author: MR. JUSTICE ADESKO

text:
    Martin J. Hedrich, Plaintiff-Appellee, v. The Borden Company, a Corporation, and Angelo A. Accurso, Defendants-Appellants.
    Gen. No. 51,977.
    First District, First Division.
    October 14, 1968.

      Baker & McKenzie, of Chicago (Francis D. Morrissey, Thomas F. Bridgman, and John W. Dondanville, of counsel) , for appellants.
    Thompson & Thompson, of Chicago, for appellee.
   MR. JUSTICE ADESKO

delivered the opinion of the court.

Plaintiff brought this action to recover damages for personal injuries sustained on December 1, 1964, when a truck owned by the defendant Borden Company and operated by defendant Angelo A. Accurso, struck him while he was standing in the front entranceway of a Woolworth’s store on the Southeast corner of Milwaukee and Ainslie Avenues in the City of Chicago. After a trial before a jury, plaintiff recovered a $175,000 verdict against both defendants. Judgment was entered on the verdict and the post-trial motion of the defendants was denied. This appeal is prosecuted from the entry of the judgment and the overruling of the post-trial motion. No questions are raised on the pleadings.

Three principal points are raised on this appeal. First, Borden argues that its relationship with Accurso was that of principal-independent contractor and not that of master-servant, and consequently the verdict against Borden should be reversed. Secondly, both defendants argue that the jury’s verdict was so unreasonable and palpably excessive under the record as to require a new trial. Finally, both defendants argue certain trial errors with respect to improper questioning of plaintiff regarding his family status, the introduction into evidence of colored photographs of the plaintiff’s injury, and alleged misconduct by plaintiff’s counsel which was calculated to appeal to the passion and prejudice of the jury.

The facts relating to the accident are relatively simple. An independent witness testified she was waiting for a green light at the Northeast corner of Ainslie and Milwaukee Avenues when she observed a black car and a Borden truck, both traveling very fast, proceeding northbound on Milwaukee Avenue. It is undisputed that Accurso was driving the Borden truck. As the traffic light at the corner changed from green to red for northbound Milwaukee Avenue traffic, the two vehicles attempted to stop. The Borden truck, in attempting to avoid hitting the rear of the black car, turned towards the curb and traveled onto the sidewalk. The black car sped away, and its operator and owner remain unknown. Plaintiff, who was waiting in front of the Woolworth store on the Southeast corner of Milwaukee and Ainslie, heard the screech of the truck’s brakes and attempted to jump out of the way as the truck came up onto the sidewalk. His attempt to avoid being hit by the truck was unsuccessful, and his left foot was struck by the front portion of the truck, knocking his shoe off. Defendant Accurso, called as a witness by plaintiff under section 60 of the Civil Practice Act, Ill Rev Stats (1965), c 110, § 60, testified that he was traveling North on Milwaukee Avenue when a black car began to pass him on the left. The car then began to cut the truck off by pulling back in front of the truck, and then, in an attempt to stop for the red light, abruptly applied his brakes. In an effort to avoid hitting the black car, Accurso swung the truck to the right but was unable to avoid going up on the sidewalk. The truck went over the curb and into the entrance of the Woolworth store.

Plaintiff sustained a comminuted compound fracture of the os calcis of his left foot. The dislocation tended to crush all of the soft tissue and there was an evulsion of the skin. In addition to the surgical procedures to reset the bones, certain dead skin was denuded, and later skin grafts in the area were attempted. Plaintiff developed a bone infection known as osteomyelitis and ran a fever for a period of approximately five weeks. There has been a certain amount of deformity to the foot and loss of size in the left leg. Plaintiff still suffers pain, and when standing on his foot for a period of time it begins to swell. Medical testimony indicated that this swelling condition and the intermittent pain was a permanent condition. Plaintiff walks with a slight limp and possible future surgery has not been recommended, due to the fact that the heel had a good solid boney union and the skin grafts had taken as well as could be reasonably expected.

No question is raised on this appeal with respect to the propriety of the jury’s finding that defendant Accurso acted in a negligent manner in driving the Borden truck up onto the sidewalk and striking the plaintiff. The testimony of the independent witness and the defendant Accurso in describing the way the accident occurred was resolved by the jury in favor of the plaintiff, and the record amply supports the jury’s verdict.

The facts relating to Accurso’s employment status with Borden were testified to by Accurso and Clarence T. Sorenson, the sales manager from Borden’s pursuant to section 60 of the Civil Practice Act, Ill Rev Stats (1965), c 110, § 60. The testimony of Accurso was substantially as follows : that at the time of the accident, the truck Accurso was driving was loaded with milk which he was delivering to various customers. The truck belonged to Borden, was stored on Borden’s private premises when not in use, and painted on the side of the truck was the legend “Permit No. 3.” This number was the permit issued by the City of Chicago to Borden Company on their request and application for such permit. Accurso also had a milk permit number of his own which was painted on his own truck. The rules of the Chicago Health Department require all milk vending trucks to display the permit number of the vendor on the side of the truck. (Municipal Code of Chicago, c 154, § 8.) Accurso was aware of this ordinance, but did not indicate his permit number on the side of the Borden truck. The reason Accurso was not driving his own truck was that it was out of service, and according to his own testimony, “not worth fixing up.” He had been driving the Borden truck for approximately one and one-half months, apparently at no cost to him, since Borden Company handled all servicing and maintenance that would be required on the truck. Accurso abided by all Borden Company rules concerning the operation of Borden trucks. Prior to vending milk for Borden Company, Accurso had dispensed milk for another company. However, his relationship with Borden has been the same since he first started with them in March, 1963, up to the present time and Borden was the only company for whom he was delivering milk. From time to time Borden would give him new customers to serve, to whom he promptly attended. Accurso frequently made collections for Borden, and all checks and monies received from customers payable to Borden Company were promptly turned over to it. Sorenson, Borden’s sales manager, testified that there was a company rule requiring any person driving a company vehicle who was involved in an accident with that vehicle to report such accident to the company. In accordance with this rule, Accurso notified Borden immediately of the accident he had with plaintiff. Accurso was a member of the Milk Drivers’ Union, Local 753, and paid his regular union dues to such union. The president of the Milk Drivers’ Union, Local 753, testified that a contract between the Union and Borden Company was entered into on behalf of all of the members of the Union, including those persons who were designated as “vendors.” Accurso admitted that the Union negotiated working conditions for him with the Borden Company. The sales manager, Sorenson, testified that he was not totally familiar with the contract between the Union and Borden’s, but stated that certain portions of the contract did apply to vendors. Over defendant’s objection, the contract was introduced into evidence. Borden paid Accurso $102 monthly pursuant to the Union contract as compensation for advertising Borden products. Borden also made contributions to the Union Welfare Fund on behalf of Accurso. The remaining portion of Accurso’s obligations to the Union Welfare Fund came out of his union dues.

Appellant Borden Company contends that Accurso was not its agent or employee, but rather a self-employed milk vendor who had business dealings with the Borden Company. Borden also contended that the allegation of agency made by the plaintiff in his pleadings, and the evidence adduced at the trial, does not reveal any competent evidence to sustain such allegations, as the evidence as to ownership of the truck, permit number, filing of the accident report, repair and storage of the vehicle, collection of monies and checks by Accurso for Borden Company merely created a procedural presumption of agency, which in fact was rebutted by the testimony of Accurso and Mr. Sorenson, sales manager of the Borden Company. Borden insists that nowhere in the record is there any evidence indicating that the Borden Company had a right to control or direct the activities of Accurso.

Once the ownership of the truck in question had been established, a presumption arose that the vehicle was being operated by the owner’s agent, and a prima facie case for recovery had been made. However, plaintiff did not rely solely upon a procedural presumption of agency between Accurso and the Borden Company. Plaintiff went beyond the mere establishing of the ownership of the truck; he established that Accurso was a collection agent for Borden; that he used Borden’s equipment, at no expense to him, for deliveries of milk to customers; that he abided by the rules of the Borden Company concerning accident reports, repairs and storage of the Borden vehicle ; that Accurso maintained exclusive dealings with the Borden Company; that his delivery activities were conducted over a regular route; and that Borden exercised some control over him in the transaction of several of the typical duties a Borden Company employee would ordinarily perform. The presumption of agency was not rebutted or destroyed by the contravening evidence of Accurso and Sorenson, and the weight to be given the presumption, whether it had been overcome, and whether the agency had been proved were, ordinarily, questions for the trier of fact. It is obvious from the evidence introduced at the trial that plaintiff did not rely solely upon the procedural presumption of agency created by the fact that Accurso was driving Borden’s truck in connection with the delivery of milk. It is evident from the record that there was an intent on the part of Accurso to serve the interests of the Borden Company as well as his own interests in the business arrangement the two parties had established. In the case of Bristol & Gale Co. v. Industrial Commission, 292 Ill 16, 126 NE 599 (1920), the court stated:

It is impossible to lay down a rule by which the status of a person performing a service for another can be definitely fixed as an employee or as an independent contractor. Ordinarily no single feature of the relation is determinative but all must be considered together.

Courts are in agreement that the presence in any given case of one or more of the recognized indicia of the status of independent contractor is not necessarily conclusive and that there is no absolute rule for determining whether one is an independent contractor or a servant, but that each case must be determined on its own facts. In Gomillion v. Forsythe, 218 SC 211, 62 SE2d 297 (1950), the court stated that ownership of the motor truck and maintenance of such truck by the milk distributing company for the use of Mr. Bell, the truck driver, was a circumstance to be considered by the jury, along with all other evidence in the case, in determining whether Mr. Bell was an independent contractor or a servant of the milk distributing company. (See annotation in 53 ALR2d 183 (1957), for a discussion of cases concerning route drivers as independent contractor or employee for purposes of the respondeat superior doctrine.)

Defendants maintain that Trzaska v. Bigane, 325 Ill App 528, 60 NE2d 264 (1945), is authority for the proposition that the activities of Accurso were that of an independent contractor. The Trzaska case is readily distinguishable from the instant case in that in Trzaska, the purported agent, Buchunas, owned his own truck which was used to make all deliveries, obtained the license for it, paid for its upkeep, fuel and maintenance, made deliveries for his purported employer only when requested by them to do so, collected money only when requested by them to do so, was free to take a load or not as he pleased, and was also in business for himself delivering coal, and had made deliveries for other dealers during a two-year period while also making deliveries for his purported employer. The court in Trzaska held that Buchunas was an independent contractor, and not an employee. Considering all the elements and activities of Accurso with the Borden Company, we are of the opinion that the issue of agency was legitimately submitted to the jury and was properly resolved. “Unless the relationship is so clear as to be undisputed, the relationship between principal and agent is a question of fact for the jury to determine from all the evidence.” Hulke v. International Mfg. Co., 14 Ill App2d 5, 142 NE2d 717 (1957). The denial of defendant’s, the Borden Company, motion for a directed verdict and judgment notwithstanding the verdict by the trial court was not error.

Considered next is the issue of whether error was committed at the trial due to the following:

Introduction by the plaintiff’s counsel into evidence testimony of plaintiff relating to his family status; introduction into evidence of certain colored photographs of the plaintiff’s injury and the exhibition of the plaintiff’s injured foot to the jury; and the alleged misconduct of plaintiff’s counsel during the trial. Defendants contend that the aforementioned were designed and calculated to elicit the sympathy, passion and prejudices of the jury for the purposes of enhancing damages, and that any one alone was sufficient grounds for granting a new trial. During the course of direct examination of the plaintiff, Martin Hedrich, his attorney asked the following questions : Defendant objected to this testimony of plaintiff, and moved for a mistrial; the court denied the motion for a mistrial. Plaintiff further testified regarding his recreational activities with his children, ice skating and sledding, and with his wife, square dancing. While defendants concede that it was proper and relevant to show the nature of the recreational activities of the plaintiff, they contend that the mention of the fact that he had a family was prejudicial to them. We are of the opinion that this incidental disclosure that plaintiff had “children” was not prejudicial to defendant’s cause to warrant a new trial. Nowhere in the record do we find any testimony or suggestion that plaintiff’s children were in any way dependent upon the plaintiff for support, care or maintenance, nor how many children Martin Hedrich had, or what their ages were. In Brayfield v. Johnson, 62 Ill App2d 59, 210 NE2d 28 (1966), the plaintiff’s counsel made mention in his closing argument to the jury that the plaintiff had a wife and family, and defendant cited this as error on appeal. The court disposed of the matter stating:

“Q. By the way, before this accident, in addition to your business activities, did you engage in any recreational activities ?
“A. Yes, on occasion.
“Q. What would you do; what was the nature of that?
“A. Well, take my children and my friends out to the park.”
“The record discloses that there was no undue emphasis on the fact that plaintiff had a wife and family to support. There was no disclosure of the number of plaintiff’s children nor of his family’s poverty, necessitous circumstances or financial difficulties.”

If family status is material to the issues of the case or provides some insight as to some element of the damage claimed, such evidence is not error. Postal Tel. Cable Co. v. Likes, 225 Ill 249, 80 NE 136 (1907); Chicago Union Traction Co. v. May, 221 Ill 530, 77 NE 933 (1906). In the instant case, the object of the testimony was not solely to enhance damages or calculated to arouse the sympathy of the jury.

Defendants are aware that it is within the sound discretion of the trial court as to whether colored photographs of an injury will be admitted into evidence, and whether an injured party will be allowed to exhibit his injury to the jury. Generally, photographs are admissible in evidence only when thejr may be helpful to an understanding of the facts, are material, accurate, relevant and correctly portray what they purport to show. Baggett v. Ashland Oil & Refining Co., 92 Ill App2d 433, 236 NE2d 243 (1968); Darling v. Charleston Memorial Hospital, 50 Ill App2d 253, 200 NE2d 149 (1964). While colored photography is relatively new and cases involving the admissibility of colored pictures are not numerous, there are several recent cases which have held that the admission of colored photographs, under certain circumstances, is not error. In Murphy v. Lindahl, 24 Ill App2d 461,165 NE2d 340 (1960), the court makes the following comment with reference to colored photographs:

“This description undoubtedly aroused a normal emotional reaction on the part of the jury. We think, therefore, that the information improperly given as to plaintiff’s family, the reference to insurance in the testimony, or even the admission of gruesome colored photographs, which we believe did not tend to prove any material issue, did not aggravate the emotional reactions of the jury, sufficient to warrant a reversal for prejudice.”

Exhibition of the injured foot in conjunction with the photographs gave the jury an opportunity to observe the injury, and such a procedure was solely at the trial court’s discretion. The identical procedure was employed in Garner v. Burns Mid-Town, Inc., 346 Ill App 162, 104 NE2d 506 (1952), where the court stated:

“The defendant also assigns as error the admission of colored pictures of the boy’s leg, taken about two months after the injury. If there was any error in the admission of these pictures, the fact that the boy exhibited his injury to the jury at the time of the trial, so that the jury had the opportunity to see for itself the exact nature and extent of the injury, would cure this.”

For a further discussion of the admissibility of colored photographs into evidence, see the annotation in 53 ALR2d 1102 (1957). We do not feel that such colored photographs of the plaintiff’s injury, taken some time after the occurrence of the injury and purporting to portray the appearance of his foot at the present time, would have such prejudicial effect so as to outweigh their probative value to the jury, and hence there was no error in their admission into evidence. There was no claim by the defendants that there was any distortion or inaccuracy in photographs other than the fact that they were in color, rather than black and white, and calculated to excite sympathy in the minds of the jury. The photographs were representations of the condition of the plaintiff’s injured foot at the time they were taken, and did not exaggerate the seriousness of the injury nor give false impressions of the disability. Plaintiff was allowed to exhibit his injured foot to the jury because the expert witness, Dr. Roth, recommended that the foot be exhibited so he could explain and point out to the jury the medical treatment performed on the injured area. Under these circumstances, the trial court did not abuse its discretion in allowing the plaintiff to exhibit his injured foot to the jury over defendant’s objection.

Upon our examination of the record, we conclude that plaintiff’s counsel’s remarks and questions did not prejudice the defendant, the Borden Company, from a fair hearing on the issue of agency, nor were the questions improper as to substance.

Many of the questions plaintiff’s counsel directed at the witnesses at the trial were asked on cross-examination and pursuant to section 60 of the Civil Practice Act, Ill Rev Stats (1965), c 110, § 60, in an attempt to elicit information germane to the issues of the case. On cross-examination wide latitude is allowed in questioning the witness. Meyer v. Williams, 15 Ill App2d 513, 146 NE2d 712 (1958). Plaintiff’s counsel was not responsible for any misconduct as alleged by defendants which would necessitate the granting of a new trial.

We now consider the defendant’s contention that the verdict of $175,000 in this case is excessive. The trial court denied the defendant’s post-trial motion for a new trial, regarding the excessiveness of damages, and such denial by the trial court of a motion to set aside a verdict claimed to be excessive is entitled to weighty consideration upon review. Sarango v. E. L. Hedstrom Coal Co., 12 Ill App2d 118,138 NE2d 829 (1957). The question presented is whether or not the total amount of the verdict falls within the necessarily flexible limits of fair and reasonable compensation or is so large as to shock the judicial conscience. In 2 ILP, Appeal and Error, § 782, it is stated:

“. . . the reviewing court will not disturb an award of damages unless the verdict is so excessive or palpably excessive as to indicate that the jury were moved by prejudice, passion, or improper motive, or so flagrantly outrageous and extravagant as to strike everyone with the enormity and injustice of it, or unless the award is not supported by the facts in the record and the court is convinced that it is excessive, or it is apparent from the record that the damages assessed are out of due proportion to the injury and the loss proximately resulting therefrom

Although it is the aim of the law to attain a reasonable balance between the amount awarded as damages and the extent of the suffering, there is no precise rule by which an award of damages can be fixed in an action for personal injuries because such compensation does not lend itself to mathematical computation. Saran-go v. E. L. Hedstrom Coal Co., 12 Ill App2d 118,138 NE2d 829 (1957). While the determination of an award of damages is peculiarly within the province of the jury, the Appellate Court’s power to review an excessive verdict has been acknowledged in Smith v. Illinois Cent. R. Co., 29 Ill App2d 168, 172 NE2d 803 (1961), where the court stated:

. . this State has always followed the common-law rule that an excessive verdict could be and should be corrected in the Trial Court by remittitur or a new trial, and that a failure or refusal of the Trial Court to act in a proper case was error which should be corrected in the Appellate Court.”

Goertz v. Chicago & N. W. Ry. Co., 19 Ill App2d 261, 153 NE2d 486 (1958) and Pitrowski v. New York, C. & St. L. R. Co., 6 Ill App2d 495, 128 NE2d 577 (1955), are in accord with this view. Plaintiff’s doctor, medical and hospital bills were $9,504.05; his lost earnings from the date of the occurrence, December 1, 1964, to the approximate date of the trial, June 1, 1966, were $14,736. The life expectancy of plaintiff was shown at the trial to be 23.3 years, of which 16.4 years represented the period that plaintiff would have still been active in the labor force as a journeyman plumber until his retirement at age 70. Plaintiff’s counsel calculated future lost earnings, reduced to a present cash value, at $120,785, making a total of past and future pecuniary loss in the sum of $145,061.05. However, this sum did not reflect that plaintiff conducted and supervised his own business, the Hygrade Plumbing Service, in addition to his activities as a journeyman plumber. Taking all this into consideration, together with all imponderable elements which might have been consideréd by the jury, and giving plaintiff the benefit of all doubt, we do not feel that the evidence justifies a judgment of more than $150,000, and that the verdict of the jury was clearly excessive.

It is therefore ordered that if the plaintiff will, within 20 days, file in the office of the clerk of this court, a remittitur in the sum of $25,000, as of the date of the judgment, then that judgment will be affirmed for $150,000 as of the date of the original judgment; otherwise the judgment will be reversed and the cause remanded for a new trial on the issue of damages only.

Affirmed upon filing remittitur within twenty days; otherwise reversed and remanded.

BURMAN, P. J. and MURPHY, J., concur.


source: Caselaw Access Project

author: MR. JUSTICE MURPHY

license: Public Domain

text:
    Barbara V. Rudolph and Donald Rudolph, Plaintiffs-Appellants, v. Betty R. Gersten and Chicago Title & Trust Co., Trustee, Trust No. 35734, DefendantsAppellees.
    Gen. No. 52,218.
    First District, First Division.
    October 14, 1968.
    Rehearing denied November 13,1968.

      Howard T. Savage, Arnold D. Goldstein and Elliott L. DuBois, of Chicago (Starke, Anglin, Savage, Frazin, Stewart & May, of counsel), for appellants.
    James P. Chapman, of Chicago, for appellees.
   MR. JUSTICE MURPHY

delivered the opinion of the court.

Plaintiff, Barbara V. Rudolph, daughter of defendant and counterclaimant, Betty R. Gersten, appeals from a decree which (1) dismissed plaintiff’s claim for a one-half interest in real estate held in a land trust, or its proceeds; (2) determined that a stock certificate held by plaintiff was a nullity; and (3) on unpaid notes admittedly executed by plaintiff, the decree awarded defendant a judgment against plaintiff for $8,010.71. In sum, plaintiff’s contentions on appeal are that the findings of the trial court are contrary to law and against the manifest weight of the evidence.

Considered first is that part of the decree which dealt with the land trust. On September 3, 1952, defendant, Betty R. Gersten, and her husband, Leo L. Gersten, parents of plaintiff, entered into a land trust agreement with the Chicago Title & Trust Company, as trustee, by the terms of which, as owners, they conveyed real estate to the trust company, in trust, with themselves named as beneficiaries, each owning 50% in joint tenancy with the right of survivorship.

Under date of March 14, 1961, defendant and her husband assigned to themselves and to plaintiff, Barbara V. Rudolph, “as joint tenants and not as tenants in common with right of survivorship,” all their rights, power, privileges and beneficial interest in the trust. The terms of the assignment included: “It is understood and agreed by the assignee, Barbara V. Rudolph, that the full power to direct the acts of the Trustee, Chicago Title & Trust Co. shall be in Leo L. Gersten and Betty R. Gersten acting jointly, or in the survivor of them in the event of the death of either Leo L. Gersten or Betty R. Gersten.” The assignment included an “Acceptance” signed by all three. It stated, “We accept the foregoing assignment subject to all of the provisions of said trust agreement.” It is not disputed that Barbara Rudolph did not give any consideration to her parents for the assignment.

Mr. Gersten died on December 20, 1961. At that time there were two parcels of real estate in the trust, from which Mrs. Gersten collected the income following her husband’s death. On January 5,1966, and at the direction of Mrs. Gersten, the trustee conveyed the real estate to a third person, who immediately reconveyed it to the trustee to be held in a new land trust, of which Mrs. Gersten was the sole beneficiary. Thereafter, one parcel was sold, and the sale proceeds were held pursuant to further order of court. Plaintiff commenced the instant action on January 10, 1966.

Plaintiff testified that her mother told her many times that “I owned one-half of the real estate and no one could take it from me. These conversations took place when only the two of us were present; my husband might have been there at the time. My husband had begun to manage the property in March of 1961. He and I helped move my father out so that the new tenants could move in. He did not receive any compensation for the management. He nor I never collected any rent,” — her mother collected all the income from real estate since December 20,1961.

Defendant, Betty R. Gersten, testified that the land trust assignment had been prepared at her direction by an attorney named Leo Ferdinand, who was deceased at the time of trial. On March 14, 1961, at defendant’s instruction, Barbara brought the assignment to Mr. Gersten’s room at the hospital. At that time defendant said to Barbara, “You know, ‘This has nothing to do with you during the lifetime of your father and myself.’ And she said, ‘Of course.’ ... I never made a statement to my daughter that she owned one half of the real estate involved herein and that no one could take it from her. Her name was on here as what I learned is a contingent beneficiary, because I had the power of direction. I would say yes, I had a conversation with her about this. These conversations took place in her house or my house and there wasn’t anyone else present except possibly her husband and probably the children may have been there. I never told her in any of these conversations that she owned one-half of the real estate involved herein and that no one could take it from her.” Barbara and Mrs. Gersten signed the assignment on March 14, 1961, and Leo L. Gersten signed it two days later.

As to the land trust assignment, the decree included the following findings:

e. . . . that said assignment amended the power of direction and restricted said power in that said power to direct the acts of the Trustee were limited solely in LEO L. GERSTEN and BETTY R. GERSTEN, acting jointly, or in the survivor of them in the event of the death of either of them and said restriction was placed specifically on the assignee BARBARA V. GERSTEN RUDOLPH only.
f. That said assignment was accepted by the three assignees and that the Trustee acknowledged receipt of the assignment amending the power of direction and acceptance thereof as having been lodged with the Trustee, and that this assignment, having been accepted by the assignees, and consented to by the receipt thereof by the Trustee, effectively amends and limits the power under the original Trust Agreement.
h. . . . That from the evidence, it appears that it was never the intention of LEO L. GERSTEN or BETTY R. GERSTEN to convey an irrevocable interest to BARABARA V. GERSTEN RUDOLPH, their daughter, until the time of the death of both LEO L. GERSTEN and BETTY R. GERSTEN. That it further appears that the daughter, the plaintiff herein, always permitted the mother, the defendant herein, to retain all of the income and always permitted the mother to manage, as her own, the property which was held in trust. That the conduct of the parties from the date of the assignment to the time subsequent to the death of the father and up to shortly prior to the filing of this suit evidences the intention that the daughter, BARBARA V. GERSTEN RUDOLPH, never treated said property or the income thereof as her own.
j. That the assignment was an attempt by the father and mother to avoid probate and was intended as a testamentary disposition of property. . . .
k. That the assignment as such was valid to pass a future interest but that the power of direction was retained by both the father and mother, the assignors herein, in that either one or both could effectively take away all rights by directing the Trustee to convey out the property. Said reserved rights were exercised by the mother, the defendant herein.
l. That the power to direct the acts of the Trustee reserved by the assignors could be exercised in any manner the assignors saw fit and that the said power was so exercised by the mother, BETTY R. GERSTEN, when she directed the Trustee to make a conveyance to GROSS and when she obtained a re-conveyance from GROSS to a new Trustee wherein she was the sole beneficiary.
m. That the rights of the daughter as a beneficiary were illusory until the death of both parents and not actual because there was never an intention to give any control to the daughter as to the property until the time of death of both the father and mother.
n. That at most, the daughter can claim part of the net rents during the period of time that she was a named beneficiary under the Trust, being from the date of the assignment to the date of the direction to convey out to GROSS, and even this claim is questionable ; but to avoid family discord, the Court, in exercising its. broad discretionary equitable powers, should allow said claim for the sake of family harmony.
o. That when the assignment was made, it was the intention of the father, LEO L. GERSTEN, to make a testamentary disposition of his property.
p. That the typewritten portion of the assignment of the Trust Agreement . . . supersedes the language of the original printed form of said Trust Agreement. . . . the Court must conclude that all of the parties to the Trust, namely: the trustee, the assignees and the assignors, were all bound by the amendment as set forth in the assignment and said amended power of direction must prevail.

As to the land trust, the decree (1) dismissed for want of equity plaintiff’s claim of interest in the real estate and the proceeds realized from the sale of parts thereof; (2) dismissed plaintiff’s claim for the money value of one-half interest in the property; and (3) allowed plaintiff’s claim for an accounting for one-half of the net profits from December 20, 1961, being the date of the death of Leo L. Gersten, to January 4, 1966, being the date of the exercise of the power of direction retained by defendant, Betty R. Gersten, which direction was given to the trustee to convey the aforementioned real estate to Gross, and upon which date any interest plaintiff, Betty R. Gersten, had in and under such trust ceased and was terminated forever.

At the outset, we note that defendant states that she has not cross-appealed from that part of the decree which allowed plaintiff’s claim for an accounting for one-half of the net income from the trust during the period between the assignment and the exercise of the power of direction by Mrs. Gersten, which terminated the trust. Therefore, the propriety of that part of the decree is not considered.

Plaintiff contends (1) that defendant had the burden of establishing by clear and convincing proof that in the execution of the assignment there was no donative intent on the part of Mr. and Mrs. Gersten. Plaintiff argues that the defendant failed to meet this burden of proof. Plaintiff also contends (2) “the ‘bundle of rights’ possessed by an Illinois land trust beneficiary is . . . divisible, and authorities in the area of land trusts are in complete agreement, and it is their firm conviction that, when the power of direction is held by less than all of the beneficiaries under a land trust, the holder of the power is acting in a fiduciary capacity for the remaining beneficiaries.”

Plaintiff cites no authority in support of the second contention. As to donative intent and the indicia of a valid gift, plaintiff cites Frey v. Wubbena, 26 Ill2d 62,185 NE2d 850 (1962), where the court said (p 70):

“There is no contention by the daughters that they contributed any funds for the investments in the joint tenancy personalty, but they rely upon the gift theory. There is a presumption that the taking or placing of title by a father in a child is a gift or advancement, and the burden is upon one questioning the gift to overcome the presumption by clear and convincing proof. . . . There is a further presumption of acceptance of a gift beneficial to the donee.”

Plaintiff also cites Houswerth v. Gill, 40 Ill App2d 281, 189 NE2d 409 (1963), where the court said (p 285):

“Finally, the fact that the plaintiff has been receiving the income from the stocks in question, pursuant to an agreement between the parties does not make the gift any less complete or absolute. It has been frequently held that a gift of stock may occur although the donor reserves the right to receive all the dividends therefrom.”

Defendant contends that she and her husband did not part with the exclusive dominion and control of the subject matter of the purported gift, but specifically retained unto themselves the exclusive power to direct the acts of the trustee, and carefully denied to plaintiff the right of control and direction she would have obtained but for the limiting language of the assignment. Therefore, plaintiff failed to prove one of the essential elements of her case — that the Gerstens had parted with exclusive dominion and control over the subject matter of the gift.

Defendant also cites Frey v. Wubbena, 26 II12d 62, 185 NE2d 850 where the court said (p 71) :

“Defendants contend that the placing of title to the various assets in joint tenancy did not create valid inter vivos gifts. This is predicated primarily upon the theory that there was lack of donative intent and that the purpose was to use joint tenancy as a device for testamentary disposition. Secondarily, it is asserted that the donor did not part with control over the property and hence there was no irrevocable delivery.”

And on page 72:

“We turn to the question of whether the acts of the intended donor amounted to consummation of his intent to make inter vivos gifts. In addition to donative intent, other elements must be present. The donor must part with exclusive dominion and control over the subject of the gift and there must be delivery. The decedent surrendered his exclusive right to the several items when he voluntarily placed ownership in himself and others. The rights of the co-owners were equal to his own and by the transfer of his funds into joint tenancy obligations he gave up exclusive dominion and control. Each of the co-owners has an equal right to possession of the evidence of title (passbook, note, certificate, etc.) and, since they cannot both have manual possession at the same time, possession by one is possession for the benefit of both.”

Defendant argues that the guidelines set forth in In re Estate of Schneider, 6 Ill2d 180, 127 NE2d 445 (1955), apply here. There it is said (p 187) :

“ . . [T] hat the facts and circumstances surrounding the transaction, and the happenings pertaining to such transaction thereafter, may be inquired into for the purpose of aiding the court in ascertaining the intentions of the parties.’
“To establish a gift, the proof must be clear and convincing, . . . and the burden is upon the alleged donee to establish the existence of a donative intent. . . . The decisions of this court relied on by appellant go no further than to indicate that the deposit agreement tends to show a donative intent on the part of the original owner of the funds, and that the intention so manifested, in the absence of contrary evidence, is sufficient to establish ownership in the survivor by virtue of the contract upon the death of the original owner. The form of the agreement, however, is not conclusive as to the intention of the depositors between themselves.” [Emphasis supplied.]

Defendant further asserts that in addition to the limiting terms of the assignment, which carried an “acceptance” of the “foregoing assignment,” signed by all three, Mrs. Gersten testified directly that she told her daughter, “This [assignment] has nothing to do with you during the lifetime of your father and myself,” to which Mrs. Rudolph replied, “Of course.” Defendant asserts that this testimony stands uncontradicted in the record.

Defendant’s authorities also include Scott on Trusts, Vol IV, 3d ed (1967), § 330, p 2595, where it is said:

“Where a trust is created inter vivos, the question often arises whether the settlor can revoke the trust. Where by the terms of the trust he has reserved a power of revocation, he can revoke the trust in the manner in which and to the extent to which he has reserved such a power.”

Also, at page 2597:

“The intention to reserve a power of revocation need not be manifested by an express provision to that effect; it can be indicated by the use of language from which it can be inferred.”

See, also, In re Estate of Petralia, 32 Ill2d 134, 204 NE2d 1 (1965), and Schwinn v. Northern Trust Co., 75 Ill App2d 88, 220 NE2d 867 (1966).

We conclude that it was the initial burden of plaintiff, by clear and convincing evidence, to show “a donative intent on the part of the original owners” of the land trust to give her a present irrevocable interest in the trust. Plaintiff did not meet this burden. The assignment expressly stated that “it is understood and agreed by the assignee, Barbara V. Rudolph, that the full power to direct the acts of the Trustee . . . shall be in Leo L. Gersten and Betty R. Gersten acting jointly, or in the survivor of them . . . .” Plaintiff’s testimony that the assignment did not mean what it said was not sufficient to show, “by clear and convincing evidence,” the required element of “donative intent,” to give Barbara a present irrevocable interest in the land trust. By retaining the exclusive power to direct all acts of the trustee to the exclusion of their daughter, the Gerstens retained the power to defeat plaintiff’s interest in the trust while either of them was alive, and they never parted with the “exclusive dominion and control” of the trust or the trust res. We hold the findings and decree of the trial court were supported by the manifest weight of the evidence, and the assignment “was intended as a testamentary disposition of property.”

Considered next are the provisions of the decree which dealt with the counterclaims of defendant against plaintiff, based on alleged loans and a stock certificate which Mrs. Gersten alleged was placed in the name of plaintiff as a convenience.

In 1958, Mr. and Mrs. Gersten acquired all (50) of the outstanding shares of common stock of the Lombard Heights Currency Exchange, Inc. The corporation issued certificate #2 for 25 shares to Leo L. Gersten and certificate #3 for 25 shares to Betty R. Gersten. The certificates bore the signature of Leo L. Gersten as president and Betty R. Gersten as secretary of the corporation.

On the reverse side of certificate #2 (Leo Gersten’s certificate), the assignment portion was completed in script, assigning the 25 shares to Barbara Rudolph under date of November 20, 1961, and had the signature of “Leo Gersten.” Mrs. Gersten, as counterclaimant, testified that the front side of this certificate was signed by her husband Leo on October 31, 1958, the date it bears. However, she stated that the assignment on the reverse side was not signed by her husband; she had signed her husband’s name on the reverse side of the certificate on December 30,1961, ten days after her husband’s death, on the advice of her family attorney, Leo Ferdinand, who had said “that the way to avoid probate court and to save on inheritance tax would be to predate this and sign this.” She testified that this conversation and signing occurred in the lawyer’s office in the presence of Barbara, and the assignment was not intended to be a gift.

Mrs. Gersten also testified that certificate #4 of the corporation, for the 25 shares purportedly issued to Barbara Rudolph on November 20, 1961, and related corporate documents apparently signed by her husband on the same date, were not signed on November 20, 1961, but were prepared on December 30, 1961, by the family attorney in his office and in the presence of Barbara Rudolph and signed on that date at the attorney’s direction.

Mrs. Gersten further testified that she and her husband, Leo, were in Rochester, Minnesota, where he was hospitalized from November 14, 1961, through November 23,1961, and she produced a paid hotel bill which covered that period.

Barbara Rudolph testified that stock certificate #4 was given to her in December or the end of November and represented 25 shares that belonged to her father. She said, “I don’t think I saw certificate No. 2 [her father’s certificate], and I have no knowledge as to whether it was ever cancelled, transferred or signed or anything. I’ve not received any income statement from the corporation since 1961. I’ve not received any notices of any shareholders’ meeting, and I’ve not signed any corporate minutes to my knowledge. I’ve not signed a Federal income tax return, nor have I received any dividends. ... I did not give any money or property for this particular certificate. I believe that my mother, Mrs. Gersten, Mr. Ferdinand and I were present when this certificate was signed. I don’t think that this certificate was signed after my father’s death. I am sure it was signed approximately November 20, 1961. I am sure it was signed before he died in Mr. Ferdinand’s office .... My father said to me that he wanted me to have his 25 shares. I can’t tell you the exact date he said that.”

As to the stock certificate transaction, the decree found:

s. That there was a conflict in the testimony as to the date of the execution of the stock certificate. . . . The defendant denied that her husband signed the stock certificate but testified that her husband’s name was affixed to it after his death. The defendant offered a signature of her husband for comparison purposes. The plaintiff did not offer a signature of her father for comparison and plaintiff did not deny the signature offered in evidence by the defendant of her husband for the purposes of comparison. Accordingly, the signature offered by the defendant as the signature of the husband must be taken as true and valid. In comparing the signature of the husband on the document containing the admittedly true signature with the signature on the stock certificate, the Court finds that they are different and said signatures are not one and the same signatures. That there was additional corroborative and undisputed evidence offered by the defendant in the exhibit of the paid hotel bill covering the period from November 14, 1961 to November 24,1961 for the late deceased husband and the defendant while they were both in Rochester, Minnesota .... In view of the fact that the signature on the stock certificate was not that of the husband, the said stock certificate is a complete nullity and created no interest in the daughter by virtue of its alleged issuance.

Plaintiff asserts that the evidence affirming ownership of the stock certificate in her is overwhelming; she had possession of the stock certificate and was the registered owner of the stock on the books of the corporation, all of which amounted to a prima facie presumption of ownership in the possessor and registered owner of the shares. She states the federal tax returns reflected her as a 50% owner; the testimony of the independent certified public accountant who prepared all the financial reports from the books, records and information supplied him by the defendant indicated that plaintiff was the owner of the stock; and the minutes of a corporate meeting, which were signed by defendant, recited that ownership of 25 shares of the corporate stock was in the plaintiff. Plaintiff contends this evidence alone was sufficient to prove the proof of ownership.

Plaintiff also contends that “there is a prima facie presumption of ownership when the person who is the possessor of a stock certificate also appears as the registered owner on the corporate books.” Plaintiff’s citations include Gillett v. Chicago Title & Trust Co., 230 Ill 373, 82 NE 891 (1907), and Head v. Wood, 20 Ill App2d 97, 155 NE2d 348 (1959). Plaintiff argues that the only evidence offered in rebuttal of this presumption was the testimony of defendant, Betty Gersten, that she attempted to commit a fraud in avoiding probate and taxes by assigning the certificate after her husband’s death.

Plaintiff also maintains that “the doctrine of estoppel by deed” applies here. Plaintiff states this principle was extended to mortages, bonds and escrow agreements in Gould v. Klabunde, 326 Ill App 643, 63 NE2d 258 (1945), where it is said (p 649):

“Obligor and sureties on the bond are estopped in a suit on the bond, to set up a defense which would contradict the recitals or implications of the bond. . . . They cannot be heard to say it is a nullity. They obtained all the benefits of the bond.”

Plaintiff further maintains that “the ‘clean hands doctrine’ of equity bars the defendant from claiming ownership of the stock in question,” and “equity will not relieve one party against another when both are in pari delicto.” Plaintiff argues that “if it is true that the stock certificates were prepared to defraud the state of its taxes and avoid probate, then the Defendant comes into court with unclean hands,” and “the rules of equity would require the court to leave the parties as they were.”

Defendant-counterclaimant contends that since she was not a party to the transfer of her husband’s stock certificate, no estoppel may be asserted against her. Defendant argues that Mr. Gersten was the sole owner of the certificate and he, not Mrs. Gersten, was the purported grantor, and the issue here concerns the validity of the attempted transfer. Estoppel by deed precludes the grantor only from denying the nature of his interest in the estate conveyed, and if Mrs. Gersten was bound by an estoppel, she would be prevented from denying only what she has never denied — that her husband owned the 25 shares of stock. Defendant asserts the applicable rule here was stated in Thornton v. Louch, 297 Ill 204, 130 NE 467 (1921), where the court said (p 212):

“Whatever the form or nature of the conveyance, if the grantor recites on the face of the instrument, either by express terms or necessary implication, that he is seized or possessed of a particular estate which the deed purports to convey, the grantor and all persons in privity with him are estopped from afterwards denying it.”

Defendant-counterclaimant contends that the “unclean hands” doctrine does not apply here, since Mrs. Gersten’s alleged wrong was not directed towards Mrs. Rudolph. Defendant argues that “while Mrs. Gersten may have committed a wrong as far as the State of Elinois or some other public body is concerned with regard to the execution of her husband’s stock certificates after his death, that conduct in no way harmed Mrs. Rudolph who did not rely on that conduct to her detriment and did not contribute any consideration for the stock.” Authorities cited include 7 ILP, Chancery, § 96, where it is said (p 319):

“The maxim that he who comes into equity must come with clean hands generally does not apply unless the inequitable conduct of the party seeking equitable relief has been directed toward the opposite party. The misconduct must in some measure affect the equitable relationship subsisting between the parties and arising out of the transaction.”

Defendant-counterclaimant argues that her testimony regarding the authenticity of the signatures on Mr. Gersten’s stock certificate and when they were placed there stands uncontradicted in the record, and “the chancellor chose simply not to accept Mrs. Rudolph’s version of the occurrence, and, as was his province, believed Mrs. Gersten’s proof which he justifiably concluded rebutted any presumption which may have initially existed in Mrs.

Rudolph’s favor.” Defendant further submits that the chancellor’s findings on the stock certificates were not against the manifest weight of the evidence and should not be reversed. Defendant cites Head v. Wood, 20 Ill App2d 97,155 NE2d 348 where the court said (p 107):

“The chancellor in this case evidently believed the witnesses for the appellees and so found. A court of review will not disturb the findings of fact made by the chancellor, under such circumstances, unless they are clearly against the manifest weight of the testimony.”

As to the stock transaction, we agree with defendant-counterclaimant (1) that the chancellor’s findings are not against the manifest weight of the evidence or that an opposite view is clearly apparent; (2) that no estoppel may be asserted against her in the transfer of her husband’s stock certificate. She was not a grantor nor was she the owner of the stock certificate. The issue here was the validity of the transfer of the 25 shares from Mr. Gersten to plaintiff. It is not contended that Mrs. Gersten had any authority to sign her husband’s name to the certificate. Therefore, the assignment of it to Barbara was a nullity, and the issuance of a stock certificate to Barbara for the same shares was improper and also a nullity; and (3) the “unclean hands” doctrine does not apply here, since the alleged wrong was not directed toward plaintiff, Mrs. Rudolph. The alleged fraud was directed toward the avoidance of inheritance taxes, and no wrong was intended toward plaintiff.

Finally, we note that the judgment against plaintiff for $8,010.71 was based on two promissory notes executed by plaintiff in consideration of loans made to her by the defendant, Mrs. Gersten. The court found “by plaintiff’s, Barbara V. Gersten Rudolph’s, own admission in open Court,” there was a total balance due of $7,000, plus interest of $1,010.71, on two notes executed by plaintiff on August 1, 1963, in consideration of loans made to her by the defendant, Betty R Gersten. As plaintiff’s brief does not argue this portion of her appeal, we consider this part of her appeal has been waived.

In conclusion, we find that the chancellor’s decree is supported by both the facts and the law, and it is hereby affirmed.

Affirmed.

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


author: MR. JUSTICE DAVIS

text:
    Roy J. Smiley and Patricia Emanuel, Administrator of the Estate of Byron E. Emanuel, Deceased, Plaintiffs-Appellants, v. Estate of Charles Toney, Deceased, and Country Mutual Insurance Company, DefendantsAppellees.
    Gen. No. 68-24.
    Second District.
    October 15, 1968.

      Reese, Schlueter & Ecklund, of Rockford, for appellants.

      Maynard, Maynard & Brassfield, of Rockford, for appellees.
   MR. JUSTICE DAVIS

delivered the opinion of the court.

The question presented by this appeal is whether the insurance policy issued to Byron E. Emanuel by the defendant, Country Mutual Insurance Company (Country Mutual), provided uninsured vehicle coverage under which the plaintiffs may recover even though the alleged tort-feasor, Charles Toney, (now deceased), carried a valid policy of liability insurance within the meaning of the Illinois Financial Responsibility Law (Ill Rev Stats 1967, c 951/2, pars 7-101 to 7-503 inch).

The plaintiffs filed a three-count complaint against the defendants. In Count I, the plaintiff, Roy J. Smiley, sought to recover damages against the defendant, Robert C. Bourland, Jr., as administrator of the estate of Charles Toney, deceased, in the sum of $50,000; in Count II, the plaintiff, Patricia Emanuel, as administrator of the estate of Byron E. Emanuel, deceased, sought to recover damages in the same amount against the same defendant; in Count III, the plaintiffs sought a declaratory judgment, asked that the court construe the uninsured motorist clause of the insurance policy issued to Emanuel by Country Mutual, and declare that thereunder Country Mutual is liable to the plaintiffs for any judgment which either of them may recover against Robert C. Bourland, Jr., as administrator of the estate of Charles Toney, deceased, in excess of the policy limits of the insurance carried by said Toney.

The trial court dismissed Count III of the plaintiffs’ complaint on motion of the defendant, Country Mutual, and the plaintiffs appealed.

Byron E. Emanuel, now deceased, and Roy J. Smiley, were involved in an automobile accident with Toney, who carried liability insurance with Manchester Insurance Company with liability limits in the amount of $10,000 for each person and $20,000 for each accident. Emanuel carried liability insurance with Country Mutual, and the uninsured vehicle coverage thereunder was in the sum of $50,000 for each person and $100,000 for each accident.

The complaint alleged that Emanuel was driving his 1963 Ford and Smiley was a passenger therein at the time and place of the accident in question; that Toney then and there negligently drove his car over the center line of the highway and struck Smiley’s car head-on; that Toney’s negligent conduct was the proximate cause of the injuries arising out of such accident.

The uninsured vehicle clause of the Country Mutual policy provided:

“Section II — PROTECTION AGAINST BODILY INJURY BY UNINSURED VEHICLES.
“Coverage U — Damages for Bodily Injury Caused by Uninsured Vehicles.
“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 Vehicle because of bodily injury, 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 Vehicle; 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 and the Insured or the Company so demands, by arbitration.”

Under the same section, the Contract of Insurance also contains the following:

“DEFINITIONS: With Respect to this Section: “UNINSURED VEHICLE MEANS:
“(1) a vehicle with respect to the ownership, maintenance or use of which there is no bodily injury liability bond or bodily injury liability insurance policy applicable at the time of the accident with respect to any person or organization legally responsible for the use of such vehicle.” (Emphasis ours.)

The plaintiffs contend that Toney was uninsured to a substantial part of the damages which they incurred, and that Country Mutual’s uninsured vehicle clause should be construed to afford them coverage for the excess of any judgment which they may recover over and above the limits of Toney’s insurance coverage.

They also assert that this uninsured vehicle coverage extends to damages in excess of the amount of “valid and collectible” insurance carried by Toney, under the underlined portion of the provisions of Country Mutual’s other insurance clause, which reads:

“. . . With respect to bodily injury to an Insured while occupying or through being struck by an Uninsured Vehicle, if such Insured is a Named Insured under other similar insurance available to him, then the damages shall be deemed not to exceed the higher of the applicable limits of liability of this insurance and such other insurance, and the Company shall not be liable, under this Section for a greater proportion of the applicable Limit of Liability of this Section than such limit bears to the sum of the applicable limits of liability of this insurance and such other insurance. Subject to the foregoing paragraphs, if the Insured has other similar insurance available to him against a loss covered by this Section, the Company shall not be liable under this section for a greater proportion of such loss than the applicable limit of liability hereunder bears to the total applicable limits of liability of all valid and collectible insurance against such loss”

The plaintiffs also contend that section 143a of the Insurance Code (Ill Rev Stats 1967, c 73, par 755a) has application in the case at bar; that the term “uninsured motorist” as used in the statute and in the policy of Country Mutual, means one who is not insured in the amount of the total financial responsibility of the tortfeasor (Toney) to the injured parties. Specifically, they contend that in event the damages of either plaintiff exceed $10,000, then the uninsured motorist provisions of Country Mutual’s policy would become available to each plaintiff respectively, up to $25,000. The plaintiffs concede that there is no precedent in Illinois for applying the term “uninsured motorist” to a tort-feasor who does have automobile liability insurance in the amounts required by the Illinois Financial Responsibility Law.

In addition to the absence of Illinois authority to support their contention, the plaintiffs face another impediment to its acceptance; namely, the statute in question was enacted after the effective date of the policy in question and after the date of the accident. It is settled law that all contracts are presumed to have been executed in the light of existing law. Schiro v. W. E. Gould & Co., 18 Ill2d 538, 544, 165 NE2d 286 (1960); Jinnette v. Guest, 35 Ill App2d 434, 440, 183 JSTE2d 194 (1962). Thus, the construction of Country Mutual’s policy must be made in the light of section 143a as it existed in 1963 — prior to the 1967 Amendatory Act.

The Country Mutual policy defined uninsured vehicles in the language heretofore set forth. Under the policy definition, if Toney was operating an insured vehicle at the time of the collision in question, then under the plain terms of the policy, there was no liability on the part of Country Mutual, unless section 143a of the Insurance Code of 1963 would compel a different construction of the uninsured vehicle clause.

We have examined section 143a of the Code of 1963 and find nothing in its language which would require the construction urged by the plaintiffs. In addition, clause (4) of the Amendatory Act provides:

“This amendatory Act of 1967 shall not he construed to terminate or reduce any insurance coverage or any right of any party under this Act in effect prior to the effective date of this amendatory Act of 1967.” (Emphasis ours.)

This clause renders it clear that the legislature intended that the 1963 Act would be applicable under circumstances such as those in the case at bar.

Section 143a was enacted in 1963, and provided generally that no automobile liability policy shall be delivered or issued in this state with respect to any motor vehicle registered therein unless the policy contained coverage for uninsured and hit-and-run motor vehicles; provided, that any insured may elect in writing not to carry such coverage. This section, as adopted in 1963, did not define the term “uninsured motor vehicle.”

In addition (and although not applicable) clause (2) of the 1967 Amendatory Act, partially defined the term “uninsured motor vehicle” as follows:

“For the purpose of this coverage the term ‘uninsured motor vehicle’ includes, subject to the terms and conditions of such coverage, a motor vehicle where on, prior to or after the accident date the liability insurer thereof is unable to make payment with respect to the legal liability of its insured within the limits specified in the policy because of the entry by a court of competent jurisdiction of an order of rehabilitation or liquidation by reason of insolvency on or after the accident date. An insurer’s extension of coverage, as provided in this subparagraph, shall be applicable to all accidents occurring after the effective date of this Act during a policy period in which its insured’s uninsured motor vehicle coverage is in effect. Nothing in this Section may be construed to prevent any insurer from extending coverage under terms and conditions more favorable to its insureds than is required hereunder.”

This definition extended uninsured motorist protection to the insolvent insurance company situation, but it did not otherwise specifically extend coverage or define the term “uninsured motor vehicle.” See: Dreher v. Aetna Casualty & Surety Co., 83 Ill App2d 141, 143, 226 NE2d 287 (1967). Thus, it is apparent that the legislature did not intend to extend the uninsured motor vehicle coverage beyond the extent specified in the foregoing clause of the Amendatory Act.

Accordingly, we must continue to look to the insurance policy for the full meaning of the term “uninsured vehicle.” We recognize that an insurance policy should be liberally construed, but this canon of construction does not authorize a distortion of language or the exercise of inventive powers for the creation of an ambiguity where none exists. Dreher v. Aetna Casualty & Surety Co., supra, 144; McCann for Use of Osterman v. Continental Cas. Co., 6 Ill App2d 527, 533, 128 NE2d 624 (1955).

Parties to an insurance contract may incorporate such lawful provisions therein as they choose, and courts should construe and enforce the contract as made. Courts should not, under the cloak of construction, make a new contract for the parties. Pioneer Life Ins. Co. v. Alliance Life Ins. Co., 374 Ill 576, 590, 30 NE2d 66 (1940); Nationwide Ins. Co. v. Ervin, 87 Ill App2d 432, 435, 436, 231 NE2d 112 (1967).

In the light of the policy definition of “uninsured vehicle” — as one where “there is no bodily injury liability bond or bodily injury liability insurance policy applicable at the time of the accident” — we find the policy to be plain, concise and unambiguous. It requires no construction. Insurance contracts, like other contracts, are to be construed according to the sense and meaning of the terms which the parties have employed, and if they are free from ambiguity, their terms are to be understood in their plain, ordinary and popular sense. Dempsey v. National Life & Accident Ins. Co., 404 Ill 423, 426, 88 NE2d 874 (1949) ; Pioneer Ins. Co. v. Alliance Ins. Co., supra, 586; Nationwide Ins. Co. v. Ervin, supra, 435, 436.

The plaintiffs also base their claim for relief on the underlined portion of the “Other Insurance” clause heretofore set forth, which is a part of Section II of the Country Mutual policy, which section is entitled, “Protection Against Bodily Injury by Uninsured Vehicles.”

Their contention seems to be that this clause, which refers to “other insurance,” is applicable when the tortfeasor, with whom the insured has an automobile accident, carries liability insurance. The pertinent portion of the clause makes specific reference to other insurance protecting an insured, in case of bodily injury while occupying or being struck by an uninsured vehicle, if such insured is a named insured under other similar insurance available to him. It is obvious, on its face, that this clause is not applicable to a situation where the alleged tort-feasor carries liability protection.

The plaintiffs have cited a number of decisions of Illinois courts and other jurisdictions, including those hereafter mentioned, which they contend are in support of their rationale in the case at bar.

Deterding v. State Farm Mut. Automobile Ins. Co., 78 Ill App2d 29, 222 NE2d 523 (1966) was a declaratory judgment suit wherein the plaintiff asked the court to declare that the defendant’s automobile liability policies issued to plaintiff’s intestate upon an auto not involved in the accident, was applicable to an accident caused by an uninsured motorist. The defendant there contended that the uninsured motorist statute afforded protection to the plaintiff only up to the minimum statutory limits of $10,000 for bodily injury caused by uninsured motorists. The court held that the Illinois uninsured motorist statute does not prevent motorists from obtaining or companies from issuing, uninsured motorists protection in excess of the minimum requirements of the statute. In Deterding there was an uninsured motorist; in the case at bar, Toney was an insured operator who carried liability insurance within the minimum limits prescribed by the Financial Responsibility Law.

In Taylor v. Preferred Risk Mut. Ins. Co., 225 Cal App2d 80, 37 Cal Rptr 63 (1964), the defendant company issued a liability policy to the plaintiff’s husband with limits of $10,000 for an injury to one person. The plaintiff had a collision with a Texas car on a California highway, and this car was insured only to the extent of $5,000 for bodily injury to one person. The plaintiff filed a declaratory judgment asking the court to declare the uninsured motorist coverage of her husband’s policy to be applicable. Such judgment was entered and the defendant appealed. The California statute in effect required coverage limits of at least $10,000 for injury to one person, but defined an “uninsured motor vehicle” as one to which there is no bodily injury liability insurance applicable at the time of the accident. The reviewing court found the provisions in conflict, and construed them to define “an uninsured motor vehicle” as one carrying insurance in limits less than the requirements of the Financial Responsibility Law. The judgment of the trial court was affirmed.

Of all the cases cited by the plaintiffs in the case at bar, Taylor offers the strongest support for their contentions, but even it falls short of the construction urged by the plaintiffs.

In Travelers Indemnity Co. v. Wells, 209 F Supp 784 (1962), John Stahl, the alleged tort-feasor, was uninsured; and in Mangus v. Doe, 203 Va 518, 125 SE2d 166 (1962), the appeals court held that the Virginia Code, which provided that a motor vehicle shall be deemed to be uninsured if the owner or operator thereof is unknown, is a part of every insurance contract; that the driver of the car which struck the Mangus car was unknown even though Mangus and said driver, at the time of the collision, got out of their cars to determine the nature and extent of the damage, if any, and talked with each other, but failed to take each others’ name and address, in that neither party thought they were injured and no property was damaged; and that the insurer of Mangus was liable under such uninsured motor vehicle clause.

Other cases cited by the plaintiffs are also wide of the construction of the pertinent statute and the uninsured vehicle clause of the Country Mutual policy as espoused to this court by the plaintiffs. Under the particular facts of many of the cases cited by the plaintiffs, the familiar rule, that insurance policies should be liberally construed in favor of the insured and strictly against the insurer, is asserted. However, the cited cases do not support the plaintiffs’ contention in the case at bar. While the rule is one well established in the law, it does not authorize us to disregard the plain, concise and unambiguous definition of “an uninsured vehicle” as set forth in Country Mutual’s policy.

Before the uninsured vehicle provisions of the policy could become operative, the plaintiffs must prove that the tort-feasor (Toney) was in fact an uninsured motorist. Such was not the circumstance in fact, or under the provisions of the uninsured vehicle clause of the Country Mutual policy — which is unambiguous.

Consequently, the judgment of the Circuit Court is affirmed.

Judgment affirmed.

ABRAHAMSON, P. J. and SEIDENFELD, J., concur.


author: MR. JUSTICE LYONS

text:
    People of the State of Illinois, Plaintiff-Appellee, v. James R. Walker, Defendant-Appellant.
    Gen. No. 51,154.
    First District, Second Division.
    October 15, 1968.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Carolyn Jaffe 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 Richard A. Rinella, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE LYONS

delivered the opinion of the court.

Defendant, James Walker, was convicted in a bench trial upon Count I of a two-count indictment charging him with the offense of armed robbery. He was thereafter sentenced to a term of from not less than two (2) nor more than ten (10) years in the State Penitentiary. Defendant appeals asserting as alternative contentions on review (1) that he was not brought to trial within 120 days of incarceration as required by statute, and (2) that the evidence failed to establish his guilt beyond a reasonable doubt.

With regard to the first of his theories on appeal, defendant alleges that he was arrested and taken into custody on August 12, 1965. There is no dispute but that defendant remained in custody because of an inability to meet bail. There appears, however, some indication in the Report of Proceedings that the arrest may not have been made until August 20,1965. The common-law record is silent in this respect. On September 15, 1965, an indictment was returned against defendant charging him in two counts with the armed robberies of Ernestine Hunter (Count I) and one Willie Franklin (Count II). The offenses were alleged to have occurred on June 25, 1965.

Defendant was subsequently arraigned on the charges on September 22, 1965. The court at that time appointed an Assistant Public Defender through whom he entered respective pleas of not guilty. The case was thereupon assigned to Judge Alphonse Wells for trial. The very next day, before a trial date had been designated, defendant, by counsel, filed a written motion for a substitution of judges naming another judge in addition to Judge Wells. Judge Wells sustained the motion and promptly transferred the cause to the Chief Judge of the Criminal Division. The case was then reassigned that same day to the eventual trial judge, Judge Walter P. Dahl.

On November 4, 1965, the instant case reached the trial call. Defendant appeared and answered ready for trial, however, requesting of the State to waive formal notice of motion with respect to a motion for a Bill of Particulars he apparently intended to make. Defendant, in addition, made a motion for a reduction in his bond. The State similarly answered ready, but explained that it was appearing without witnesses because of its understanding that the court would be otherwise occupied that day. The court thereupon entered an order reducing bond to $5,000 and, on its own motion, continued trial of the case until November 8,1965, without objection.

On November 8th, the case was continued until December 9, 1965, for reasons that do not appear of record. The order was entered on the court’s own motion without objection. On December 9th the cause was reconvened. Defendant again answered ready for trial, at the same time informing the court of his nonreceipt of a list of prospective witnesses or parties to oral or written statements from the State. The State again explained that it had not brought in its witnesses on the understanding that the court would be engaged in another proceeding. On the court’s own motion, the State was ordered to furnish defendant with a list of witnesses within 15 days, the cause being continued accordingly by the court until January 3,1966, without objection.

On January 3rd, defendant filed a written and verified pro se motion for discharge and dismissal of the indictment pursuant to section 748 of the Criminal Code. The motion alleged in substance that, notwithstanding the accused’s continued readiness to stand trial, more than four months (120 days) had elapsed since defendant had been first placed in custody. While acknowledging his successful motion for a substitution of judges, defendant averred that neither such motion nor any other conduct on his part caused or contributed to the delay in the proceedings.

Defendant’s motion was taken under consideration by the trial judge and denied without hearing argument. The case was thereafter continued until January 12, 1966, because of the unavailability of certain State’s witnesses due to illness. The trial commenced on January 12th. At no juncture in the proceedings below did the State make a formal or informal application to the court for an additional 60 days to procure material evidence as was open to them by the controlling statute. Ill Rev Stats (1965) c 38, par 103-5 (c) (e).

A consideration of these attending circumstances impels this court to conclude that defendant, by his actions, substantially contributed to the delay for which he now complains. The statute upon which his case is predicated states:

“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.” (Ill Rev Stats (1965) c 38, par 103-5 (a)).

We think it implicit in the phraseology of this statute that, as a matter of reciprocal obligation, an accused seeking its guarantee must himself be held to some measure of restraint in exercising certain of the pretrial tactical motions available to him. We speak in more specific terms of defendant’s motion for a substitution of judges, albeit made at the earliest opportunity, and its adverse effect upon the orderly administrative process necessarily a part of bringing his cause to trial. The issue essentially invokes a balancing concept underscored by a long recognized element of practical consideration for the expeditious handling of such matters. People v. Iasello, 410 Ill 252, 102 NE2d 138 (1951). From within this framework, we regard the precedent of People v. Iasello, supra, and People v. Rankins, 18 Ill2d 260,163 NE2d-814 (1960), to be of particular importance.

In Iasello, motions were made by the accused for a separate trial from his coindictees and for a change of venue. Contrary to the erroneous distinction defendant attempts to draw from the authority of People v. Hatchett, 82 Ill App2d 40, 226 NE2d 97 (1967), Iasello involved a change of venue in name only. There, as here, the motion for a change of venue was granted and implemented by a simple substitution of judges from within the same judicial circuit. Again as here, the necessary transfer to the chief judge and reassignment of the cause was effectuated by the court on the same day.

To the extent that the Iasello decision is depreciated in value, we recognize that there both of the accused’s motions had been made well after his cause had been placed on call for trial, but apparently before an actual trial date had been set. The court in Iasello employed the following reasoning in which we concur:

“. . . In the present case plaintiff in error successfully presented motions for a separate trial and for a change of venue, both of which occurred at a time when the cause was on call for trial, and both of which necessitated its return to the chief justice of the criminal court for reassignment to another judge. Although each motion was followed with a demand for trial at the term of court then in progress, such a demand does not obviate the fact that delay necessarily resulted from each motion. Plaintiff in error thus created the necessity for postponement of his trial to an extent which precludes him from availing himself of the statute upon which he relies.” (Emphasis supplied.)

Quite similarly in People v. Rankins, 18 Ill2d 260, 163 NE2d 814 (1960), our Supreme Court treated motions for a change of venue and for a substitution of judges as being synonymous, and again construed the granting of the motion as causing a delay chargeable to the accused. The court there stated:

“. . . We have repeatedly held that where a defendant has sought and obtained a continuance within the period in question [citations omitted], or when he asks for and receives a change of venue (People v. Iasello, 410 Ill 252,) or by his own action he has otherwise caused the delay, the right to be tried within the four-months period is temporarily suspended [citations omitted], and the statute does not apply until a new four-months’ period has elapsed, (citations omitted).”

Accord: People v. DeStefano, 85 Ill App2d 274, 229 NE2d 325 (1967); People v. Williams, 31 Ill App2d 230, 175 NE2d 576 (1961).

The determinative criterion in each case must be whether the defendant’s actions, in fact, caused or contributed to the delay. People v. Fosdick, 36 Ill2d 524, 224 NE2d 242 (1967). Accordingly, we cannot consider defendant’s cited authority of People v. Shaw, 24 Ill2d 219, 181 NE2d 120 (1962), involving an accused’s pretrial request for a psychiatric examination, as so much as remotely applicable.

Defendant’s case of People v. Hatchett, 82 Ill App2d 40, 226 NE2d 97 (1967), is similarly of little contrary persuasion. The factual setting there was quite complex. Suffice to say that the case essentially involved the State’s attempt to indict the accused twice for the same offense. Only after the original indictment (No. 578) had been dismissed by the court on motion of the State recognizing the delay, did the question of the 120-day rule in regard to trial under the latter indictments (Nos. 95 and 97) arise. As it related to the court’s dismissal of the second indictments, the State appealed contending that the accused’s motion for a substitution of judges (as to trial under indictments Nos. 95 and 97), filed when all the indictments were still pending, tolled the running of the 120-day statute.

Quite obviously, the pivotal but inarticulated basis for the Hatchett decision was upon a theory of double jeopardy and not upon the accused’s right to a speedy trial as defendant suggests. Of further interest is the fact that the actual substitution of judges in Hatchett was effectuated without the transfer and reassignment of the causes prevalent in the case at bar.

It is the court’s opinion that defendant’s motion to substitute judges of necessity caused certain disruption and some delay although that delay be administrative in nature and unascertainable in duration from the state of the record. We furthermore envision no repugnancy with our statutory provisions allowing for the substitution of judges (Ill Rev Stats (1965) c 38, par 114-5), a fortiori, such a substitution is compulsory upon the court if made, as here, within 10 days after the cause has been placed on the trial call of a judge. People v. Lagardo, 82 Ill App2d 119, 226 NE2d 492 (1967). We find the record moreover to bespeak of a continuing acquiescence on the part of defendant to the various continuances ordered on the court’s own motion notwithstanding the contrary averments of his motion for discharge and dismissal of the indictment. We therefore feel that the lower court properly denied that motion.

Next we consider defendant’s alternative contention challenging the sufficiency of the evidence. As against his alibi defense, defendant brings his theory to focus upon two primary elements of the State’s case; to wit, (a) the susceptibility of the human sense of visual perception and recall to honest but mistaken belief, and (b) the absence in the instant case of corroborative circumstances to otherwise support the eyewitness identifications. Having reviewed the facts of the case however, we find defendant’s argument hypothetically sound but substantially unsupported by the evidence.

The complainant, Ernestine Hunter, had arrived at her home at 6529 South Bishop, Chicago, on the evening of June 25, 1965, carrying a substantial amount of cash in her handbag. The money represented the receipts from her personally owned beauty parlor which was located approximately three blocks from defendant’s residence. At about 11:30 p. m., the complainant was in her bedroom with a friend, Willie Franklin. Also present in the house, in the kitchen, were her children, Celest, Sandra, Beverly and Mark, as well as one of her daughter’s friends, Rosetta.

Sandra, a high school senior, testified that she had observed an intruder making his entry into the house through the kitchen door. He was carrying a revolver which frightened some of the children and caused them to scream. The intruder threatened the children to remain silent and then headed for her mother’s bedroom. After having had occasion to observe the man face to face for possibly five to ten seconds, Sandra fled out the rear door to summon the police.

Aroused by the children’s outcries, Willie Franklin opened the bedroom door and was immediately confronted at gunpoint by the offender. The children were summoned into the room and all were ordered to lay face down on the bed. Mrs. Hunter, however, stated that she had remained faceup upon the bed. The assailant rifled the closet and discovered approximately $500 in the complainant’s handbag. He seized the bag and took flight, being pursued by Mr. Franklin and Mrs. Hunter. The man had allegedly remained in the lighted bedroom for about five minutes and was, at times, as close as two feet away from the complainant.

Returning from calling the police, Sandra observed the offender run past an automobile parked near her home. The keys were in its ignition and the motor was running. Subsequent police investigation revealed that the car was a 1953 Buick sedan bearing 1965 Blinois license plate No. NP6237 which number was registered to defendant for a 1956 Pontiac automobile. At trial, by means of testimony and documentary evidence, defendant purported to show that he had sold the Buick to one Carl Whitmore earlier on the date in question and had permitted Whitmore to retain his license plates solely for the purpose of transporting the car to the former’s home.

The doubt defendant attempts to raise from this evidence we, however, value as superfluous. The alleged contract for the purchase of the vehicle (Defendant’s Exhibit No. 1) was admittedly drafted by defendant and was particularly self-serving to him. Nothing appears to affirmatively establish, moreover, that possession of the Buick had been relinquished to Whitmore, nor was he produced to testify as a witness in defendant’s behalf. Whitmore, furthermore, was described by defendant himself as being considerably taller than he, and at least 20 years his junior.

Within five minutes after the robbery, Police Officer Fox responding to a call, arrived at the scene. Both Mrs. Hunter and her daughter, Sandra, gave a description of the offender to the officer. Mrs. Hunter testified that she had described the man as being about 5' 9" tall and 145 lbs. In addition to his complexion, clothing and grade of hair, the complainant had observed that the offender wore a big mustache and had a scar around one of his eyes. Sandra testified that she had similarly described the mustache and scar to the police, stating further that the man was slightly taller than she (5' 6") and thin.

Shortly after their conversation with Officer Fox, Mrs. Hunter was taken to the hospital in a hysterical condition. She was administered to, presumably by the injection of a sedative, and returned home. At approximately 5:00 a. m. the following morning, Police Detective Niemiec arrived at the Hunter residence with four or five photographs to show the witnesses. Both the complainant and her daughter identified defendant as the offender from among the pictures exhibited to them. The two witnesses subsequently made identifications of the accused at the preliminary hearing following his arrest and again at trial.

We think these circumstances, in and of themselves, demonstrate an instance of credible and unmistaken eyewitness identification. There is no dispute but that defendant answered to the physical descriptions given at the scene within minutes of the robbery. By his own testimonial admissions, defendant was, in fact, wearing a mustache (although thinner than described) on the date of the occurrence and resided in close proximity to the complainant’s business establishment. The eyewitnesses themselves remained unshaken in the belief that defendant was the man they had observed. The link between defendant and the car observed in the vicinity of the Hunter residence, moreover, cannot be lightly dismissed from consideration. Where, as here, there are eyewitnesses of a credible character who observed the accused under physical circumstances conducive to a positive identification, it has been repeatedly held that their testimony alone is sufficient to support a conviction even though contradicted by the accused. People v. Brinkley, 33 Ill2d 403, 211 NE2d 730 (1965).

In view of the foregoing, we need not dwell at length upon the strength or weakness of defendant’s alibi defense which had been submitted through the testimony of defendant, his wife, niece and two friends. While unimpeached in its more important aspects, the alibi testimony essentially involved a determination of the credibility of the respective witnesses at the trial level of the proceedings. As has been often stated in the review of bench trial convictions, the determination of the credibility and weight to be afforded testimony is for the trier of fact to alone resolve. Lest the State’s evidence be so unsatisfactory or unconvincing so as to raise a reasonable doubt of guilt, a reviewing court will not substitute its own judgment for that of the trial judge. It remains axiomatic that the trial court, having listened to and observed the witnesses before it, is in a particularly more suitable position to make those determinations. People v. Webb, 85 Ill App2d 417, 229 NE2d 300 (1967).

Lastly, defendant alludes to the authority of People v. Strong, 21 Ill2d 320, 172 NE2d 765 (1961) and People

V. DiVito, 66 Ill App2d 282, 214 NE2d 320 (1966), in support of the proposition that the State’s failure to call Willie Franklin as a witness or otherwise explain his absence gives rise to an inference that his testimony, if given, would have been unfavorable to the prosecution of the case. While we do not quarrel in principle with the rule, we do not deem the simple failure to produce this witness as sufficient, in view of the otherwise affirmative stature of the State’s case, to create a reasonable doubt as to defendant’s guilt.

We think that the trial court’s cognizance of this element is more than reflected in its granting of defendant’s motion for a directed finding of not guilty as to the charge in the indictment addressed to the alleged robbery of Mr. Franklin (Count II).

For the above reasons, the judgment is affirmed.

Affirmed.

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

       Section 748 of the Criminal Code however had since been superseded and replaced by section 103-5 of the Code of Criminal Procedure. Ill Rev Stats (1965) e 38, par 103-5.