text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Luther Harris, Jr., Defendant-Appellant.
    Gen. No. 69-174.
    Fifth District.
    August 28, 1970.

      Gerald B. Cohn, Pratt, Mosele, Cohn & Day, of East Alton, and John Gitchoff, of Granite City, for appellant.
    William J. Scott, Attorney General of State of Illinois, of Chicago, Thomas J. Immel and Robert E. Davison, Assistant Attorneys General, of Chicago (R. W. Griffith, State’s Attorney of Madison County, of Edwardsville, of counsel), for appellee.
   GOLDENHERSH, J.

Defendant, Luther Harris, Jr., was tried by jury in the Circuit Court of Madison County and convicted of the offense of Theft (c 38, § 16-1 (d) (2), Ill Rev Stats 1967). The court denied defendant’s post-trial motion, neither party offered testimony in aggravation and mitigation, and the defendant was placed on probation for three years, the initial six months to be served in the Illinois State Penal Farm at Vandalia.

As grounds for reversal defendant contends the court erred in admitting certain testimony of Sergeant Harold Ingram of the Wood River Police Department, and argues the testimony was hearsay, and therefore, inadmissible.

Over defendant’s objection, Sergeant Ingram testified he had been told by the F.B.I. that “they had information that Luther Harris, Jr. of our city had a stolen 1966 black over white Cadillac . . . and . . . the F.B.I. wanted to have Luther Harris picked up for violation of the Dyer Act.” The People argue the court did not err in its ruling.

Defendant did not contest the validity of the arrest and there was no motion to suppress evidence either prior to or during trial. The fact that an arrest is invalid does not affect the jurisdiction of the court. The People v. Bliss, 44 Ill2d 368, 255 NE2d 405. It appears, therefore, that the testimony was not material to any issue in the case, and its admission was error.

Having concluded the testimony was improperly admitted, it becomes necessary to determine whether the error was so prejudicial as to require reversal. The record shows conclusively that defendant had the automobile in his possession, that it had been stolen from an automobile dealer in Columbia, Missouri, and its appearance had been altered by the addition of a black vinyl top. Defendant testified he had purchased it from a Jack Wilson, whom he had initially met at an auto auction and who had no established place of business; he had paid Wilson $1,000 down and was to pay the balance in 18 monthly payments, but had made no payments because he could not find Wilson. Admittedly he had no certificate of title, and had put license plates on the vehicle which were issued for another car.

The record shows the court admonished the jury that the testimony to which defendant objected was admitted for the sole purpose of showing why the arrest was made, and was not to be considered as evidence of defendant’s guilt or innocence, but in our opinion this did not serve to obviate the prejudicial effect of the hearsay testimony.

The “Dyer Act” (18 USCA 2312) is widely known to laymen by its popular name as prohibiting the transportation of a stolen vehicle in interstate commerce. We question whether it is common knowledge in lay circles that an element of the offense is knowledge that the vehicle is stolen. In our opinion, the admission of the testimony that the F.B.I. wanted defendant picked up for violation of the Dyer Act, thus imputing to defendant the violation of a federal statute with which he is not charged, and under which specific knowledge is a requisite element, was so prejudicial as to require reversal of the judgment and remandment for a new trial.

In his brief, defendant has raised several issues which might possibly arise upon retrial.

Defendant argues that his trial counsel was incompetent, and as a result he was denied due process of law. Specifically, he complains of counsel’s failure to file a motion to suppress. The exhibits are not abstracted and are not contained in the record on appeal. The transcript of the proceedings at the trial shows that defendant identified and testified concerning The People’s Exhibits 1 and 2 in his direct examination. In our opinion the failure to move to suppress resulted not from counsel’s incompetence, but trial strategy and the record fails to reveal incompetence of counsel, People v. Washington, 41 Ill2d 16, 241 NE2d 425.

Defendant also contends his constitutional rights were violated because of an alleged failure by the police to give a Miranda warning prior to questioning him (Miranda v. State of Arizona, 384 US 436, 86 S Ct 1602). Defendant does not say how this prejudiced him, and, since he made no confession or other incriminating statement, Miranda is not applicable.

Defendant next contends prejudicial error was committed when the trial court refused to give his tendered Instruction No. 5 in the form of IPI, Criminal, 3.02, and including the paragraph which reads: “You should not find the defendant guilty unless the facts and circumstances proved exclude every reasonable theory of innocence.” The court gave, over defendant’s objection, The People’s Instruction No. 5 which contained only the first paragraph of IPI, Criminal, 3.02. The Committee Note following IPI, Criminal, 3.02, suggests the second paragraph be used only when the proof of guilt is entirely circumstantial, the record contains much evidence which is not circumstantial in nature, and the court did not err in its rulings on the instructions.

Defendant makes a number of contentions with respect to The People’s examination and cross-examination of witnesses, and the final argument of the prosecutor, arguing that they so exceeded the bounds of fairness as to deprive him of a fair trial. We have examined the record and do not discuss the contentions for the reason that the matters of which defendant complains are not likely to recur upon retrial.

For the foregoing reasons, the judgment of the Circuit Court of Madison County is reversed and the cause remanded for a hew trial.

Judgment reversed and cause remanded for a new trial.

MORAN and EBERSPACHER, JJ., concur.


source: Caselaw Access Project

author: MR. JUSTICE SEIDENFELD

license: Public Domain

text:
    In the Matter of the Annexation of Certain Territory to the Village of Buffalo Grove. Museum Development Corporation, et al., Petitioners-Appellants, v. Wheeling Trust and Savings Bank, et al., Objectors-Appellees.
    Gen. No. 69-213.
    Second District.
    August 28, 1970.

      Jack M. Siegel and James B. Soble, of Chicago, for appellants.
    John F. Grady, of Waukegan, for appellees.
   MR. JUSTICE SEIDENFELD

delivered the opinion of the court.

Petitioners appeal from a trial court judgment which dismissed their petition seeking to annex their property to the Village of Buffalo Grove. The court below found that there was a lack of contiguity under the applicable statute. (Ill Rev Stats 1967, c 24, §§ 7-1-2, 7-1-3, and 7-1-4.)

The territory sought to be annexed is characterized as “L” shaped.

The large rectangle represents petitioners’ land; the smaller rectangle measured ¡south tó the village limits cuts through a cultivated portion of the objectors’ 64 acre farm, with about one-third of the farm being to the west and two-thirds to the east. The owners of that portion of the adjacent property which, for a length of 675 feet and with a width of 300 feet, share a common boundary with the village, are not objecting.

The objections relied upon in the trial court were that the land annexed was not contiguous, and also that petitioners could not include only the small portion of the property owned by the objectors to make a connection. The trial court, in a memorandum opinion, found:

“that on the facts of this case, the Village and the land to be annexed do not 'adjoin one another in a reasonably substantial physical sense/ When a piece of land approximately 3.3 million square feet in area is sought to be annexed to a village and the only common border is a 675-foot strip, the requisite substantiality of physical contact cannot be said to exist, in our opinion.”

Petitioners have argued that the territory sought to be annexed clearly touches or adjoins the village in a reasonably substantial physical sense, and that no more is required in compliance with the statutes.

Objectors argue that the finding of the trial court of the lack of physical contiguity must be sustained because it is not against the manifest weight of the evidence; and additionally, objectors argue that a proper analysis of the annexation statute considering its purpose, and an analysis of the cases which have interpreted it, require that there be a unity of purpose and facilities as well as a physical contact to comprise “contiguity.”

Certain general principles have been settled by the cases which have defined the term “contiguity” as used in the statute. “Contiguity” is satisfied by a touching or adjoining in a reasonably substantial physical sense; however, the line of demarcation between the reasonableness or unreasonableness of a contiguity must be drawn on the facts of each case. Western Nat. Bank of Cicero v. Village of Kildeer, 19 Ill2d 342, 352, 167 NE2d 169 (1960). The finding of the trial court as to contiguity or lack of it will not be disturbed on appeal unless it is manifestly against the weight of the evidence. LaSalle Nat. Bank v. Village of Burr Ridge, 81 Ill App2d 209, 217, 218, 225 NE2d 33 (1967). Irregularity of the resulting boundaries in itself is not a fatal defect in determining contiguity to a village. Western Nat. Bank of Cicero v. Village of Kildeer, supra, at page 351. “Contiguity” is to be given a uniform liberal construction throughout the annexation statute. In re Petition of Flossmoor v. Mutual Nat. Bank of Chicago, 23 Ill App2d 440, 445, 163 NE2d 215 (1960); and In re Annexation to City of Loves Park, 89 Ill App2d 284, 232 NE2d 144 (Abst, 1967); and contiguity has the same meaning under the disconnection statutes as under the annexation statutes. Wolbach v. Village of Flossmoor, 329 Ill App 528, 531, 69 NE2d 704 (1946); LaSalle Nat. Bank v. Village of Burr Ridge, supra, at pages 217, 218; LaSalle Nat. Bank v. Village of Willowbrook, 40 Ill App2d 359, 360, 189 NE 2d 690 (1963).

The trial court properly noted that it was not basing the decision on the reasonableness of the annexation or the irregularity in the shape of the territory to be annexed. However, we can find no authority for the general position taken that lack of contiguity may be based on the disproportion between the size and volume of the directly adjoining and connecting area which comprises a common boundary with a municipality, and the size and volume of petitioner’s tract which he seeks to annex.

Numerous decisions construing contiguity do not approach the definition with any such comparison between the size and volume of connecting tracts. They do, however, appear to have considered the width of the connection and the length of its projection beyond preannexation boundaries of municipalities. Additionally, the repeated statements in the authorities that each case is to be determined upon its particular facts obviously does not mean that the discretion of the trial court in determining what is contiguous in any case must be considered final and not subject to review. We must refer to the cases to find the limits of judicial review of a trial court’s determination of what is contiguous and what may not be.

In Wild v. The People ex rel. Stephens, 227 Ill 556, 81 NE 704 (1907), relied upon principally by objectors and by the trial court, the court held that where the territory sought to be incorporated involved a central area from which eight tentacles of land of different lengths and widths extended in various directions, there was no contiguity. One of the strips was 310 feet in width extending east and west some half mile and cornering with another strip 200 feet in width east and west, which extended south one-half mile and then intersected another tract of land 2,000 feet in length by 200 feet in width. The court noted that a person could not pass from one strip to the other without passing over land not within the village. Another strip of land 570 feet wide extended south from the main body of the territory almost a mile, and from the south 50 feet thereof a strip of land 50 feet wide extended west a half mile where it intersected the east line of a parcel of land 1,000 feet long and 550 feet wide. It was held that the tract of land which cornered was not contiguous and that the use of the 50 foot strip of land to connect the tract with other territory in the village was a mere subterfuge and was not in compliance with the law.

In Spaulding School Dist. No. 58 v. Waukegan, 18 Ill2d 526, 529, 165 NE2d 283 (1960), the court noted that “the intent of the legislature, as expressed in the word ‘contiguous,’ is that the territory to be annexed must have a substantial common boundary.”

We have found that no contiguity exists when a common boundary of one foot in one instance, and 83 feet in another sought to include “V” shaped configurations for a distance of 660 feet and 1377 feet, respectively; but have considered that contiguity did exist with reference to that part sought to be annexed which had a common boundary for a distance of 400 feet. People ex rel. Nash v. City of Loves Park, 59 Ill App2d 297, 207 NE2d 490 (Abst, 1965). Recently we have held that where land to be annexed touched the annexing city for a distance of only 20 feet there was not a substantial common boundary between the land annexed and the annexing city and, therefore, there was no contiguity. People ex rel. Cherry Valley Fire Protection Dist. v. City of Rockford, 120 Ill App2d 275, 286, 256 NE2d 653 (1970). We have held that a common boundary of 835 feet with Loves Park constituted contiguity. In re Ordinance No. 491, Annexing Territory to Loves Park, 89 Ill App2d 284, 232 NE2d 144 (Abst, 1967).

In LaSalle Nat. Bank v. Village of Willowbrook, 40 Ill App2d 359, 189 NE2d 690 (1963), it was held that two “fingers” of land, one 50 feet wide by one-quarter of a mile in length, the other 33 feet wide by 660 feet in length, were not isolated from the village following disconnection of intervening territory. Similarly, in LaSalle Nat. Bank v. Village of Burr Ridge, 81 Ill App2d 209, 225 NE2d 33 (1967), we held that two areas of land, one 170 feet in width by 2,400 feet in length, and the other 170 feet in width by 1,300 feet in length, remained substantially contiguous to the municipality after the disconnection of the intervening territory.

In the Matter of the Petition of Westmoreland, Inc., 15 Ill App2d 51, 145 NE2d 257 (Abst, 1957), the city of Springfield sought to annex territory which joined the city’s westerly limits with a width of 660 feet running westerly for 1,980 feet; joined a portion which ran southerly for 1,320 feet at right angles with a common boundary of 660 feet; continued southerly to connect with 1.320 foot wide parcels for a distance of some 2,640 feet; then ran southerly again an additional 2,640 feet with a width of 1,320 feet (objectors’ tract); and joined another 1.320 feet parcel running to the east at a right angle for a distance of 2,640 feet to a certain Chatham Road. (Roughly, the proposed parcels formed a block “G” configuration.)

The court held that contiguity existed between that part which connected directly to Springfield with a common boundary of 660 feet; and that each of the other parcels making up the “C” shaped territory were contiguous to each other, and thus contiguous to the city.

In People v. Village of Hawthorne Woods, 19 Ill2d 316, 318,167 NE2d 176 (1960), the Supreme Court found contiguity to exist under the provisions of Ill Rev Stats 1957, c 24, § 3-5, when the territory sought to be incorporated was composed “roughly of three areas, the two largest of which have a connecting common boundary for a distance of only 128.7 feet.”

Under these precedents, we must find that the common boundary with the Village of Long Grove for a distance of 675 feet and a width of 300 feet continued north to petitioners’ tract, constitutes contiguity in a reasonably substantial physical sense.

The objectors have devoted the major portion of their brief and argument here, however, to the proposition that the purpose of the contiguity requirement is to insure unity of purpose and facilities, with the corollary that the 300 foot strip selected from the midst of objectors’ farm can have no such unity of interest with a municipality. Objectors argue that annexation cannot benefit them from municipal service and will, in fact, cause detriment to them. The objectors further point out that the portion of their property included is of a size and in a position which precludes disconnection under the statute, and that, therefore, the trial court finding is the only result which can protect them against a wrongful inclusion of their property.

The statute, however, (Ill Rev Stats 1967, c 24, § 7-1-1) expressly provides for the annexation of “any territory which is not within the corporate limits of any municipality but which is contiguous to a municipality . . . .” There is no limitation in the language of the statute on the right of any petitioner other than an initiating municipality to include unsubdivided or farm lands. “Any territory” has a plain meaning and, in the absence of any limiting language which would require the inclusion of all property owned by an objector, must be held to contemplate including a portion of such property, and without regard to its use. See People v. City of DesPlaines, 76 Ill App2d 243, 246, 247, 222 NE2d 1 (1966).

In the corollary case of disconnection, courts have held that an owner who seeks to disconnect need not include all of his property in his petition. Penman v. Village of Philo, 309 Ill App 49, 54, 32 NE2d 640 (1941). Upon disconnection, however, the requirement is that, with the part excepted, the territory must remain connected to the municipality and not isolated from it. See Gieseking v. Village of Harvel, 24 Ill App2d 440, 443, 164 NE2d 622 (1960).

The objectors urge that it is unjust to permit petitioners to select that portion of their lands which divides the farm, and this argument has considerable persuasion. But to prevent this result we must add to the broad and plain statutory language an unstated requirement that “any territory” has a restricted meaning so that only territory on the perimeter of an objector’s land can be included. If that limitation is to be added, or if a petitioner may not include a portion which cannot be disconnected, the legislature must amend the statute considering the justice or injustice of the present requirement when applied to circumstances similar to those present in this case. In Spaulding, supra, at page 530, the court pointed out that it was for the legislature to determine the method of making boundary changes, that the legislature has made no requirement of reasonableness, and has left that question to the city council and the electors rather than to the court. In Kildeer, supra, at page 350, the court pointed out that what the framers of the statute would have done had it been in their minds that a case like the one under consideration would arise is not the point to be considered, but rather it is what they did in fact enact. We pointed out in People v. Village of North Barrington, 94 Ill App2d 265, 272, 237 NE2d 350 (1968), that municipalities are mere creatures of the legislature created for convenience in the handling of day to day local problems and that the legislature may act without consent and even against the protest of persons interested in the matter. We further stated that if petitioners for annexation comply with the technical requirements of the statute that the court must uphold the annexation.

Objectors have strongly urged that the term “contiguity” should be given the interpretation of more than mere touching or adjoining in a reasonably substantial physical sense, relying principally on People ex rel. South Barrington v. Hoffman, 30 Ill2d 385, 198 NE 2d 97 (1964). The following language in the majority opinion is emphasized (pages 387, 388) :

“The fundamental notion of a municipal corporation is that of unity and continuity, not separated or segregated area; a group of people gathered together in a single mass. This necessity for unity of purpose and facilities forms the very basis for the requirement of contiguity. Although the actual joining of territory is in most cases necessary to provide this community of interest, there may be certain instances where, because of physical obstructions such as navigable rivers or waterways, extended boundary contact between the municipality and the annexed area is impossible. Such does not, however, in all instances mean that there is no single community or that the tracts are not contiguous. 37 Am Jur, p 645.”

We do not consider that this case establishes an additional requirement of “unity of purpose and facilities” to the well recognized necessity of reasonably substantial physical touching, as constituting contiguity. The necessity for unity and continuity is but an aspect of the requirement of contiguity, for the purpose of creating extensions of municipal corporations which are not separated or segregated in a community sense. If there is reasonably substantial physical touching, there is contiguity. If the only obstruction to a unified community is a natural or artificial obstruction which may be bridged to unify a community, there may still be contiguity under the Hoffman Estates doctrine.

Obviously, if the statute permits the inclusion of unsubdivided lands beyond a city boundary including lands presently used for farming, there can be no requirement that the municipality must be already furnishing its services to the outlying area to comprise corporate unity. Objectors cite In re Ordinance No. 491, Annexing Territory to Loves Park, 89 Ill App2d 284, 232 NE2d 144 (Abst, 1967) in which we considered the above quoted language from Hoffman Estates. We noted there that “the record before us does not show that the city of Loves Park wiU not afford to the annexed area police and fire protection, garbage collection, or that it will fail to perform any other of the municipal functions.”

We there simply recognized that the concept of unity of purpose and facilities was the reason for the statutory requirement of contiguity. The standard of a “reasonably substantial touching” merely ensures that the municipality, when the new territory is included, wiH be connected and compact, not separated or segregated, in a community sense.

The citation by objectors of our opinion in People ex rel. Coojar Realty v. Village of Burr Ridge, 81 Ill App2d 203, 225 NE2d 39 (1967), does not point to a different conclusion. We there struck down an attempt of the village to restrain ordinary development of an unincorporated area by the mechanism of a roadway which it sought to project beyond its borders for future expansion. The territory there would not have been contiguous to the village in any community sense.

It may be argued persuasively that the construction which the courts have given to both the annexation and disconnection statutes have resulted in incorporations and disconnections which the legislature did not envision in the original enactment of the statutes and which may not be deemed just or advisable in retrospect. It may now be that a more restrictive statute should be enacted outlining the conditions required for changes in municipal boundaries. See University of Illinois Law Forum, Volume 1961, pages 452-467. The resolution of this question of policy is for the legislature and not for the courts.

We, therefore, hold that the judgment of the court below is against the manifest weight of the evidence. We reverse and remand with directions that the petition for annexation be granted and the question of annexation submitted to the corporate authorities of the Village of Buffalo Grove pursuant to statute.

Reversed and remanded with directions.

ABRAHAMSON and MORAN, JJ., concur.

       Objectors seek to distinguish disconnection from annexation cases, and argue that in Burr Ridge and Willowbrook the opinions dealt only with the question of whether the territory remaining after disconnection would be isolated from the municipality only in the sense of being physically separated from it; and that “contiguity” appears in the disconnection statute only to preclude removal when the property is contiguous to another municipality. However, in each case the court expressly refers to the remaining territory as still contiguous to the adjacent territory of the annexing municipality after the disconnection. If property is isolated from a municipality, it is not contiguous to it; if contiguous, it is then not isolated. The same definition of contiguity in reason must be applied to both the anexation and the disconnection statutes. See Wolbach v. Village of Flossmoor, supra.

       Section 7-1-2 contains a limitation only upon a corporate authority initiating such proceedings:
      "provided, no tract of land in excess of 10 acres in area may be included in the ordinances of a municipality initiating the proceedings without the express consent of the owner thereof unless the said tract (1) is subdivided into lots or blocks or (2) is bounded on at least 3 sides by lands subdivided into lots or blocks; . . .”
      so that we may not conclude that the legislature gave no expression to the problem.


author: PER CURIAM:

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Homer Jim Stallings and Travis Glenn Long, Defendants-Appellants.
    Gen. No. 70-21.
    Fifth District.
    August 31, 1970.

      Bruce N. Cook, of East St. Louis, for appellant.
    C. Glennon Rau, State’s Attorney of Monroe County, of Waterloo, for appellee.
   PER CURIAM:

Defendants Homer Jim Stallings and Travis Glenn Long appeal from their convictions of theft in the Circuit Court of Monroe County for which they each received a sentence of one to three years in the Illinois State Penitentiary.

Defendants were arrested in Moscow, Texas, on July 9, 1969 by the Texas Highway Patrol while in possession of a vehicle reported stolen in Waterloo, Illinois. On July 11,1969 defendants were served with a warrant for their arrest issued by Monroe County, Illinois, and at the request of Monroe County authorities, signed a waiver of extradition. Defendants were released to personnel of the Monroe County Sheriff’s Department on July 24, 1969 and were returned to Illinois on July 26, 1969. They were brought to trial on November 17, 1969, 117 days after their return to Illinois and 129 days after they were served with a warrant and waived extradition. Defendants filed an appropriate motion to dismiss pursuant to chapter 38, section 103-5, which was denied by the trial court.

The only question on appeal is whether the 120 day rule (Ill Rev Stats 1967, c 38, § 103-5) begins to run when the State of Illinois was entitled to custody after defendants were served with a warrant and waived extradition in another state, or when defendants are physically taken into custody in the State of Illinois.

Section 103-5 provides in part: “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. . . .” and Subparagraph (d): “Every person not tried in accordance with subsections (a), (b) and (c) of this section shall be discharged from custody or released from the obligations of his bail or recognizance.” (Ill Rev Stats 1967, c 38, § 103-5 (a) and (d).)

Defendants contend that they were in custody within the meaning of Section 103-5 (a) on July 11, 1969 when they were served with an arrest warrant issued by Monroe County, Illinois and signed a waiver of extradition, since on that date they were not being held for any other charge in Texas and were actually under the control of Illinois authorities.

There is much merit to defendant’s argument; however, we are bound by the language of People v. Hayes, 23 I112d 527, 179 NE2d 660, which states unequivocally that the 120-day period does not commence until the accused is actually confined in Illinois on the charge. Since defendants were tried within 120 days from the day they were confined in Illinois, the trial court properly denied their motion to dismiss.

We wish to thank appointed counsel for writing an excellent brief in this case.

The judgment of the trial court is affirmed.

Judgment affirmed.


author: JONES, J.

text:
    Donald Pleasant, Plaintiff-Appellee, v. Blue Mound Swim Club, a Corporation, Defendant-Appellant.
    Gen. No. 11,114.
    Fourth District.
    August 31, 1970.

      Hull, Armstrong & Campbell, of Decatur (Wayne E. Armstrong and Michael I. Campbell, of counsel), for appellant.
    Rosenberg, Rosenberg & Bickes, of Decatur (E. Rosenberg, Joseph L. Rosenberg and Wayne L. Bickes, of counsel), for appellee.
   JONES, J.

This is an appeal by the defendant from an order of the trial court denying its posttrial motion for judgment notwithstanding the verdict and in the alternative for new trial. The judgment appealed from was rendered in favor of plaintiff upon a jury verdict in the amount of $50,000. The injury upon which the suit was based was incurred when the plaintiff was swimming in a swimming pool owned and operated by defendant and made a dive off of the diving board into the pool, hitting the bottom with his head and arm. No questions are raised on the pleadings or on the instructions.

The pool in question was constructed, owned and operated by the defendant, a not for profit corporation. The use of the swimming pool facilities was limited to members of the club. The pool in question was built in 1962 and is in the shape of a trapezoid. It is fifty feet long, thirty feet wide at the shallow end and twenty feet wide at the deep end. The deep end is a diving well with four sloping sides. The deepest part of the diving well is a flat area eight feet by ten feet in size. The four sides slope upward from this deepest part, the most gradual slope being away from the diving board and toward the shallow end of the pool. The depth of the pool when measured from the overflow drain is nine feet at the bottom of the diving well, five feet at the center of the pool at the terminus of the gradual slope upward from the diving well and three feet at the shallow end opposite the diving board. The pool is constructed of concrete and is painted white. There is a border of blue tile six inches wide around the pool two inches below the overflow drain. There are two underwater lights, one under the diving board and one on a sidewall. The diving board was fourteen feet long and of wood and fiberglass construction. The diving board was eighteen inches above the concrete deck surrounding the pool and the end of the diving board is two feet above the overflow drain and extends out three and one-half feet from the edge of the pool. There were depth markers on the edge of the deck next to the pool. These were located on each side of the pool in four to five inch letters painted in black on a white background. The letters were “9 Ft.” at the center of the diving well, “5 Ft.” at the center of the pool and “3 Ft.” at the center of the shallow end.

At the time of the accident the plaintiff was twenty-five years of age, six feet two inches in height and weighed 158 to 160 pounds. He had learned to swim and dive at age eleven. He had considerable experience in swimming and diving and considered himself a pretty fair swimmer. He had experience in diving from heights of eight to ten feet and on one occasion had dived from a height of five feet into as little as three feet of water. He testified that a diver could control his dive by the manner in which he dived.

Plaintiff and his family joined the defendant club in the summer of 1964. The date of the accident, September 7, 1964, was the last day the pool was to be open that season. Although plaintiff’s wife and children had been to the pool on several occasions that summer this was the first and only time the plaintiff had ever swam at the pool. The plaintiff’s wife and children went to the pool thirty to forty-five minutes before plaintiff joined them after he finished work. Prior to plaintiff’s arrival the pool manager had started backflushing the pool filters. This operation utilized water from the pool and caused the water level of the pool to go down. The pool manager testified that at the time he started the backflushing process most of the people at the pool had left. He also testified that he thinks he “over backflushed” and that the operation continued twelve to fifteen minutes when it normally takes about ten minutes. Backflushing for any length of time will lower the water in the pool. The manager stopped because people began to arrive at the pool and the plaintiff arrived after the backflushing operation had stopped. At the time plaintiff arrived at the pool the manager and two lifeguards were on duty but the lifeguards were not near the pool. There were also two boys at the pool, Thomas Ritter and David Holtfretter. The manager of the pool told these boys that the water in the pool had been lowered and warned them to be careful. Neither the manager nor the lifeguards made any statement or gave any warning to plaintiff concerning the water level. The manager of the pool knew plaintiff was present since he watched him “sign in” as required by the club’s bylaws.

Plaintiff entered the pool at the shallow end and spent some time talking to his wife and playing with his children. Plaintiff then got out of the pool and walked to the deep end, walked out on the diving board and made a dive. The dive was characterized as “ordinary” with the hands over the head and plaintiff entering the water at approximately a forty-five degree angle. After the dive, the next thing the plaintiff knew was that he had a crushing blow to his head which had hit the upward slope of the pool. The plaintiff floated to the surface, paralyzed, and was pulled from the pool by bystanders.

Plaintiff testified that he didn’t know if there was a dark colored tile around the top of the pool near the overflow, he didn’t know where the water level was with relation to the overflow, he didn’t know whether the floodlights illuminating the general area were on nor whether the underwater lights were on but at the time of his dive it was getting pretty dark. Prior to his dive he did not notice any depth markers. Plaintiff heard his wife say the water was lower than usual but paid no attention to her remark. He could not see bottom because of small ripples on top of the water and described the lighting condition as not good. He dived into the water without being able to see the bottom. His eyes were closed and he did not open them during the dive. The only thing he relied on as to water depth was his observation from his front yard nearby of other people diving off the board over the two or three summers before the accident. He admitted on cross-examination that prior to his dive he had done nothing to determine the depth of the water.

The evidence as to the depth of the water at the time plaintiff made his dive is in conflict. Thomas Ritter testified that the water was approximately sixteen inches below the overflow drain or about a foot or more below normal. David Holtfretter testified that the water was a foot below normal level which was usually as close as practical to the top of the pool. He said he could tell the water was low before plaintiff dived because the water level was below the blue tile. He dived once after the water was lowered and was not injured. He made a flat dive because he knew the water was low. Plaintiff’s wife testified that at the time of the dive she was standing where the dividing rope normally was (it was not in place at the time) and although the water was normally up to her chin it was, on this occasion, at her waist. This distance was demonstrated to the jury by her indicating on her body the two water levels. The record does not indicate this distance in inches or feet. The pool manager testified that in his opinion the water level was approximately one foot below the overflow drain but he made his observation the night after the night of the accident and did not observe the water level at the time of the occurrence. A witness qualified as an expert swimmer and diver testified on behalf of defendant. He stated that recognized standards of minimum depths of water recommended in diving areas beneath diving boards were for a minimum depth of eight feet under a one meter (39.37 inches) board. He also stated that the higher the board the more water you should have underneath it.

It is defendant’s contention that the trial court erred in not granting its posttrial motion for judgment notwithstanding the verdict or in the alternative for new trial. It argues that such judgment should be granted since the evidence when considered in its aspect most favorable to plaintiff so overwhelmingly favors defendant that no other verdict could ever stand and under the rule of Pedrick v. Peoria & Eastern R. R. Co., 37 Ill2d 494, 229 NE2d 504, it is entitled to judgment as a matter of law. The alternative argument for a new trial is that the jury verdict is contrary to the manifest weight of the evidence. It is plaintiff’s position that the evidence presented questions of fact for resolution by a jury and their finding for plaintiff is amply supported by the evidence and should not be set aside in this appeal.

The parties are in agreement that there are no Illinois cases involving injuries received by persons diving into a swimming pool. The case of Hendricks v. Peabody Coal Co., 115 Ill App2d 35, 253 NE2d 56, concerned an injury received when a minor dived into a mining excavation and struck a ledge, and the case of Skaggs v. Junis, 27 Ill App2d 251, 169 NE2d 684, concerned an injury received by a minor who dived into an artificial pond and struck a submerged stump and neither case would be controlling here. Both parties rely upon cases from other jurisdictions.

Defendant cites the cases of Day v. Trion Co., 56 Ga App 1, 192 SE 88 (1937), Webb v. Thomas, 133 Colo 458, 296 P2d 1036 (1956), Nelson v. Langstrom, 252 Iowa 965, 108 NW2d 58 (1961), Prusinki v. Holland, 228 F Supp 959, Richardson v. Ritter, 197 NC 108, 147 SE 676 (1929), Caruso v. Aetna Insurance Company (La), 186 So2d 851 (1966) and Chauvin v. Atlas Insurance Company (La), 166 So2d 581 (1964). The Day, Webb, Nelson and Caruso cases concern dives made from the sides of a swimming pool into shallow depths. The Prusinki case concerned a guest at defendant’s resort, who, knowing the water depth, jumped off a pier into shallow water. The Richardson case concerned a dive into an artificial lake from the edge of the water some distance away from the diving board erected by the defendant. The plaintiff there had made no effort to determine the depth of the water before making his dive. We deem these cases inapposite on the facts. The case of Chauvin v. Atlas Insurance Company, supra, concerned a dive from a board into a swimming pool while plaintiff was a guest at the home of defendant’s insured. At a time when the insured was standing in four or five feet of water approximately fifteen feet from the diving board, the plaintiff dived from the board and landed approximately where the insured was standing striking his head on the bottom of the pool. The trial court’s judgment was for the defendant and that judgment was upheld on appeal. In its opinion the Court of Appeal of Louisiana pointed out that there may have been a diving contest in progress, there had been challenges as to who could dive the farthest. The plaintiff, by his own admission, attempted a long dive about fifteen feet from the end of the board to where his host was standing. The court stated:

“Diving under the most favorable conditions is fraught with many dangers, and a diver is required to make some inquiry or investigation to determine the safety of diving before doing so. The presence of a diving board, which is an invitation to dive,' does not relieve one of the duty to make this inquiry when diving for the first time into an unfamiliar pool. The plaintiff had never been in the pool before and his initial entry into the water was in the ill-fated dive. . . . We agree with the trial judge that the plaintiff was negligent in the manner in which he entered the water without first having made more reasonable inquiry, or better still an investigation by first entering the pool in a safer manner. . . . It is our opinion that the plaintiff must bear the responsibility for his own careless and negligent act which caused his injury.”

Plaintiff cites Cummings v. Borough of Nazareth, 427 Pa 14, 233 A2d 874 (1967), City of Ferguson v. Marrow, 210 F2d 520 (CA 8th 1954), Indian Springs Swimming Pool Corp. v. Maddox, 70 Ga App 842, 29 SE 2d 724 (1944) and Gray v. Briggs, 259 Mich 440, 243 NW 254 (1932). In the Cummings case a sixteen and one-half year old plaintiff made a dive into defendant’s swimming pool from the diving board and was injured when he struck bottom. Below the board the pool depth was 6 feet 8% inches. The experts in that case testified that the minimum safety depth under a one meter board was nine to ten feet. The board involved was 44.37 inches from the water. No warnings were given to plaintiff as to depth at the time of his dive. A jury verdict for the plaintiff was affirmed on appeal, the court stating:

“Among the duties relating to diving which have been imposed by the courts on the proprietors of bathing resorts or swimming pools are the duties to use care, to provide . . . water of a reasonable safe depth, free from obstructions or to warn the patrons of the danger in diving ... of the insufficient depth of, or obstructions in, the water.”

In the Ferguson case a judgment for plaintiff was affirmed in a diving board accident from a three meter board. The pool markings indicated eleven feet in the area of the diving pit but the deepest portion of the pit was, in fact, only 10 feet. The pool slanted up as it went away from the board and one part of the pool marked “11 feet” was only 9 feet 6 inches. The lifeguards had been advised that some persons would make long dives of 15 feet or more and that they should warn persons against making such dives since they would be dangerous in the pool in question. Plaintiff was unfamiliar with the pool and received no warnings. The court stated:

“The diving board was an invitation for its use, with an implied representation that its use was not dangerous. It was not used in a manner which the City should not have reasonably anticipated. It was dangerous and the City was charged with knowledge thereof. The jury was warranted in inferring that the City had actual knowledge of the danger. There were no warning signs. Plaintiff was given no warning. He could not see the bottom of the pool and did not know and could not tell how deep the water was. The danger was therefore not so obvious to him as to eliminate the failure to warn as a proximate cause of his injury or to make him guilty of contributory negligence.”

In the Indian Springs case plaintiff’s decedent came directly from the dressing room at defendant’s pool, walked to the diving board, and made a dive from the spring board, landing in 3 to 3feet of water. The evidence of warning of low water was conflicting. The court held that the question of negligence and due care was a question of fact for the jury. In the Gray case the plaintiff made a dive from a diving board which defendant had erected at the end of a pier. There was no sign or warning concerning the water depth but the evidence was that plaintiff saw others diving from the board and assumed the water was sufficiently deep to permit safe diving. The water was 5% feet deep in front of the board and plaintiff was injured when he hit bottom from a “jack-knife” dive. The court held:

“Defendants contend that it was contributory negligence as a matter of law for plaintiff to dive in the manner indicated without knowing or making any effort to ascertain the depth of the water. The trial judge reviewed the testimony and properly instructed the jury that unless they found that plaintiff had been warned by numerous signs and by the life guard, as asserted by defendants and denied by plaintiff, the latter had a right to assume that it was safe for him to use the diving board in the usual and customary manner.”

The pool in question was not a farm pond, a mining excavation, a borrow pit or other random body of water improvised for swimming and diving. To the contrary, it was a constructed swimming pool equipped with a diving board, a place expressly provided for swimming and diving activities. In such a circumstance we believe the better rule to be that the presence of a diving board is an invitation to use it and an implied representation that it may be used in an ordinary manner with safety. It is reasonable to assume that the water beneath a diving board is sufficiently deep to permit use of the board and avoid injury by striking the bottom of the pool. Corollary is the duty of the owner of a swimming pool equipped with a diving board to provide water beneath it of sufficient depth to dive with safety and to warn persons using the board of any dangerous conditions or instrumentalities. We do not mean to say that the liability for injuries received in diving from a provided board is absolute. The ordinary rules of negligence apply and evidence may justify a finding that a party so engaged is guilty of contributory negligence and thus barred from a recovery.

From the evidence presented to it the jury could have found that the water level had been lowered to the extent that it constituted a dangerous condition, that the defendant, through its manager, knew of the dangerous condition and in fact had brought it about by the backflushing process, that the presence of plaintiff was known and the pool manager and lifeguards failed to warn him of the dangerous condition despite the fact that they had warned others present, and that in so failing they were guilty of negligence which was the proximate cause of plaintiff’s injury. The plaintiff was not guilty of contributory negligence as a matter of law in failing to test the depth of the water underneath the board before making his dive. Upon the basis of the evidence presented the jury could find plaintiff was free from contributory negligence as a matter of fact, though such finding is contrary to defendant’s argument. Defendant states that the plaintiff had positive notice of the lowered level of the water in the pool by the presence of the depth markers around the pool, by the blue tile near the overflow drain which indicated the water depth, and in that the bottom of the pool could be clearly seen because of the lighting and the clarity of the water. However, these indicia were not absolute in their purpose. This was plaintiff’s first visit to the pool and from his front yard he had seen others making dives from the board just as he did. Plaintiff was warranted in believing that the pool depth was that as indicated by the markers. The blue tile could well be trim or decoration. Plaintiff testified that he could not see the bottom clearly because of the ripples on the water and that the lighting was not good. In sum, the disputed facts of the case present a preeminent situation for resolution by a jury. Their finding is not against the manifest weight of the evidence and we will not set it aside.

The trial court was correct in refusing to grant defendant’s motions for judgment notwithstanding the verdict and for new trial and its judgment will be affirmed.

Affirmed.

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


author: TRAPP, J.

text:
    Allied Van Lines, Inc., a Corporation, and Ardapple Storage & Moving Co., Inc., a Corporation, Plaintiffs-Appellees, v. Paul Powell, Secretary of State of the State of Illinois, Defendant-Appellant.
    Gen. No. 11,138.
    Fourth District.
    August 31, 1970.

      William J. Scott, Attorney General of State of Illinois, of Chicago (Francis T. Crowe, Herman R. Tavins, and A. Zola Groves, Assistant Attorneys General, of counsel), for appellant.
    John P. McCarthy, Richard P. Hefferan, of Chicago, and C. Terry Lindner, of Giffin, Winning, Lindner, New-kirk & Cohen, of Springfield, for appellees.
   TRAPP, J.

The Secretary of State of the State of Illinois, as defendant, appeals from a judgment of the Circuit Court entered July 29, 1968, reversing an administrative decision of the Secretary. His decision approved the denial by the Office of the Secretary of State of an application by plaintiff, Ardapple Storage and Moving Company, Inc., for reciprocity plates for vehicles of the second division, and dismissal of a petition of plaintiff, Allied Van Lines, Inc., for administrative relief.

Allied Van Lines, Inc. is a not-for-profit Delaware corporation licensed to do business in Illinois, a common carrier by motor vehicle of household goods for hire in interstate commerce certificated by the Interstate Commerce Commission and also by the Illinois Commerce Commission, having a principal place of business in the Village of Broadview, Cook County, Illinois. Allied has 800 agent members domiciled in 48 adjacent states, and is owned by 500 of its agent members, each of whom holds one share of Allied’s voting stock. Through Allied’s standard form of printed lease, each of Allied’s agent members leased to Allied one or more of its motor vehicles suitable for transportation of household goods for a term of two (2) years, and from year to year thereafter unless terminated. Allied has no right to purchase. In all cases the equipment and personnel are furnished by the agent members and expenses for the same are paid by the agent member.

The lease provides that the lessee shall have exclusive supervision and control over the operation of the vehicle, driver and helper, including the time and place of arrival, departure, detention, routing and manner of operation. The interstate operation is under the authority of Allied’s certification.

Allied Van Lines, Inc. began as an association of long distance household goods haulers whose purpose was to avoid empty return hauls from long trips by cooperation in the use of facilities. The United States Justice Department, in conjunction with the Interstate Commerce Commission, set forth specific restrictions when Allied’s operating authority was granted. There must be a certain technical control exercised by any certificated carrier. In the order of the Federal Commission it is provided that Allied owns no equipment, employs no drivers and must use the equipment and personnel of its members.

Ardapple is an Indiana corporation and resident, which owns four vehicles that it leases to Allied under a standard form lease. Interstate shipments are registered with Allied and shipped under an Allied bill of lading. The vehicles are registered by Ardapple in Indiana. Each vehicle, so leased, bears Allied’s name thereon.

Pursuant to the authority of chapter 95%, § 3-402, subd (B) (4), Ill Rev Stats 1957, the Secretary of State of Illinois, on September 15, 1958, issued a written Declaration of Reciprocity with regard to Indiana which provided in part (Art II, § 2, subparagraph (6)):

“ (6) Notwithstanding anything herein to the contrary, if such commercial vehicle is a leased vehicle for the purpose of transporting household goods, such vehicle must be properly licensed and registered in the State of residence of the lessor and must display current, valid registration or license plates issued for such vehicle by the State of residence of the owner and display any reciprocity permit or plates and identification required by either of the states.”

There has been no written revocation or amendment of the said Declaration of Reciprocity by the Secretary of State. Prior to January 1, 1967, Ardapple applied to the Secretary of State of Illinois and received reciprocity plates which it displayed on the vehicles. There was no annual reciprocity registration, but by letter of March 24, 1967, the defendant Secretary of State notified all persons claiming reciprocity in Illinois that with respect to vehicles of the second division they must, effective April 1, 1967, file an “Illinois Reciprocity Qualification Form.” Ardapple submitted the form and applied for reciprocity.

By letter of May 13, 1967, the defendant Secretary of State notified Ardapple as follows:

"We are in receipt of your Application for Illinois Reciprocity Plates and according to Item #7 of your qualification form you are operating under Allied Van Lines authority.
“Vehicles which are subject to long term lease agreements must be qualified in the name of the lessee.”

Allied applied to the Secretary of State for administrative relief pursuant to chapter 951/2, § 3-402, subd B(7), Ill Rev Stats 1967. Thereafter, Ardapple also petitioned for administrative relief. The matters were heard together. The Secretary of State ruled that Ardapple’s application for Illinois reciprocity privileges was properly denied, and further ruled that Allied was not an “aggrieved” party within the meaning of such section and its petition was dismissed.

Allied was advised by the Supervisor of the Reciprocity and Prorate Division of the Office of the Secretary of State, that as of July 1, 1967, Allied, like any other carrier, would be expected to prorate in Illinois its entire fleet of vehicles based in those states with which Illinois was then reciprocal, and effective immediately all current applications for reciprocity plates filed by Allied’s agents located in any reciprocal states would be denied.

We should first dispose of the contention that Allied is not an aggrieved party. While it is true that Allied did not make any application to the Secretary of State, and therefore, in such sense Allied was not denied a benefit nor was a privilege formerly granted to it revoked or suspended by formal order, nevertheless, it was officially advised that it could not operate in Illinois upon its agents’ reciprocity privileges, and that it would be expected to prorate leased vehicles. This action had all of the practical effect of revoking what had formerly been established as a privilege by official order of the Secretary of State in the Declaration of Reciprocity of September 15,1958, above noted.

The term “aggrieved” would certainly include cessation of a privilege to operate on the highway without registration and payment of a prorate fee. See Weer v. Gand, 88 Ill 490, 491, where a surety on a guardian’s bond, though not a party to the litigation of a claim, was allowed to appeal a claim classification under a statute conferring a right of appeal on any person “aggrieved.” See also Moulding v. Wilhartz, 169 Ill 422, 428, 48 NE 189; In re Everly’s Estate, 322 Ill App 363, 54 NE2d 627 and Lee v. Nash, 3 Ill App2d 371, 122 NE2d 282. It also appears to us that without formal amendment, the Secretary of State suspended generally the privileges granted to Allied as a lessee to operate in Illinois upon the Indiana’s lessor’s reciprocity privileges granted by the Declaration of Reciprocity of September 15, 1958. Further it appears, that by the lease arrangement, Allied had rights under its contract which could no longer be exercised in the same manner when Ardapple’s reciprocity was denied.

At the time of the hearing afforded by the Secretary of State and at, the time of the order of the trial court on administrative review, the statute (c 95%, § 1-140, Ill Rev Stats 1965) defined an owner as one who held title to a motor vehicle, or if there was a conditional sale or lease agreement with right of purchase and immediate possession in vendee or lessee, or a mortgage, then the vendee, lessee or mortgagor was the owner. Section 3-402, subd (B) (1), Ill Rev Stats 1965, provided that a nonresident owner could operate without registration or paying fees if Illinois had a reciprocity declaration pursuant to which the vehicle was operated, if the vehicle was registered in the State of the owner’s residence and had reciprocity permit.

Ardapple qualified in all respects for a reciprocity permit at the time of the trial in the Circuit Court under the Administrative Review Act. The Secretary of State took the view that by reason of the “long term lease” Allied, and not Ardapple, was the owner. The only exceptions to the definition of owner as the holder of the title were a mortgagor or a lessee or vendee with a right to purchase and immediate possession under chapter 95%, § 1-140, Ill Rev Stats 1965. The defendant had no authority to redefine “owner” in terms different from the statute. Additionally, the Secretary of State had, by the Declaration of Reciprocity of September 15, 1958, above, defined a “lessor” as owner and specified that registration and plates issued by the state of the owner’s residence would suffice for reciprocity. We cannot accept defendant’s argument that the Motor Carrier of Property Act (c 95%, §282.2(16), Ill Rev Stats 1967), which defines a lease as a document providing for exclusive possession of a vehicle in the lessee for a specific time “as if such lessee were the owner” authorized the Secretary of State to expand the definition of owner in the Motor Vehicle Act.

It is next argued that the action of the Secretary of State in reference to Ardapple’s application for reciprocity privileges did not deny reciprocity privileges to Ardapple, but merely ruled that Allied, the lessee and operator, had to make the application for the reciprocity plates. Defendant argues thus:

“However, the Secretary of State did not deny reciprocity privileges and exemptions to any Allied agent nor to Ardapple, but urged that Allied, the lessee and sole operator of the vehicles in question, had to make the application for reciprocity plates. This, Allied did not do, and was therefore not denied plates. Ardapple was not denied reciprocity privileges as stated; Ardapple was merely told that its vehicles could be qualified only upon Allied’s application as the carrier and lessee in full control while those vehicles were in Illinois.”

An examination of the Motor Vehicle Act reveals that the above argument fails to disclose that there are two kinds of reciprocity provided, and that Ardapple was denied the residence reciprocity which would enable it to have the vehicles operated by its lessee without registration and payment of fees. (Chapter 95%, § 3-402, subd B, Ill Rev Stats 1967), has a number of subdivisions. Subparagraph (1) applies only to a nonresident such an Ardapple, and it provides for “operation of such vehicle within this State without registering such vehicle in, or paying any fees to this State . . . .” Subparagraph (2) applied to “any motor vehicle” regardless of the residence of the owner. Since Allied has been found to be a resident of Illinois, it cannot qualify under subparagraph (1). If Allied should apply under subparagraph (2), it would be admitting that it is the “owner” and not the lessee. Additionally, subparagraph (2) does not permit operation without registration or without payment of fees. It requires, in subparagraph 2(b), as one of the conditions:

“ (b) that such vehicle is part of a fleet of vehicles owned or operated by the same person who registers such fleet of vehicles pro rata among the various States in which such fleet operates;....”

It further requires that a portion of the fleet be registered with the Secretary of State of Illinois based on ratio of miles in Illinois to miles travelled in all jurisdictions, or some other formula. Accordingly, the position of the Secretary of State was that Ardapple could not obtain its former reciprocity status of operation without registration and payment of fees because it is not the “owner” as now defined by the Secretary. This former status is sometimes called residence reciprocity. The kind of reciprocity which it could obtain would be to have Allied, an Illinois resident, apply under chapter 95%, § 3-402, subd B(2), for “apportionment reciprocity” and pay a fee on a fleet apportionment on a mileage ratio.

The clear difference between the “residence reciprocity” and the “apportionment reciprocity” provided by the Illinois Statute is thoroughly explained in the “Historical and Source Comment” in Illinois Annotated Statutes, c 95%, § 3-402.

We are further asked to declare retroactive an amendment of chapter 95%, § 1-140, Ill Rev Stats 1967, which amendment was enacted by House Bill 2637 approved August 21, 1968. This amendment added to the definition of “owner” the lessee “in the event a lessee of such motor vehicle is entitled to possession or control.” At all events, this act was approved after the decision in the trial court, and we could not classify it as a clarifying amendment.

We are asked to support the Secretary of State’s position in this case by the Secretary of State’s power to make, amend and rescind rules under chapter 95%, § 2-104(b), Ill Rev Stats 1967. It should first be observed that the Secretary of State has not, in fact, amended the Declaration of Reciprocity of September 15, 1958, above referred to. Again, the rule making authority is to be executed in accordance with “An Act concerning Administrative Rules,” approved June 14, 1951 (c 127, § 263, Ill Rev Stats 1967). There is nothing in this record to show that the Secretary of State attempted to formulate a “rule.” In passing, we question the validity of the distinction between a “lease” and a “long term lease.” Finally, at the time of the trial the statutory definition of “owner” was clear, and we do not find any authority granted to the Secretary of State to change the definition.

It is urged that administrative decisions of the Secretary of State are prima facie correct. Conceding this principle, it is also true that questions of law determined by the administrative body are reviewable. Caterpillar Tractor Co. v. Department of Revenue, 29 Ill2d 564, 194 NE2d 257, 258; Wallace v. Annunzio, 411 Ill 172, 175, 103 NE2d 467. No issues of fact are presented.

The judgment of the trial court is affirmed.

Affirmed.

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


author: SIMKINS, J.

text:
    Randall L. Loveless, Plaintiff-Appellee, v. Mary L. Loveless, Defendant-Appellant.
    Gen. No. 11,150.
    Fourth District.
    August 31, 1970.

      J. Waldo Ackerman, of Springfield, for appellant.
    Phelps & Russell, of Carlinville (John W. Russell, of counsel), for appellee.
   SIMKINS, J.

The Plaintiff, Randall L. Loveless, and Defendant, Mary L. Loveless, were married October 15, 1960, and on April 5, 1968, the Plaintiff filed suit for divorce on the grounds of mental and physical cruelty. The parties had been living separate and apart since December 3, 1967.

The defendant filed a counterclaim seeking a decree of separate maintenance, and the counterclaim was later amended to include a prayer for a decree of divorce on the grounds of physical and mental cruelty.

The trial court granted plaintiff divorce on the ground of mental cruelty, awarded custody of the children, Lance age 6, Lisa age 5, and Bruce age 2, to the plaintiff, and allotted alimony in gross to defendant in the sum of $90,000.

Defendant urges here that the plaintiff failed to establish the grounds for divorce. The plaintiff’s evidence was that the defendant cursed him, threw things at him, was subject to repeated temper tantrums, endeavored to tear up the furniture, broke windows in the family home, stated that she did not want to take care of their children, cursed in front of the children, showed them little affection, and caused them to be hysterical, nervous and upset, that she had no control over her temper, and often displayed these characteristics in public. The plaintiff testified that when defendant became violent during her temper tantrums, he would restrain her by holding her arms. He denied that he ever struck or injured defendant.

Defendant testified that she was in love with her husband until she consulted with a psychiatrist, Doctor Hempel, in December of 1968, after which consultation she was no longer in love with him, that she did not break windows or throw things or curse plaintiff, that he was guilty of physical cruelty in that he put his hands over her mouth in a “suffocating manner,” never showed her any affection, that he struck her, leaving marks on her arms and neck, knocked her head against a cabinet and gave her a black eye. She also testified that he stated he wanted a divorce so that he could marry again.

These varying versions of the marital relationship were supported by witnesses called by the respective parties, and the testimony as above indicated, was in total conflict and contradiction. Thus were posed the traditional questions of fact and credibility for the trier of fact. “Whether certain acts will constitute . . . mental cruelty still depends upon the total factual background surrounding the conduct under question. This includes the particular emotional and personal makeup of the parties, and the varying circumstances under which any of the incidents occurred that may have given rise to the acts.” (Stanard v. Stanard, 108 Ill App2d 240, 248, 247 NE2d 438.) The trial judge found the facts in favor of the plaintiff and there was ample evidence upon which to base the decree for divorce on the ground of mental cruelty. This finding is not clearly and manifestly against the weight of the evidence and will not, therefore, be disturbed on review (Fox v. Fox, 9 Ill2d 509, 516, 517, 138 NE2d 547).

The defendant also urges that she was “mentally ill” at the time of the commission of the acts upon which the trial court predicated its finding of mental cruelty, and this presented an issue to be resolved by the trier of fact. The record discloses that defendant had been undergoing psychiatric care, had been hospitalized on several occasions and had been given shock treatments. At the time of the institution of the original action for divorce, the court appointed Doctor Frank Shobe as an examining psychiatrist, and his report advised the court that she was suffering from manic-depressive disease which was in remission. That she was capable of standing trial and was mentally competent, but that in view of her past history and unstable behavior, she was not capable of being an adequate mother to the children. In support of her claim, defendant called Doctor Fitzgerald, a clinical psychologist, who had examined the defendant. He found her I. Q. to be “bright-average to superior,” that her personality tests were within normal range, that she was within normal limits in areas of depression and paranoia. That her Bender-Gestalt test was almost perfect, and that no test administered by him showed manic depressive symptoms, and that she had no personality problems.

Doctor Warren B. Hempel, a psychiatrist, called by defendant as a witness, had examined her and had access to her previous medical history. He testified that in October of 1968, when he examined her, she was functioning in a normal range, that if she had ever been a manic depressive she was in remission, that he did not consider her a manic depressive and that her history was not that of a manic depressive. In addition, lay witnesses expressed contradictory opinions concerning her mental condition during the time in question. There is sufficient evidence upon which the trial court could have based a conclusion, as it did, that defendant was legally responsible for her actions during the marriage.

Defendant also urges that plaintiff failed to prove the effect upon him of her conduct. However, the record discloses plaintiff’s evidence to be that he was affected to the point that he could not apply his mind to the conduct of his extensive business affairs, that he took aspirin continually, that he was worried about the health and welfare of the children, that he was unable to make the decisions required in his business from day to day and that his life was a constant turmoil.

Defendant also maintains that she should have been awarded custody of the minor children. Here again, the testimony was in complete contradiction. Defendant and her witnesses testifying that she was a loving, kind and attentive mother, while plaintiff and his witnesses testified to the contrary. There must be a positive showing to deny the mother of young children the right to custody. (Nye v. Nye, 411 Ill 408, 414, 105 NE2d 300), but as the court observed in Wolfrum v. Wolfrum, 5 Ill App2d 471, 475, 126 NE2d 34, “This is not an inflexible rule, however, since the welfare of the child is the prime consideration.” There is no evidence in this record involving moral turpitude on the part of the defendant, but there was evidence which amounted to a positive showing that the interests of the children would be best served by the award of the custody to the plaintiff and this showing is sufficient to support the award. (Nye v. Nye, supra.) The trial court gave careful attention to the testimony and awarded custody based upon the controlling factor of consideration for the welfare of the children. Temporary custody was also awarded to the plaintiff and the testimony was that during the absence of the mother from the home, the children were much more relaxed, disciplined, and that they were happy and contented, but that during brief visitations with the mother they again became nervous and upset. We are not disposed to disturb the award of custody. Visitation privileges granted to the defendant are indeed minimal, but remain under the control of the court and are, therefore, subject to change as circumstances and actual experience dictate, and indeed the trial judge indicated that the visitation was dependent upon the manner in which it worked out.

Defendant also urges that the “wife without fault” is entitled to more than $90,000 alimony in gross. At the time of trial defendant, who was twenty-nine years of age, and is a registered nurse, was employed full time in the medical division at Memorial Hospital in Alton, Illinois, earning approximately $400 per month.

Here the trial court found that defendant was not without fault, and plaintiff urges in his brief and argument that the award is reasonable and should be affirmed. The question of the propriety of the award of alimony in gross, as contrasted to periodic payments, is not before this court. Both parties urged the trial court to dispose of the alimony question by an award in gross, or by some method other than periodic payments, and the only question before us involves the adequacy of the award. Plaintiff is a man of substantial means, his land holdings are extensive and his principal source of income is derived from the purchase and sale of feeder cattle. His financial statement furnished to the Carlinville State Bank under date of April 1, 1968, disclosed his net worth as, of that time, to be slightly in excess of $500,000.

Defendant’s testimony as to her needs was quite limited. She testified that she needed a house, a car, furniture and money to maintain the house and felt that she should have $260,000. She stated that she felt her husband was worth approximately $700,000 and she was entitled to some of this money, and this was the extent of her testimony as to needs.

The only evidence as to plaintiff’s annual net income is in the form of a 1967 Federal income tax return and that disclosed his net income, for that year, to be in the sum of $17,855.27.

The determination of the amount of alimony to be awarded is a decision which rests within the sound discretion of the trial court, and the award is not to be set aside unless it is contrary to the manifest weight of the evidence (Hoffmann v. Hoffmann, 40 Ill2d 344, 349, 239 NE2d 792). Here the trial court found the defendant to be at fault, and after reviewing the record we are not disposed to say that the trial court unreasonably exercised its discretion. The court’s decree provided that the $90,000 award was to be paid as follows: $30,000 within three weeks of the decree of the court and $6,000 per year until the balance of the award was paid in full. This award was substantial and, in our view, adequate.

Defendant also urges that she was entitled to one-half of the Scott County farm which had been sold under contract for deed for $180,000, claiming that she was a part owner of that property. The record irrefutably belies the contention of ownership. The deed conveying the farm to plaintiff was introduced into evidence. The conveyance was made August 17, 1961, and there is no evidence that he thereafter conveyed any interest to the defendant. Defendant’s sole basis for her contention that she owned an interest in the farm at the time of the sale, was that she joined in the contract for deed and was designated as a “seller.” It is abundantly clear that her only interest in the premises was that of an inchoate right of dower.

The decree of the trial court is affirmed.

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


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

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Willie Sangster, Defendant-Appellant.
    Gen. No. 11,161.
    Fourth District.
    August 31, 1970.
    CRAVEN, P. J., dissenting.
    Asher O. Geisler, Burger, Geisler & Fombelle, of Decatur, for appellant.
    Basil G. Greanias, State’s Attorney of Macon County, of Decatur (Milo J. See, Jr., Assistant State’s Attorney, of counsel), for appellee.
   TRAPP, J.

At the conclusion of a bench trial defendant was found guilty of pandering and sentenced to a term of two to five years. He appeals.

The offense was charged in the language:

“. . . that for money he arranged a situation in which Toye Brown, a female, did practice prostitution.”

Ill Rev Stats 1967, c 38, § 11-16 (a) (2).

It is defendant’s theory that the evidence was not sufficient to support the conviction for this offense, arguing that if the evidence is sufficient to show any offense committed such would be under c 38, § 11-19, pimping, or possibly under c 38, § 11-15, soliciting for a prostitute.

Defendant argues that under the provisions of the Criminal Code of 1961, pandering arises by reason of the relationship existing, and acts done, between the panderer and the prostitute in terms of recruitment or arranging a situation in which the woman practices prostitution. We agree.

Apart from defendant’s testimony that he did not live at the address and that he was just visiting the “nice girls” without knowledge that they were practicing prostitution, the principal facts are that following receipt of complaints of venereal disease the police raided the premises. Officers Sandage and Coventry stopped in front of the premises where defendant was sitting on the front porch. Sandage asked defendant if there were any girls there. Defendant answered that there were and directed them to go to the back door. Defendant let the officers into the building at the back door and left the room. Two women were present and Sandage spoke to Toye Brown. The latter asked Sandage to step into a small adjacent room and asked him how much he wanted to spend. He indicated and handed her a ten dollar bill which had been treated with phosphorescent powder. As they started upstairs, she left him and went momentarily into an adjacent room which he described as a kitchen. They proceeded upstairs and she removed her gown. Sandage then announced that he was a police officer and placed her under arrest. Coventry remained downstairs with Pamela Johnson, and upon Sandage’s signal Coventry beckoned several waiting police officers into the building. The defendant and the two women were thereupon arrested and taken to police headquarters. The hands of Toye Brown and defendant were examined under ultraviolet light to bring out the phosphorescent glow evidencing that each had handled the treated ten dollar bill. This item was never found.

Coventry testified that he saw Toye Brown hand something to the defendant. At this time defendant was in an adjacent room described as a kitchen. Coventry testified that following the arrest, defendant expressed outrage and said that there was no evidence and no case. Sullivan, the officer in charge of the raid, testified that defendant said that they were not going to get them this time as they were not going to get the ten dollar bill back, that they had gotten the ten dollar bill from him the last time but would not get it this time.

There is, of course, no evidence that defendant compelled Toye Brown to become a prostitute. C 38, § 11-16 (a)(1). Is there evidence showing beyond a reasonable doubt that defendant arranged a situation in which a female may practice prostitution?

The “Committee Comment” prepared for this section and found in Illinois Annotated Statutes, c 38, § 11-16, discusses the offense in the following terms:

“Section 11-16 describes the activity here labelled ‘pandering,’ which involves the recruiting of persons into the practice of prostitution and with keeping practicing prostitutes in that line of endeavor. This functional classification then makes a distinction between the ‘recruiter-business manager’ and the runner or contact man (dealt with under the preceding section) and the individual who is the prostitute’s consort — the pimp.”

It is subsequently said that the emphasis of the section is directed against one who puts the prostitute in business or keeps her there. No cases are cited as to quantum or quality of evidence required under this section. We have found none.

It is shown beyond a reasonable doubt that Toye Brown and defendant handled the treated money placed into the business by Sandage. Particularly significant is that Toye Brown immediately upon receipt of the bill, arranged to deliver it to the defendant. The testimony of Sandage is that Toye Brown went into the one remaining room on the floor where defendant could be apart from the others. Coventry saw Toye Brown hand something to defendant while he was in that room. The trier of fact could reasonably infer that this was the business arrangement and that defendant was not simply a pimp, as he subsequently boasted that he had so disposed of the bill that the police would never find it. Such suggests a claim of right or interest and control in the cash flow of the business, rather than that the money paid belonged to Toye Brown. The evidence supports a conclusion that defendant filled the “business manager” aspect of pandering as now defined.

The conclusion is further supported in the record by the testimony that in his moment of outrage upon arrest, defendant stated that the police had gotten ten dollars from him the last time, but that they would not get it this time. Such gives rise to inferences of a manner and scheme of doing business. Further evidence of defendant’s management role is found in the fact that despite his testimony that he did not reside upon the premises and did not know of prostitution there, he nevertheless undertook to act as spokesman in protest of the police search of the premises for additional evidence.

The judgment of conviction is affirmed.

Affirmed.

SMITH, J., concurs.

CRAVEN, P. J.,

dissenting:

I am unable to agree with my colleagues that there is sufficient competent evidence to support a finding of guilty of the offense of pandering.

An information was filed charging the defendant with pandering in that “for money he arranged a situation in which Toye Brown, a female, did practice prostitution, . ...” A bench trial resulted in a finding of guilty in the manner and form charged in the indictment and the defendant was sentenced to the penitentiary for a term of two to five years.

Ill Rev Stats 1967, § 11-16 (a) of c 38, defines the offense of pandering in terms of one who “(1) Compels a female to become a prostitute; or (2) Arranges or offers to arrange a situation in which a female may practice prostitution.” There is no indication, nor is it urged, that the defendant compelled a female to become a prostitute.

There is no essential dispute as to the evidence. Two police officers, not in uniform and in an unmarked car, drove to an address in Decatur, Illinois. The defendant was sitting on the porch and one of the officers went up to the defendant and asked him if there were any girls there. He replied in the affirmative, told the officer to go around to the back door and further advised him to tell his “buddy” to pull the car around to the back. This was done. The two officers went to the back door and were admitted to the premises by the defendant. The defendant then left for another part of the house without further conversation with the officers. Two women were in the room. One of the officers had a conversation with one of the women, agreed to a price of $10, and gave her a $10 bill which had previously been treated with a phosphorescent material. The officer went upstairs with the woman into a bedroom. She started to undress. He placed her under arrest and notified his partner who was still downstairs. At some point the girl to whom the officer had given the $10 had a conversation with the defendant and was seen handing him something not otherwise identified. The defendant and the two girls were taken to the police station. Ultraviolet-light examination indicated that the hands of the defendant had some of the phosphorescent material on them. The money itself was not recovered, and in fact the defendant stated that it would not be recovered.

In the rewrite of the Criminal Code of 1961, criminal offenses dealing with prostitution were reclassified and section 11-16 is described in the Committee Comments as “the activity here labeled ‘pandering,’ which involves the recruiting of persons into the practice of prostitution and with keeping practicing prostitutes in that line of endeavor.” (SHA, c 38, sec 11-16, Committee Comments, p 668.) At another point in the Comments (p 669), it is stated:

“. . . the emphasis of section 11-16 is shifted away from the technique by which the panderer accomplishes his objective, to the striving to accomplish the task, namely, putting a prostitute in business, or keeping her there. . . .” (Italicized in original.)

The evidence here is not sufficient to establish that the defendant either compelled a female to become a prostitute or arranged or offered to arrange a situation in which a female may practice prostitution.

This case is not one where the determination of guilt by the trier of fact, based upon conflicting evidence or the credibility of witnesses, is such that a reviewing court will not interfere with the finding. Where, as in this case, the evidence is insufficient to establish the offense charged, it is our duty to reverse the conviction. As stated in People v. Dougard, 16 Ill2d 603, 607-608 (158 NE2d 596, 598-599 (1959)):

. . if there is not sufficient credible evidence, or if it is improbable or unsatisfactory, or not sufficient to remove all reasonable doubt of defendant’s guilt and create an abiding conviction that he is guilty, the conviction will be reversed. It is the duty of this court to resolve all facts and circumstances in evidence on the theory of innocence rather than guilt if that reasonably may be done, and where the entire record leaves us, as this one does, with grave and substantial doubt of the guilt of the defendant, we will not hesitate to reverse the judgment. People v. Sheppard, 402 Ill 347, 83 NE2d 587 (1949).”

The brief of the appellee, in argument, describes the activity of the defendant in terms that would meet the statutory definition of the offense of pandering. For example: “Defendant should be commended for his astute management of these prostitutes. He . . . provided parking facilities . . . insured the availability of two ‘girls’ . . . supplied bedroom facilities . . . required the payment of money ... [in advance].” This language may well describe conduct sufficient to convict of pandering. A reading of the record, however, does not disclose any evidence that the defendant managed prostitutes, supplied bedroom facilities, required the payment of money in advance, or insured the availability of two girls, as is argued in the brief. I would reverse the conviction.


author: CRAVEN, P. J.,

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Richard Elmore, Defendant-Appellant. Consolidated With People of the State of Illinois, Plaintiff-Appellee, v. Shirley Elmore, Defendant-Appellant.
    Gen. No. 11,181.
    Fourth District.
    August 31, 1970.
    Thomson, Thomson & Mirza, of Bloomington (James G. Walker and Chester Thomson, of counsel), for appellant.
    John G. Satter, Jr., State’s Attorney of Livingston County, of Pontiac, for appellee.
   CRAVEN, P. J.,

delivered the opinion of the court.

The defendants, Richard and Shirley Elmore, husband and wife, were convicted in a jury trial of the offense of attempted theft by deception. The sentence imposed was two years’ probation.

The defendants lived in Pontiac, Illinois, and had a home owner’s insurance policy which provided coverage for fire loss of unscheduled personal property located within their home in an amount up to $7,000. On October 23, 1967, a fire occurred in the house and a portion of the house and much of the contents were destroyed. In the course of attempted settlement of the loss claimed under the insurance policy, the Elmores completed a list of items of personal property which they claimed to have been destroyed in the fire. So far as is relevant to this appeal, they listed thereon a stereo and claimed its value to have been some $290. Other items- of personal property had been allegedly destroyed and were listed on the claim form for an indicated total loss in excess of $11,000.

The evidence is clear that the Elmores, prior to the fire, had made arrangements to sell the stereo set to some neighbors and had permitted the neighbors to take possession of the stereo, and that the stereo was, in fact, not involved in the fire.

It is argued on this appeal that the convictions should be reversed because the conduct of .the defendants charged in. the indictment and as proved at trial was not a theft nor an attempted theft. It is asserted that, under the terms of the insurance coverage, the insurance company was liable to the Elmores for fire loss of personal property up to $7,000; that the false claim for loss of the stereo could not have resulted in a theft from the insurance company because the Elmores suffered losses in excess of $11,000, irrespective of any claim for the stereo. Thus, the false claim, even if accepted by the insurance company, could not have resulted in theft, and thus that which this record establishes cannot constitute the crime of attempted theft because it was “inherently impossible” to deceive the company into paying any money for which it was not liable to pay when there exists “uncontested proof of loss” in excess of the policy limits. The defendants rely upon the case of Nemecek v. State, 72 Okla Crim 195, 114 P2d 492,135 ALR 1149 (1941).

In the Nemecek case, the Oklahoma court held that false items claimed in an inventory presented to the adjuster for an insurance company did not constitute the offense of attempting to obtain money by false pretenses in that the insured’s actual loss, without the false items, greatly exceeded the $600 policy limitation. The court observed that the prosecution should have been brought under the statute making it a crime to present a false or fraudulent claim upon an insurance contract. The Nemecek case is discussed in the annotation found at 6 ALR3d, 241. Other cases included in the annotation are more persuasive. In State v. Jaynes, 165 Ore 321, 107 P2d 528 (1940), the court affirmed a conviction of attempting to obtain money by false pretenses where the defendant misrepresented a loss so as to state a claim for over $2,000 and thereby sought to collect the $700 policy limits when the loss was not over $400. The case of Rafferty v. State, 91 Tenn 655, 16 SW 728 (1891), is to like effect.

Section 8-4 (b) of chapter 38, Ill Rev Stats 1967, provides that it shall not be a defense to a charge of attempt that because of a misapprehension of the circumstances it would have been impossible for the accused to commit the offense attempted. The Committee Comments (SHA, c 38, § 8-4 (b), p 358), make clear that this provision was intended to codify the general rule that a factual or legal impossibility is no defense to attempt.

An inherent impossibility is, of course, a defense. In this case, the evidence establishes that the defendants were or could have been under the misapprehension that they could not collect all the insurance money unless they included the stereo set, which they knew had not been destroyed by the fire. This was borne out by the testimony of the neighbor-purchaser, who testified that the defendant Richard Elmore stated that he listed the stereo set because “he didn’t think he would collect all the insurance money and could collect some on that, too.” Thus, the argument of the defendants that these convictions must be reversed because they could not obtain money from the insurance company, that it was inherently impossible, assumes a conclusion which is not established by the evidence, that is to say, that their total personal property loss was in fact in excess of $11,000.

That which the defendants did here was an act which constituted a substantial step toward the commission of the offense of theft with intent to commit that offense, and the statute does not contemplate that their misapprehension of the circumstances constitutes a defense. The judgments of the Circuit Court of Livingston County are affirmed.

Judgments affirmed.

SMITH and TRAPP, JJ., concur.