilted and coming toward him when he stepped back and fell.

On this appeal, defendants contend that the verdicts are against the manifest weight of the evidence in that plaintiff Kotulla was contradicted by irreconcilable differences in his own statements and only a “revived memory” of how the accident occurred; that his testimony was contradicted by the only eyewitness other than the parties; that he was contradicted by defendant’s driver; that his exaggeration of his injuries cast doubt upon his veracity and that his version was not probable. Defendants further contend that the verdicts were the result of sympathy and prejudice, induced by improper conduct of counsel in injecting improper matters, by remarks before the jury on voir dire examination of jurors by which he referred to insurance companies as being involved and behind the defense of the case; in calling Kotulla’s family physician to testify as to changes in his condition after the accident, although the physician did not treat him for the injuries resulting in this accident; and in repeating questions so as to require defendants’ counsel to make continued objections and appear to be a chronic objector. Defendants further assert as error that the identity of the only eyewitness (Phillips) was concealed from them until just before trial; that dismissal of the third-party complaint of Kotulla’s employer, Central Waxed Paper Company, at the close of all the evidence, and the refusal to sever the third-party issue from this trial, was prejudicial. This contention asserts that the defendants are placed in a difficult psychological position before the jury by the alleged concealment of Phillips and defendants’ stipulation to waive appeal of the directed verdict on the third-party claim. Defendants had bargained to waive such matter in exchange for an agreement that the directed verdict be handled by court order only rather than by direction to the jury.

A studied reading of the record of the trial below leads us to conclude that the testimony of plaintiff John Kotulla in the Workmen’s Compensation hearing, which defendants contend is inconsistent with and contradictory to his testimony at the trial as to the events of the accident, falls far short of contradiction. The question asked him at the Compensation hearing was a specific question of what the last thing was that he recalled at the loading dock on June 23, 1961. No attempt appears in the record to have been made by defendants’ counsel to fully follow up this line of questioning, although some further questions were asked. This was cross-examination and did not permit the witness to testify at length to the entire events involved in the accident. Other testimony of his last recollection of the manner in which the accident occurred appears to have been at times when he was in serious condition, suffering from multiple injuries, in shock, with injuries to the skull, facial bones and left mandible. One such occasion was on the date of the accident, and another a month and a half later. We can conclude only that such testimony, whether conflicting, contradictory, or not, was properly submitted to the jury. The jury observed the witnesses as they related this testimony. The verdict is not against the manifest weight of the evidence. Read v. Cummings, 324 Ill App 607, 59 NE2d 325 (1st Dist 1945); Tihay v. Aurora City Lines, 79 Ill App2d 107, 223 NE2d 171 (2nd Dist 1967).

Further, it is not for us to determine the credibility of the testimony of the witness Phillips when viewed in the light that plaintiff Kotulla and defendant Tabaka both testified that no persons other than they were present on the loading dock at the time of the accident and that Tabaka, at the trial, attempted to change his testimony on that matter from testimony he had given on a discovery deposition. We can only assume that the jury, in its deliberations, considered this as impeaching testimony of the defendant Tabaka.

Likewise, the contention that Kotulla’s position that the accident caused injury to his eye which it is contended was an exaggeration of his injuries casts doubt upon his veracity and the truth of his entire testimony, does not appeal to any sense of justice in this court. The testimony of Dr. Linkowski that he made a physical and eye examination of Kotulla in 1957 and approved him for employment was subject to at least consideration by the jury along with the testimony of other doctors offered by defendants that Kotulla had a blindness which was congenital. The extent of his injuries as testified to by Doctors Hrejsa and Manfredi was such as to justify the jury not only in disbelieving this claim of exaggeration, but as well to account for the amount of the jury’s verdict.

The verdict of a jury will not be disturbed as being contrary to the manifest weight of the evidence unless, in considering all the evidence, it is conclusive that an opposite verdict should have been reached. We cannot say that Kotulla’s testimony and the evidence presented on his behalf were contradicted by the probabilities. Our duty is not to juggle probabilities, in any event. Questions of this nature should never be determined as matters of law where reasonable men would arrive at different results. Under our judicial system, the jury is the fact-finding body to determine such issues. Roth v. Lissner Iron & Metal Co., 88 Ill App2d 352, 232 NE2d 534 (1st Dist 1967); Ney v. Yellow Cab Co., 2 Ill2d 74, 117 NE2d 74 (1954).

The matters complained of as being prejudicial and resulting in the present verdicts because of prejudice and sympathy could not have caused reversible error in this case when tested in the light of the evidence. The dismissal of the third-party complaint is not assigned as a ground of appeal, and therefore the merit or lack of merit in such dismissal cannot be considered by this court as a ground for reversal or remandment.

Finding no reversible error, the judgments of the trial court must be affirmed.

Judgments affirmed.

SMITH, P. J., concurs.

TRAPP, J., dissents.

TRAPP, J., dissenting:

This dissent is presented in the light of policy expressed in related context by the opinion in Pedrick v. Peoria & Eastern R. Co., 37 Ill2d 494, 229 NE2d 504, concerning verdicts which are “not factually sustainable.” It is frequently said that a reviewing court must set aside a verdict which is clearly against the manifest weight of the evidence. This may result where a state of facts is established which makes the conclusion of the jury inconsistent with the evidence. Acosta v. Gill, 48 Ill App2d 186, 198 NE2d 741. In Turner v. Seyfert, 44 Ill App2d 281, 194 NE2d 529, a verdict for the defendant was reversed as against the manifest weight of the evidence, primarily upon physical evidence establishing speed through skid marks. In May v. Columbian Rope Co., 40 Ill App2d 264, 189 NE2d 394, the court stated that the reasonableness of the testimony of the plaintiff must be considered and his testimony that the rope was new was examined in the light of the apparent condition of the rope, and order for a new trial was affirmed. In Carter v. Winter, 32 Ill2d 275, 204 NE2d 755, the Supreme Court stated that the plaintiff’s conduct should be considered in the light of his own testimony-concerning speed, which the Court deemed “incredible,” as well as the testimony of the other witnesses. In criminal cases it has been stated in another way — a conviction may be set aside on review where the judgment rests on doubtful, improbable or clearly insufficient evidence. People v. Hightower, 20 Ill2d 361, 169 NE2d 787; People v. Turner, 82 Ill App2d 10, 226 NE2d 667; People v. Owens, 73 Ill App2d 108, 219 NE2d 733.

The opinion does not investigate factors present in the record which so contradict plaintiff’s evidence and create such a high degree of improbability that his theory should be deemed not credible to reasonable men.

While the majority note that the testimony of the defendant, Tabaka, is corroborated by that of the witness, Phillips, a stranger to all parties mediately and immediately interested in the event, they conclude that the jury might test his credibility, and presumably disregard his testimony, in the light of the fact that both the plaintiff and Tabaka testified that they had no recollection of seeing Phillips on the “dock.” Whether the term “dock” in such testimony was employed literally and strictly to describing the loading platform, or more broadly to the entire loading area, this conclusion is not reasonable in the light of uncontradicted evidence that Phillips was present. Francis Lynn, traffic supervisor for Central Waxed Paper Co., testified that almost immediately after the event he talked with Phillips concerning the occurrence, made notes of what Phillips said, and Lynn’s memorandum listing the names and addresses of both Phillips and Tabaka is in evidence as an Exhibit. Under such circumstances it is not reasonable to conclude that the jury would be entitled to disregard otherwise unimpeached testimony for the reason stated in the opinion.

We suggest that plaintiff’s description of the event, examined in the light of the physical facts in evidence, contradicts his testimony to such degree that it may properly be deemed improbable. Plaintiff gave no specific description of the pallet, but one Merkel, a receiving clerk on the date in issue, described the pallets used on the dock and referred to a photograph in evidence, stating that such pallets were about 6 inches high, i. e., the load bearing surface of the pallet rested on wooden pieces which raised such surface about 6 inches above the floor. The pallet was described as being about 45x45 inches, or slightly less than 4 square feet.

The following are taken from plaintiff’s testimony: Defendant’s truck was backed up to the southerly edge of the westernmost loading dock. A platform, which formed a part of the dock and could be raised or lowered to the level of the truck bed, had a north-south dimension of 8 feet and an east-west dimension of 5 feet. From the west edge of such platform, the dock extended west about 6 feet. A photograph, in evidence as plaintiff’s Exhibit 8, scaled to stated measurements, shows steps about 3 feet wide from the dock to the floor of the area located at the west wall of the structure. East from the steps a rail extends along the edge of the dock an apparent 2 feet or so to a point a foot or a foot and one-half west of the west edge of the platform first described.

Plaintiff described his acts and positions: He placed the pallet so that its southerly edge was about 2 feet north of the south edge of the platform, the 4 feet square pallet being centered on the 5 foot east-west dimension. Tabaka rolled out the first drum described as 2 feet in diameter and 4 feet tall, weighing some 400 pounds. This was placed on the northeast corner of the pallet. Tabaka says that plaintiff helped roll this drum upon the pallet. Plaintiff says that he just stood there.

Plaintiff describes himself as standing at the northwest corner of the pallet. When Tabaka moved the first drum onto the northeast corner of the pallet, he was then approximately 6 feet from the edge of the dock. Upon cross-examination he states that when Tabaka returned with the second drum, “I was still standing there.” Upon this version by plaintiff he would be 6 feet north of the edge of the platform and about 4 feet north of where the drum would first come into contact with the 6-inch elevation of the load surface of the pallet. Upon this description we can find no vector or flow of force by which the drum at issue could be propelled onto the pallet or fall from it so that it would strike plaintiff and cause the plaintiff and the drum to fall to the south of the platform and west of the truck.

At another point on direct examination, he stated that he was standing a foot or two north of the edge of the dock, i. e., the same distance from the edge as was the pallet, and that he stood two feet west of the pallet. He testified that as Tabaka rolled the barrel it would first hit the edge of the pallet, and that he thinks that Tabaka had one end of the barrel on the pallet which then fell southwest. It is not claimed that the pallet was moved or shifted by the impact of the rolled drum and it would seem that the pallet was, in fact, strongly anchored by the weight of the first drum. It is not claimed that the drum was propelled over and across the pallet with its 6-inch elevation above the floor so as to strike the plaintiff. From plaintiff’s position 2 feet west of the pallet and 2 feet north of the edge of the dock, he would appear to be north of the rail of the platform. Such rail was not, so far as the testimony shows, a factor connected with the fall at issue. Under plaintiff’s testimony we can find no valid physical reconstruction of the fall of the drum which would strike the plaintiff causing him to fall to the southwest beneath the drum. The record is replete with plaintiff’s statements which are incomprehensible on review because he pointed out on the photograph that he stood here or there. Thus, it is necessary to review this matter on physical facts and distance relations actually described in evidence.

From a scrutiny of the physical factors shown by plaintiff’s testimony, it is reasonable to conclude that there is overwhelming contradiction of his testimony concerning the acts alleged to create liability. These contradictions are in addition to the elements impeaching the testimony of plaintiff given passing reference in the opinion. Such contradictions should be considered in the light of the testimony of the other occurrence witnesses, Tabaka and Phillips. Carter v. Winter, 32 Ill2d 275, 204 NE2d 755.

For the reasons stated, the verdict is deemed contrary to the manifest weight of the evidence. Since the record does not conclusively demonstrate that no new or different evidence would not be available at a new trial, the cause should be reversed and remanded.


author: GOLDENHERSH, J.

text:
    Mid-Central Mutual Casualty Co., Plaintiff and Counter-defendant, and Appellee, v. Diane Spanjer, et al., Defendants and Counterplaintiffs, and Appellants.
    Gen. No. 52,136.
    First District.
    October 31, 1968.

      Lowell J. Myers, of Chicago, for appellants.
    Max Earl Sherman, of Chicago, for appellee.
   GOLDENHERSH, J.

Defendants appeal from the decree of the Circuit Court of Cook County entered upon allowance of plaintiff’s motion for judgment on the pleadings in its action for a declaratory judgment.

On August 14, 1964, defendant, Sibyl Myers, was driving a station wagon occupied by all of the defendants except David Spanjer, owner of the vehicle. The station wagon was struck by a hit and run driver who remains unidentified.

At the time of the occurrence there was in force a liability policy issued by plaintiff covering the station wagon, with defendant, David Spanjer, as the named insured. There was also in force a liability policy issued by Government Employees’ Insurance Company covering a vehicle owned by the husband of defendant, Sibyl Myers. Both policies contained Family Protection Coverage Endorsements providing coverage for damages for bodily injuries caused by uninsured automobiles.

Plaintiff filed this action seeking a declaratory judgment that its policy was not in force, and defendants filed a counterclaim for a declaratory judgment as to certain provisions of the uninsured automobile endorsement. Because of the arbitration agreement hereafter described, many of the issues raised by the pleadings are no longer material and are, therefore, not discussed.

During the pendency of this litigation, defendants made claim against Government Employees’ Insurance Company under the uninsured automobile coverage provided in its policy, and were paid sums totalling $6,000.

Following the settlement with Government Employees’ Insurance Company, plaintiff and defendants entered into an agreement to submit to arbitration all issues except the “effect of previous payments of settlement made with Government Employees’ Insurance Company.”

The arbitrators found for defendants and awarded them sums totalling $5,750. Defendants moved for judgments based on the awards, and plaintiff moved for judgment “. . . that the plaintiff is not indebted to the defendants or any of them in any amount. . . The trial court allowed plaintiff’s motion and entered a decree in which it found that plaintiff is not indebted to defendants, and the award is not collectible. This appeal followed.

The provision of plaintiff’s policy pertinent to the controversy is:

“ (b) Any amount payable under the terms of this endorsement because of bodily injury sustained in an accident by a person who is an insured under this coverage shall be reduced by
“(1) all sums paid on account of such bodily injury by or on behalf of (i) the owner or operator of the uninsured automobile and (ii) any other person or organization jointly or severally liable together with such owner or operator for such bodily injury. . . .”

The parties have briefed and argued a number of contentions which are not material to the issue presented, which simply stated is — under the quoted provision of plaintiff’s policy, are the amounts of the awards to be reduced by the sums defendants received from Government Employees’ Insurance Company?

In its policy Government Employees’ Insurance Company agreed:

“To pay all sums which the insured or his legal representative shall be legally entitled to recover as damages from the owner or operator of an uninsured automobile because of bodily injury, sickness or disease, including death resulting therefrom, hereinafter called ‘bodily injury,’ sustained by the insured, caused by accident and arising out of the ownership, maintenance or use of such uninsured automobile; provided, for the purposes of this coverage, determination as to whether the insured or such representative is legally entitled to recover such damages, and if so the amount thereof, shall be made by agreement between the insured or such representative and the company or, if they fail to agree, by arbitration.”

In the insuring agreement of the standard form of automobile liability policy, the insurer agrees “to pay on behalf of the named insured. . . .” This is in marked contrast to the above quoted provision of the Government Employees’ Insurance Company policy. Further, the uninsured automobile endorsement to the Government Employees’ Insurance Company policy provides:

“Trust Agreement: In the event of payment to any person under this Part:
“(a) the company shall be entitled to the extent of such payment to the proceeds of any settlement or judgment that may result from the exercise of any rights of recovery of such person against any person or organization legally responsible for the bodily injury because of which such payment is made; . . . .”

In our opinion these provisions cannot be construed to support plaintiff’s contention that the payments made by Government Employees’ Insurance Company were made “on behalf of” the insured motorist. Its liability arose from its contractual relationship with its named insured, and the payments which it made to defendants were not made by or on behalf of the owner or operator of the uninsured automobile. It is true that under the terms of the endorsement the amounts payable are those which defendants are legally entitled to recover from the uninsured motorist, but the sole effect of this provision is to determine the amount of Government Employees’ Insurance Company’s contractual liability.

We next consider whether Government Employees’ Insurance Company is "any other person or organization jointly or severally liable together with such owner or operator for such bodily injury.”

We have searched the uninsured motorist endorsement to its policy and have failed to find, and plaintiff has failed to point out, any language which makes it so liable.

Plaintiff argues that because the basis of defendants’ claims is the personal injuries caused by the uninsured motorist, they are entitled to but one satisfaction of any amounts due for their injuries.

We have examined the cases cited by plaintiff in support of this contention and find them inapplicable to the facts here presented. Ryan v. Monson, 33 Ill App2d 406, 179 NE2d 449, and Aldridge v. Morris, 337 Ill App 369, 86 NE2d 143, involve payments by joint tort-feasors; in Niekamp v. Allstate Ins. Co., 52 Ill App2d 364, 202 NE2d 126, the policy contained a specific provision with respect to payments under a Workmen’s Compensation law; Vignali v. Farmers Equitable Ins. Co., 71 Ill App2d 114, 216 NE2d 827, is so clearly distinguishable as to require no further discussion.

In Allstate Ins. Co. v. Conglis, 33 Ill App2d 370, 179 NE2d 434, this court, at page 372, said: “The primary purpose in construing an insurance contract is to give effect to the intention of the parties as expressed therein. Where there is no ambiguity relative to the terms and conditions of the policy, the intention of the parties must be determined from the language of the policy alone, unless such construction would lead to unreasonable or absurd consequences.”

The policy provision is explicit in its terms, and this court may not inject terms and conditions different from those therein contained. Lentin v. Continental Assur. Co., 412 Ill 158, 105 NE2d 735. The sums due as the result of the arbitration award are to be reduced only by the types of payment specifically enumerated, and the payments by Government Employees’ Insurance Company are not of those specific types.

Plaintiff also argues that by reason of the settlement with Government Employees’ Insurance Company the following exclusion applies, and it is thus relieved of liability. The pertinent provision of its policy is:

“This endorsement does not apply:
“(a) to bodily injury to an insured with respect to which such insured, his legal representative or any person entitled to payment under this endorsement shall, without written consent of the company, make any settlement with any person or organization who may be legally liable therefor;”

During oral argument, in reply to a question by the court, counsel for plaintiff stated that although the general rule is that an insurer, having denied liability under its policy, cannot insist that the insured be bound by the provisions which inure to the insurer’s benefit (see Sims v. Illinois Nat. Cas. Co. of Springfield, Illinois, 43 Ill App2d 184, 193 NE2d 123; Dinn Oil Co. v. Hanover Ins. Co., 87 Ill App2d 206, 230 NE2d 702), defendants had, under the terms of the arbitration agreement waived this point.

We cannot agree. Paragraph 2(a) of the arbitration agreement provides that one of the issues to be determined by the arbitrators is “whether all of the terms and conditions of the endorsement . . . have been complied with by claimants (defendants) . . . .”

The language of the agreement reserving for determination by the court the “effect of previous payments . . .” does not reserve the issue of consent. In the absence of a specific waiver in the arbitration agreement of the effect of the denial of liability, we hold that plaintiff cannot now rely on the exclusion.

For the reasons herein set forth the decree of the Circuit Court of Cook County is reversed, and the cause remanded to the Circuit Court of Cook County, with directions to enter judgments in favor of defendants on their counterclaim in the sums enumerated in the award of the arbitrators, and for costs.

Judgment reversed and remanded with directions.

MORAN and EBERSPACHER, JJ., concur.


text:
    Rolf Forsberg, Plaintiff-Appellee, v. Meyer Braiterman, Four Wheels, Inc., a Corporation, and or Z Frank, Inc., an Illinois Corporation, Defendants-Appellants.
    Gen. No. 52,241. (Abstract of Decision.)
    First District.
    October 31, 1968.
    Andrew J. Farrell, of Chicago, for appellants; Carmen V. Speranza, of Chicago, for appellee.
   Opinion by PRESIDING JUSTICE ABRAHAMSON. Not to be published in full.


author: MR. PRESIDING JUSTICE BURMAN

text:
    Bernice Mattioda, Plaintiff-Appellee, v. Omer L. Mattioda, Defendant-Appellant.
    Gen. No. 50,887.
    First District, First Division.
    November 4, 1968.

      Jacobs & Lieberman, of Chicago (Eugene Lieberman, of counsel), for appellant.
    Robert M. Woodward, of Chicago, for appellee.
   MR. PRESIDING JUSTICE BURMAN

delivered the opinion of the court.

This is an appeal from orders of the Divorce Division of the Circuit Court, finding the defendant guilty of wilful contempt for failure to pay alimony, child support and mortgage payments in a separate maintenance action. The defendant also appeals from certain orders to pay support, mortgage and arrearages. A motion to dismiss the appeal on the grounds that the defendant-appellant failed to file a sufficient record and abstract and that the notice of appeal was not filed within the time required was made by the plaintiff-appellee and taken with the case. The motion to dismiss the appeal has been considered and is denied.

We must note here that the defendant filed his brief on December 16, 1965, but that the plaintiff did not file her brief until June 18, 1968. We were told during oral argument that the delay was due to the attempt to settle the matter amicably.

The record shows that the parties have been married since 1941, have one married daughter and one daughter, Sharon, who was fourteen years of age in January 1962. In 1952, they purchased a home subject to a mortgage. The parties resided together as husband and wife until about December 28, 1961, and on January 9, 1962, the plaintiff-wife filed the Complaint for Separate Maintenance. The defendant’s appearance was filed by Peter J. Tatoolis, his attorney, although it appears he was not served with summons. An order was entered by Judge William V. Daly on June 28, 1962, after hearing testimony of the parties, awarding the plaintiff $68 per week for temporary alimony and for temporary support of the minor child, Sharon. The order further recited that it was predicated upon the representation of the defendant that his present earnings averaged $92 per week. The plaintiff was also allowed $150 as and for her temporary attorney’s fees. On July 2, 1962, Attorney Tatoolis withdrew as defendant’s lawyer.

On March 18, 1963, the defendant was adjudged in default for failure to file an answer or otherwise make an appearance and the case was heard ex parte by Judge Herbert R. Friedlund. Mrs. Mattioda, plaintiff, testified that her husband deserted her in December 1961. She also testified that the defendant was in arrears about $1,450 and had not yet paid her allowance for attorney’s fees. Although the plaintiff was not sure how much her husband’s take-home pay was, she thought it was over One Hundred Dollars a week. She stated that title to the house was put in a trust with herself as beneficiary and that her husband had placed various mortgages on the house from time to time. Plaintiff also testified that the Apollo Savings and Loan Association sent several letters advising them they would have to pay additional attorney’s fees and other expenses if the payments on the mortgage were not made. She said her husband promised to make the payments, but did not. The court allowed plaintiff $50 a week for her support and for that of the minor child and $500 for her attorney’s fees. When plaintiff’s counsel argued that plaintiff had to pay $49.50 a month for insurance and $144.50 a month on the mortgage and that the defendant squandered about $20,000, the court stated that $50 a week was all he could give her for support on the basis of the defendant’s take-home pay. The court also told plaintiff’s lawyer to provide in the decree that the defendant convey and quitclaim whatever interest he may have in the real estate.

A decree for separate maintenance was signed by Judge Friedlund on April 10, 1963, in which the defendant was ordered to quitclaim all of his title and interest, if any, to the realty, to his wife; that he pay $1,450 arrearage on the previous court order for support; that he pay $50 per week support for plaintiff and for the minor child; and that he pay $500 to plaintiff’s counsel for attorney’s fees.

One week later, on April 17, 1963, the plaintiff came before Judge Nathan Cohen with a petition for a rule to show cause. Judge Cohen entered an order that an attachment issue against the defendant for his wilful failure to pay $1,450 support and also his failure to pay the monthly mortgage payments he repeatedly promised to make. On April 29, 1963,-the court ordered defendant to pay $80 by April 30, and the matter was continued to May 23. On that day, Judge Cohen heard plaintiff’s petition for a rule to show cause. The defendant was ordered to continue paying $50 a week.

On June 17, 1963, plaintiff filed another petition for a rule to show cause. She alleged that in addition to the $2,207 due under the separate maintenance decree as of May 17, the defendant should be required to pay the sum of $1,265.88. On June 21, 1963, an order was entered by Judge Cohen finding that the defendant was in arrears for support in the sum of $1,753. The court also found that the defendant owed $650 to the plaintiff’s attorney and that the defendant had wilfully failed to comply with the orders of the court. Judge Cohen ordered the defendant to pay $40 per week for the support of plaintiff and for the minor child, $100 attorney’s fees, the sum of $200 on his arrearages within ten days, and thereafter the sum of $10 per week on support arrearage and $10 per week on the arrearage due to counsel fees.

On July 24, 1963, plaintiff again filed a petition for a rule to show cause alleging that the defendant wilfully refused to comply with the orders of the court. An answer was filed by the defendant two days later in which he alleged that he was not guilty of wilful conduct, but rather had paid plaintiff $40 per week for support as ordered by Judge Cohen on June 21. He further alleged that the plaintiff was harassing him by bringing a multiplicity of rules to show cause making it impossible for him to comply with the various court orders. On July 29, 1963, Judge Sigmund J. Stefanowicz entered an order upon plaintiff’s petition for a rule to show cause ordering the defendant to pay plaintiff an additional $2 per week for twenty weeks until the disputed payment of June 22,1963, was paid.

On August 20, 1963, Judge P. A. Sorrentino heard the matter concerning mortgage payments and school tuition of the minor child. This matter had been heard by Judge Cohen on June 17, 1963, but had been set for rehearing on June 27, then July 26, and finally August 20. Judge Sorrentino found that the defendant had promised to make the mortgage payments and that “[s]aid payments became due by reason that Defendant caused a mortgage to be placed on her [plaintiff’s] home and used the monies mainly for his own personal use and pleasure. . . .” After crediting the defendant with $700 he had paid on the mortgage, the Judge found that the defendant was indebted to the plaintiff in the sum of $2,988.38, and was indebted to his daughter, Sharon, for tuition, in the sum of $100. The defendant was ordered to pay this arrearage at the rate of $50 a month in addition to the arrearage the defendant was already ordered to pay under the order of June 21. Also, the defendant was ordered to pay monthly mortgage payments of $109.50 each month.

A little over two years later, on September 10, 1965, plaintiff filed another verified petition for a rule to show cause. The plaintiff alleged that the defendant caused a mortgage to be placed in the sum of $17,000 and although he agreed to pay $144.50 a month he has wilfully refused and failed to do so; that the holder of the mortgage had repeatedly threatened to file foreclosure proceedings and in order to avoid foreclosure the plaintiff was compelled to make payments which she could not afford; and that the mortgage was in default for nonpayment in the sum of $5,810, and the defendant was also in arrears for support and attorney’s fees in the sum of $2,250. On that same day the defendant filed a verified petition and answer in which he alleged, among other things, that plaintiff was aware at all times that the defendant, in Amone v. Mattioda, 59C 11545, had been ordered under pain of imprisonment to pay $12,000 to certain creditors, and that upon failure to pay at least $150 per month upon said judgment, the defendant would be put in jail; that the payment of money called for' by the various orders came to $117.50 per week out of his total salary of $92 per week; and that the plaintiff was employed and earned at least $60 per week. The defendant prayed that the rule to show cause be quashed; that the order requiring him to pay mortgage payments be vacated and set aside; that the support order and decree of separate maintenance and all orders subsequent thereto be declared void; and that since the minor child would reach her majority in October 1965, the order of support should be modified.

It appears from a transcript of the record that the parties appeared before Judge Fred W. Slater on September 9, 1965. The respective attorneys argued about the petitions and orders that had been filed, but no evidence was heard. Afterwards the court stated, “I’m not going to sit here and act as an Appellate Court over all these orders. I’m going to deny, then you can take it all up on appeal. I’m not going to sit here and act as an Appellate Judge.” After more argument the court stated “There will be a finding of contempt and stay of execution for twenty-one days. See that he comes in here with some plan that is acceptable. We have to make it a stay of execution until the 20th of October.”

An order was signed by Judge Slater on September 10, 1965, reciting that the petition of defendant to vacate all previous orders and the decree of separate maintenance was denied; that the defendant was found to be in arrears to the sum of $8,160; that defendant was in contempt of court for wilfully failing to pay this sum; and that defendant be committed to the County Jail. On September 24, 1965, the order of September 10 was changed by Judge Slater. The order stated that after a hearing to show cause it was found that the defendant was guilty of wilful contempt for his refusal to pay $8,160 and ordered his imprisonment for six months unless he should purge himself of contempt. The defendant was imprisoned until released by order of this Court about a month later.

The defendant-appellant appeals from the order of the Circuit Court entered on September 10, 1965, which found him in arrears in the amount of $8,160 and committing him to jail; the order of September 24, 1965, committing him to jail for six months; the order entered on September 29, 1965, denying him his right to present instanter his petition for mitigation and offer to purge himself and from the orders of June 10, June 17, and June 21,1963, as being void.

The order of commitment recites that the defendant is in arrears in the sum of $8,160. Part of the arrearage is unpaid installments on the mortgage. We have determined that it was error to include mortgage payments.

At the ex parte hearing in the separate maintenance suit held on March 18, 1963, Judge Friedlund orally told plaintiff’s counsel that he should provide in the separate maintenance decree that the defendant quitclaim whatever interest he had in the real estate and that $50 a week be fixed for support. When plaintiff’s counsel pointed out to the court that in addition to her necessary expenses the plaintiff had to pay $144.50 a month on the mortgage and $49 a month on insurance, the court replied that he could not allow the plaintiff any more than $50 a week based on the defendant’s earnings. Decree for separate maintenance entered on April 10,1963, found that the plaintiff was the sole owner of the property and the defendant was ordered, among other things, to quitclaim any interest he may have had to his wife. We note that the court did not reserve jurisdiction in the matter of the mortgage payments, etc., but concluded the matter by ordering the defendant to quitclaim his interest in the house. In a subsequent post-decree order entered by Judge Cohen, an attachment was issued against the defendant which included mortgage payments “which he promised repeatedly to make.”

Section 23.2 of the Separate Maintenance Act (Ill Rev Stats 1967, c 68, § 22 et seq.) provides that the process, practice and proceedings under the Act shall be the same as provided for in the Divorce Act (Ill Rev Stats 1967, c 40, § 1 et seq.). The Divorce Act provides in section 7 that the process, practice and proceedings under the Act shall be the same as in other civil cases except as otherwise provided by this Act. As is well known, section 19 of the Divorce Act provides, in part, that “The court may, on application, from time to time, make such alterations in the allowance of alimony and maintenance ... as shall appear reasonable and proper.” (Ill Rev Stats 1967, c 40, § 19.)

The cases uniformly hold that an alteration will be made only when the conditions and circumstances of the parties have materially changed since the entry of the original decree. Green v. Green, 86 Ill App2d 362, 229 NE2d 565; Gregory v. Gregory, 52 Ill App2d 262, 202 NE2d 139. The decree is final as to the circumstances and conditions of the parties as of the date of its entry and the court can, therefore, only consider such changes that have occurred subsequently. Nye v. Nye, 411 Ill 408, 105 NE2d 300.

The record reveals that in addition to requesting support money when the matter of separate maintenance was heard ex parte the plaintiff requested that the defendant be ordered to pay the mortgage payments due on her house. This request was refused and the decree recited that the defendant quitclaim all his title and interest in the property, if any, to plaintiff. Thus, the matter of mortgage payments was adjudicated against the plaintiff. No evidence was offered to prove that the defendant’s circumstances had changed materially since the entry of the decree and we hold that all orders entered thereafter which include mortgage payments due to the plaintiff are void.

We turn now to the arrears in support payments and the order finding the defendant in contempt for failure to comply with the various court orders and the separate maintenance decree. It is well settled in Illinois that the court has the power to commit defendant to jail for failure to comply with orders and decrees in a separate maintenance suit. De Salvo v. De Salvo, 7 Ill App2d 16, 128 NE2d 594 (abstract). A spouse’s failure or refusal to pay when he has income or property available which can be used for that purpose is generally regarded as wilful, and justifies an order committing such spouse for contempt. However, the court’s power to enforce the payment of support money or attorney’s fees by contempt is limited to cases of wilful and contumacious refusal to obey the order of the court. Wick v. Wick, 19 Ill2d 457, 167 NE2d 207; Mesirow v. Mesirow, 346 Ill 219, 178 NE2d 411. Defendant’s failure to pay as ordered is not punishable as contempt when he is without fault unable to pay. Kadlowsky v. Kadlowsky, 63 Ill App 292. In determining the propriety of orders in enforcement proceedings it is necessary, however, that each case be viewed in the light of its own peculiar facts. Wick v. Wick, 19 Ill2d 457, 461, 167 NE2d 207.

The record indicates that the defendant may have been uncooperative and may have caused numerous court appearances by plaintiff and her attorney. However, the record also shows that the judge who committed the defendant heard no evidence as to whether defendant’s failure to pay was a wilful and contumacious refusal to obey the order of the court. In addition the order erroneously includes mortgage payments. An examination of the record suggests the equally plausible explanation that the defendant was unable to comply with the court’s orders. Since a party may not be imprisoned for contempt unless his disobedience of court orders is wilful or unless he has voluntarily created the disability for the purpose of avoiding the payment of support, the order committing the defendant to jail for six months must be reversed and remanded.

For the reasons stated, the order committing the defendant to jail is reversed and remanded with directions to hear evidence as to amount of support money defendant has failed to pay and to also determine whether defendant’s refusal was wilful and contumacious. Also, that portion of the arrearage due to mortgage payments is not to be included in the computation of what the defendant has failed to pay the plaintiff.

On October 9, 1968, a petition was filed in this court seeking to hold the defendant in contempt of court which was taken with the case. This petition is to be considered by the trial judge in the light of this opinion.

Reversed and remanded with directions.

ADESKO and MURPHY, JJ., concur.

       It appears from the record that the defendant has also been involved in another lawsuit where he was ordered to pay $12,000 to certain creditors at $150 per month. Apparently, if he did not make these payments he would be put in jail.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Earl Jamison, Defendant-Appellant.
    Gen. No. 52,139. (Abstract of Decision.)
    First District, First Division.
    November 4, 1968.
    Gerald W. Getty, Public Defender of Cook County, of Chicago (Herbert Becker, Norman W. Fishman and James J. Doherty, Assistant Public Defenders, of counsel), for appellant; John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and John M. Goldberg, Assistant State’s Attorneys, of counsel), for appellee.
   Opinion by PRESIDING JUSTICE BURMAN. Not to be published in full.