author: MORAN, J.

text:
    Arthur H. Blyzes, Plaintiff-Appellee, v. Midwest Towing Co., Inc., Defendant-Appellant.
    Gen. No. 67-104.
    Fifth District.
    March 27, 1969.
    Rehearing denied May 12,1969.

      Bradley, Eaton, Jackman & McGovern, of Chicago, Burroughs, Simpson & Burroughs, of Edwardsville (Joseph Y. McGovern and John M. Quigley, of Chicago, of counsel), for appellant.
    Sandor Korein, Cohn, Cohn & Korein, of East St. Louis, for appellee.
   MORAN, J.

Defendant appeals from a judgment of the Circuit Court of Madison County, Illinois, in favor of the plaintiff in an action to recover money damages for personal injuries.

Plaintiff was a deckhand on a towboat owned by the defendant, Midwest Towing Company, and on August 13, 1965, was working on a towboat which was in the process of tieing up two barges at St. Paul, Minnesota, when a line under strain slipped off a button and struck him on the bottom of the right foot. He suffered a fractured dislocation of the right ankle, which caused him to miss eight months of work. On September 20, 1965, he filed his complaint pursuant to the provisions of the Merchant Marine Act, 1920, 46 United States Code, section 688, commonly called the Jones Act, seeking recovery for the injury to his right foot, which was allegedly caused by defendant’s negligence. The jury returned a verdict in favor of plaintiff and assessed the damages at $150,000. The trial court denied defendant’s post-trial motion to set aside the verdict or grant a new trial and affirmed the verdict. We affirm.

Defendant first contends that the amount of the verdict is so grossly excessive that it requires a new trial or in the alternative, this court should order a substantial remittitur.

The evidence shows that the plaintiff earned $442 a month at the time of his injury and that he was unable to work for eight months and thus his lost wages were $3,536. He was 38 years of age and had a life expectancy of 33¥2 years. He has a seventh-grade education, had been working as a deckhand since 1945, and had been working for the defendant for the past seven years. A deckhand is a laborer who carries rigging weighing up to one hundred pounds, works in all kinds of weather, and is involved in activities requiring walking, climbing and jumping. Climbing and jumping are involved when going from an empty barge to a loaded barge, or vice versa. Plaintiff testified that there is a seven- to eight-foot difference in height from an empty barge to a loaded barge, and there is no other way to get from one barge to the other, except by climbing or jumping.

Immediately following the plaintiff’s injury, he was placed under the care of Donovan L. McCain, an orthopedic specialist at St. John’s Hospital in St. Paul, Minnesota. X rays taken after the accident indicated that plaintiff had a fractured dislocation of the right ankle, a fracture of the neck of the talus, a fracture of the medial malleolus, which is the inside of the ankle joint, and a portion of the tarsal bone had been driven out of the ankle joint into the back portion of the foot. The talus is the bone which separates the bones of the leg and the ankle and which articulates and allows for the motion up and down on flexion and extension of the foot. As a result of these fractures, there was a disturbance in the circulation of the blood to the foot. On August 13, 1965, plaintiff underwent surgery to reduce the fractures, wires were inserted into the ankle to hold the fractures in position and a cast was applied from the tip of the toes to the knee. On September 17, the wires were removed and x rays indicated the fractures were in the process of healing in excellent position. Before surgery was performed, the foot was a dusky color, but after the fractures had been reduced, the normal color returned. Because plaintiff wanted to return to St. Louis, he was discharged on September 20, 1965, wearing a leg cast with a walking iron and using crutches. The doctor who performed the surgery testified that while plaintiff was in the hospital he was in considerable pain and was given pain medication. He also testified that the bones which were broken in the foot and ankle are the weight-bearing bones of the ankle and have to do with flexion and extension, which are the motions used in walking.

Plaintiff returned to St. Louis and on September 21, saw a Dr. O’Reilly, an orthopedic specialist to whom he had been referred by his attorney. Dr. O’Reilly took x rays, applied a shorter cast, and gave pain pills and medication for a skin irritation which had developed beneath the cast. On October 13, 1965, plaintiff was admitted to Lutheran Hospital in St. Louis under the care of a Dr. Kuhlman, the orthopedic consultant for the United States Public Health Service in St. Louis. When plaintiff was admitted to this hospital, he was suffering from a skin infection of the right foot and leg. He was treated with steroids and the skin condition improved. X rays showed a change in the density of the main part of the talus. This indicated asceptic necrosis (death of cells that lie in the bone) which is common in this particular bone after a serious fracture. Plaintiff was discharged from the hospital on October 30,1965.

On November 29,1965, Dr. Kuhlman removed the short leg cast and advised plaintiff to begin bearing weight on his foot. Plaintiff continued to see Dr. Kuhlman and the following indicates his progress on each visit: On December 29, 1965, he was putting all his weight on his right foot; on January 28,1966, there was stiffness in the foot although he was able to squat in a deep knee-bend position; on February 28,1966, he walked with a limp and the doctor recommended a heel lift for his shoe; on March 11, the swelling was gone, but he still had some limp; on March 28, 1966, examination disclosed that he had about ten degrees up and down motion as opposed to a normal of ninety degrees, he had about five degrees inversion and eversion as opposed to a normal of fifty to seventy degrees, and he had minimal difficulties with pain. On March 28, Dr. Kuhlman released the plaintiff to return to work, testifying that whatever restoration was going to occur would have already occurred in the months since the injury. In the doctor’s opinion plaintiff had reached the point where he would have more difficulty as a result of further immobilization or disuse of the ankle than he could expect to gain by such immobilization.

After his last visit with Dr. Kuhlman in March of 1966, plaintiff did not see a doctor until August 23, 1966, when he returned to Dr. O’Reilly for an examination that revealed he had about ten degrees of upward and downward motion on his ankle as compared to a normal of forty-five degrees. X rays showed that the fracture line through the talus was healing, but that there was a nonunion in the fracture line of the medial malleolus; also, the x rays indicated some loss of cartilage between the tibia and the talus which indicates the presence of traumatic arthritis in the ankle joint. Plaintiff did not see a doctor again until March 28, 1967, when he was examined by Dr. O’Reilly shortly before the trial. X rays showed that the blood supply to the talus was being restored and that it could eventually be completely revascularized; that there was a general improvement in the blood circulation in the foot; that there was a nonunion of the fracture of the medial malleolus and a narrowing of the joint space of the ankle.

Plaintiff returned to his job as a deckhand on April 20, 1966, and worked for the defendant until the fall of 1966 when defendant shut down its operations for the winter. Plaintiff was then referred by his union to Mississippi Valley Barge Line. At Mississippi, he was required to take a physical examination by a company doctor. On cross-examination plaintiff stated that he was denied employment at Mississippi Valley because of his ankle. Plaintiff was then referred to F. S. Towing Company who hired him for twenty-one days, but they did not require a physical examination, nor did they inquire about plaintiff’s ankle. Plaintiff then returned to his regular job as a deckhand for the defendant when defendant resumed its normal operations in February of 1967. At the time of the trial plaintiff was on his regular thirty-day off-period and was scheduled to return to work for the defendant within a few days after the trial.

Dr. O’Reilly testified that until the blood supply to the talus is normal, it can collapse and become flattened and cause pain and loss of motion in the ankle joint. Both Dr. O’Reilly and Dr. Kuhlman testified that the plaintiff has a limitation of up and down motion of the foot due to the narrowing of the joint space (ten degrees as compared to ninety degrees normal) and a limitation on turning the foot in and out, due to scarring around the small bones of the foot and the joint between the talus and the heel bone (five degrees as compared to a normal of fifty-to seventy-five degrees). Both doctors also testified that the limitation of motion is a permanent and static condition. Dr. O’Reilly testified that the condition of the ankle will become worse because of the progressive changes of the traumatic arthritis; that plaintiff should not engage in employment requiring jumping, climbing and long periods on his feet; and that his pain and limp are permanent and could become worse due to arthritis. Plaintiff testified that when he resumed his regular job, he had problems in that he could not keep up with his fellow workers because of the limp, and that he has never been free of pain since the injury.

In the recent case of Grunenthal v. Long Island R. Co., 393 US 156, 21 L Ed2d 309, 89 S Ct 331, the plaintiff who sustained a severely crushed foot as a result of an accident sued the defendant under the Federal Employers’ Liability Act, 45 USC, par 51 et seq., and the jury in the District Court for the Southern District of New York awarded him $305,000. The trial court denied the railroad’s motion to set aside the award as excessive, but on appeal the Circuit Court of Appeals for the Second Circuit ordered a new trial unless the plaintiff would agree to remit $105,000 from the award.

In reversing, the United States Supreme Court pointed out that the trial judge had filed an unreported opinion in which he detailed the items of evidence which in his view were sufficient to support the jury in finding that “(1) wages lost before trial amounted to approximately $27,000 (2) loss of future wages based on petitioner’s present salary of $6,000 per annum plus likely increases over a life expectancy of 27.5 years would amount to $150,000 present value, and (3) ‘an amount approaching $150,000 (would be appropriate) for plaintiff’s pain and suffering—past and future.’ ”

In discussing the trial judge’s finding as to pain and suffering, the United States Supreme Court said:

“Since the jury’s award for the lost future earnings may properly have been as high as $150,000, its award for pain and suffering might have been as low as $128,000 rather than the $150,000 deemed permissible by the trial judge. In any event we cannot say that the trial judge’s opinion that the jury might have awarded the higher $150,000 amount is without support in the record.”

The courts of review in this state have also repeatedly held that the assessment of damages is primarily a question of fact for the jury and that an appellate court should not substitute its judgment for that of the jury’s as to the amount to be awarded in a given case. Lau v. West Towns Bus Co., 16 Ill2d 442, 158 NE2d 63; Wells v. Gulf, M. & O. R. Co., 82 Ill App2d 30, and cases cited therein.

Considering the life expectancy of the plaintiff, the rigors of his employment, and the nature and extent of his injuries, the jury could have concluded that his capacity to earn money in the future would be severely impaired and that he had suffered and would continue to suffer great pain in the future. Under the standards of our courts of review and the standard set forth in Grunenthal v. Long Island R. Co., supra, we are unable to say that the award of the jury is so grossly excessive as to require a new trial or remittitur.

Defendant next contends that the court erred in orally instructing the jury that the plaintiff had no duty to advise his coemployee of an unsafe condition which resulted in plaintiff’s injury. During cross-examination, the plaintiff was asked whether he had told the watchman on the barge about the improper placement of the line which was being used to tie up the barges. Plaintiff’s attorney objected to this question on the grounds that plaintiff did not have a duty to say anything to the watchman and that the question inferred such a duty. The court overruled this objection, but told the jury that no inference was to be drawn from any answer that it was plaintiff’s duty to advise his co-employee. Plaintiff then answered that he did not tell the watchman about the improper placement of the line. Defendant’s attorney continued with his cross-examination without raising any objection to the judge’s remarks. Unless proper and timely objection thereto has been made in the trial court, an objection based on the improper remarks of the trial judge cannot be raised on appeal. County of Cook v. Holland, 3 Ill2d 36, 119 NE2d 760; Public Service Co. v. Leatherbee, 311 Ill 505, 143 NE 97; Manning v. Kennedy, 320 Ill App 11, 49 NE2d 658.

Defendant next contends that the court erred in refusing to grant defendant’s motion for a new trial on the grounds that the verdict was based on improper, speculative and conjectural medical testimony. It is contended that the testimony of Dr. O’Reilly as to the degree of recovery and the existence of any disability was speculative and conjectural. Having examined the record, we find that defendant’s counsel did not object to such testimony or ask that it be stricken from the record of the trial court. This issue was not raised until defendant submitted his post-trial motion, which was denied. Since the defendant did not make timely objections, he has not preserved his objections for review. Department of Public Works and Buildings v. Todaro, 90 Ill App2d 245, 233 NE2d 61. A party will not be permitted to raise objections to evidence in an appellate court which were not urged in the trial court. Libbra v. Mt. Olive & Staunton Coal Co., 29 Ill App2d 396, 172 NE2d 813.

Defendant also contends that the trial court committed reversible error in giving plaintiff’s instruction No. 1 which was not in IPI and which reads as follows:

“As used in these instructions, proximate cause means any negligence on the part of the employer which plays any part, even the slightest, in producing any injury to plaintiff.”

Defendant argues that this instruction goes beyond the plain meaning of the statute and that it was argumentative and confusing. In DeLima v. Trinidad Corp., 302 F2d 585, the U. S. Court of Appeals for the Second Circuit held that it was error for the trial court to refuse an instruction in language identical to plaintiff’s instruction No. 1:

“Since the language of the requested charge was taken directly from Rogers v. Missouri Pac. R. Co., 352 US 500, 506, 77 S Ct 443, 1 L Ed2d 493 (1957), a decision which reflects the Supreme Court’s view that the Federal Employers’ Liability Act, 45 USCA Sec 51 et seq. and the Jones Act are departures from traditional common law principles, we believe the requested charge should have been given. See also Ferguson v. Moore-McCormack Lines, Inc., 352 US 521, 523, 77 S Ct 459,1 L Ed2d 515 (1957).” Ibid.

Defendant also argues that since IPI instruction No. 160.02 is recommended for use in all FELA and Jones Act cases and since this instruction was given at the request of the plaintiff, it was a violation of Illinois Supreme Court Rule 239 (a) to also give plaintiff’s instruction No. 1. IPI instruction No. 160.02 does not contain the definition of proximate cause as established by DeLima and the United States Supreme Court decisions cited therein. Therefore, the trial court did not err in giving plaintiff’s instruction No. 1, for in cases construing the FELA and the Jones Act the decisions of the United States Supreme Court must be followed. Bowman v. Illinois Cent. Railroad, 11 Ill2d 186, 142 NE2d 104.

Finally, the defendant contends that the trial court erred in giving plaintiff’s instruction No. 3 because it failed to advise the jury of the affirmative defense contained in defendant’s instruction No. 9 which reads:

“If you find that plaintiff was negligent, and you find that his negligence was the sole cause of his injury, he may not recover.”

Defendant did not make this objection to plaintiff’s instruction No. 3 during the instruction conference and therefore we will not consider it here. Saunders v. Schultz, 20 Ill2d 301, 170 NE2d 163; Onderisin v. Elgin, J. & E. Ry. Co., 20 Ill App2d 73, 155 NE2d 338. Therefore, the trial court did not err in giving plaintiff’s instruction No. 3 to the jury.

For the foregoing reasons, the judgment of the trial court is affirmed.

Judgment affirmed.

GOLDENHERSH and EBERSPACHER, JJ., concur.

       “(a) Use of IPI Instructions; Requirements of Other Instructions. Whenever Illinois Pattern Jury Instructions (IPI) contains an instruction applicable in a civil case, giving due consideration to the facts and the prevailing law, and the court determines that the jury should be instructed on the subject, the IPI instruction shall be used, unless the court determines that it does not accurately state the law. Whenever IPI does not contain an instruction on the subject on which the court determines that the jury should be instructed, the instruction given on that subject should be simple, brief, impartial and free from argument.”


source: Caselaw Access Project

author: GOLDENHERSH, P. J.

license: Public Domain

text:
    Arrow S Credit Union, a Corporation, Plaintiff-Defendant-Appellee, v. George Harrell, et al., Defendants-Intervenors-Appellants, and Swift & Company, a Corporation, Garnishee-Plaintiff.
    Gen. No. 68-79.
    Fifth District.
    April 1, 1969.
    Rehearing denied May 26,1969.

      Robert E. Wilson, Jr., of St. Louis, Missouri, for appellants.
    No brief for appellee.
   GOLDENHERSH, P. J.

This appeal is taken by a group of former employees of Swift & Company from judgments entered in garnishment proceedings in the Circuit Court of St. Clair County.

As the result of curtailment of its meat packing operations, Swift & Company, hereafter called Swift, terminated its employment contract with the employees of its plant in National City. Under the provisions of paragraph 71 of the Master Agreement covering terms and conditions of employment it paid separation allowances to certain of its employees.

Arrow S Credit Union, hereafter called Arrow S, is a credit union whose membership is comprised of Swift’s employees. The appellants, hereafter called defendants, were indebted to Arrow S. Arrow S reduced its claims to judgment and instituted nonwage garnishment actions against Swift, directed against the separation allowances. Other creditors of various employees also instituted either wage or nonwage garnishment proceedings, but the claims of these creditors have been disposed of and are not here involved.

Swift instituted an action for declaratory judgment praying that the court determine whether the separation allowances were wages, or nonwage payments, and other relief. Defendants sought and were granted leave to intervene, and that garnishment proceedings were abated pending adjudication of the declaratory judgment proceeding.

The trial court found that the separation allowances were nonwage compensation, were subject to nonwage garnishment, and no portion thereof was exempt under the provisions of chapter 62, section 73, Ill Rev Stats, that Arrow S is a judgment creditor within the meaning of the nonwage garnishment sections of the statute, and ordered Swift to answer the interrogatories filed in the garnishment proceedings. Judgments were entered for the amounts shown in the answers, defendants moved to consolidate the judgments for appeal, and this appeal followed.

Arrow S filed a motion to dismiss the appeal and the motion was taken with the case. The motion requires no discussion other than to say that it is without merit and is denied.

Arrow S has not filed any further appearance or brief in this court. As stated in Morelia v. Melrose Park Cab Co., 65 Ill App2d 175, at page 180, 212 NE2d 106, this court deplores Arrow S’s cavalier attitude in its failure to support the trial court judgment with a brief. The review of the record without assistance of counsel places an undue burden on this court, and is unfair to the trial court. We have nevertheless reviewed the record on its merits, but our decision to do so is to be interpreted neither as approval of what occurred, nor that in another case we shall again elect so to do.

In The Kroger Co. v. Blumenthal, 13 Ill2d 222, 148 NE2d 734, the Supreme Court, in construing the Unemployment Compensation Act, held that a lump-sum separation payment, although wages, did not constitute the receipt of wages “with respect to” any period subsequent to the termination of the claimant’s employment.

Chapter 62, section 73, Ill Rev Stats 1965, provides that wages are exempt in certain amounts or percentages and concludes “As used in this Section 3, ‘gross wages’ means the total compensation received for services rendered in a particular pay period prior to any deductions whatsoever.”

It is not necessary to this opinion to decide whether the separation allowances are wages, for the reason that they are clearly not wages “received for services rendered in a particular pay period,” and therefore, the statutory weekly exemptions do not apply.

For the reasons stated, the judgments of the Circuit Court of St. Clair County are affirmed.

Judgments affirmed.

MORAN and EBERSPACHER, JJ., concur.


author: MR. JUSTICE SCHWARTZ

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Theodore R. Mowen, Defendant-Appellant.
    Gen. No. 52,811.
    First District, Third Division.
    April 3, 1969.
    Rehearing denied May 9,1969.

      Schippers, Betar & Lamendella, of Chicago (David P. Schippers, of counsel), for appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Michael Stevenson, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE SCHWARTZ

delivered the opinion of the court.

Defendant was indicted on eight counts as follows: (1) involuntary manslaughter, (2) driving under the influence of intoxicating liquor, (3) failure to exercise due care for a pedestrian, (4) negligent driving, (5) driving too fast for conditions, (6) driving without a license, (7) unlawful use of a license, and (8) leaving the scene of an accident. The charge of driving too fast for conditions was nolle prossed by the State. In a jury trial the defendant was found not guilty of driving under the influence of intoxicating liquor and was found guilty of the lesser included offense of reckless homicide on the involuntary manslaughter charge. He was found guilty as charged on all the remaining counts. He was sentenced to serve one to four years in the penitentiary for reckless homicide, fined $100 for negligent driving and $100 for failure to exercise due care for a pedestrian, and sentenced to serve one year in the House of Correction for each of the following offenses: leaving the scene of an accident, unlawful use of a license and driving without a license. All the prison terms are to run concurrently. Defendant contends on appeal that he was not proven guilty of reckless homicide beyond a reasonable doubt; that the indictments for involuntary manslaughter, negligent driving and failure to exercise due care for a pedestrian were fatally defective; that the counts of the indictment were misjoined and that because of the before-mentioned errors, the entire conviction should be reversed. The facts follow.

At about 6:30 p. m. on October 15, 1965, Lynn Stodella and Martha Porter alighted from a bus at the southeast corner of Clark and Webster Streets in Chicago. They started to walk east on Webster Avenue but discovering they were going in the wrong direction, they turned and walked west. As they crossed Clark Street, they were both struck by the defendant’s car and carried approximately fifty feet on its hood. Lynn Stodella was knocked unconscious and Martha Porter was killed.

Susan Steuer, a witness for the State, testified that she was sitting at the window facing east in a restaurant on the northwest corner of Clark and Webster and saw the accident. She testified that defendant was driving north on Clark Street, that the light for Clark Street was red and that cars going south had come to a stop. Defendant drove through the light without stopping, struck the two girls crossing the street and carried them on the hood of his car across the intersection. The car swerved to the right, the girls fell off the hood on the northeast corner of the intersection, the car then swerved back to the left and continued north on Clark Street at a high rate of speed.

Thomas Hemminger testified that he heard the impact and looked up to see a car driving across Webster Avenue with the bodies of two girls on the hood. He testified that the girls fell off the hood on the north side of Webster and that the car accelerated from 15 to 30 miles an hour after striking them.

Two automobile drivers testified they observed the accident and chased defendant several blocks until a police officer stopped him and one of the drivers yelled to the policeman that defendant was a hit-and-run driver. The policeman testified that he chased defendant two blocks after he observed him leaving the intersection of Clark and Webster in a “cloud of dust”; that while pursuing defendant, the blue light on the roof of the police car was flashing and that defendant ran through a stop sign in the process of the chase. When the policeman finally stopped him, defendant produced a driver’s license which bore the name, “Richard Martin.”

Defendant testified that he had dinner with a friend in the Loop (the central business district of Chicago) and drank two beers with his meal. He then drove his friend to Clark and Division Streets and after his friend got out, he continued north on Clark Street at about 10 or 15 miles an hour. He testified that when he got to Webster Avenue the light was green and he proceeded through the intersection. He further testified that as he was going through the intersection he heard a noise and thought he had hit a car and “because of the uncertainty of my license, I did panic and started to run.” Defendant’s driver’s license had been revoked and he was using a license given to him by a friend “for an emergency.” He denied having seen anyone in the intersection.

Defendant’s first contention is that he was not proven guilty of reckless homicide beyond a reasonable doubt. He argues that to establish reckless homicide the State must prove that the defendant’s actions were reckless and wanton and of such a character as to have shown utter disregard for the safety of others. People v. Sikes, 828 Ill 64, 159 NE 293; People v. Herkless, 361 Ill 32, 196 NE 829. He contends that at worst he was proven guilty of passive negligence.

A person commits the crime of reckless homicide if he kills a person while driving a motor vehicle and the acts which cause death “are such as are likely to cause death or great bodily harm to some individual, and he performs them recklessly.” Ill Rev Stats, c 38, § 9-3 (1967). In the instant case the State adduced evidence from which the jury could have found that the defendant struck two women while running through a red light and then increased his speed in an attempt to escape while the bodies of the women were still on the hood of his car. The credibility of witnesses is a matter for the jury to determine and here the jury obviously did not believe defendant’s testimony that he was unaware that he struck the women and carried their bodies fifty feet on the hood of his car. The fact that defendant ran a red light does not of itself establish that he was acting recklessly, but when considered together with his conduct after he struck the women, it demonstrated recklessness and an utter disregard for their safety. Defendant was proven guilty of reckless homicide beyond a reasonable doubt.

Defendant’s second contention is that Counts I, III and IV are so vague and uncertain as to violate the Sixth Amendment of the Federal Constitution and Article II, Section 9, of the Illinois Constitution. The counts read as follows:

“Count I . . . Theodore Mowen committed the offense of involuntary manslaughter in that he, acting in a reckless manner, killed Martha Porter with an automobile, without lawful justification, in violation of Chapter 38, Section 9-3 (b), of the Illinois Revised Statutes, 1963.”
“Count III . . . Theodore Mowen committed the offense of failure to exercise due care for pedestrian, in that he, knowingly failed to exercise due care while driving an automobile, to avoid colliding with a pedestrian, to-wit: Martha Porter, who was upon the roadway, and failed to give warning by sounding the horn of his automobile, in violation of Section 27-257, of the Traffic Regulations of the City of Chicago.”
“Count IV . . . Theodore Mowen committed the offense of negligent driving, in that he, knowingly operated a vehicle, to-wit: an automobile, upon the public way negligently, heedlessly and without due caution, and in a manner so as to endanger one Martha Porter, in violation of Section 27-257 of the Traffic Regulations of the City of Chicago.”

The constitutional requirements are satisfied if the offense is charged with such particularity and clarity as to enable a defendant to fully prepare for his defense and to plead the judgment in bar of a subsequent prosecution for the same offense. People v. Griffin, 36 Ill2d 430, 223 NE2d 158; People v. Peters, 10 Ill2d 577, 141 NE2d 9. In the Griffin case, supra, and in People v. Green, 368 Ill 242, 13 NE2d 278, upon which defendant relies, the court held that indictments for reckless driving which were in the words of the statute and failed to specify any act were not sufficient to protect the defendant against double jeopardy. In Green, the court stated that the indictment “did not allege a single fact and there was nothing in it from which the defendant could tell definitely, or even guess what acts he my have been charged with.” In Griffin the court said (p 433) :

“Unless a defendant is advised of the particular acts relied upon to sustain a charge of reckless driving, he is not advised of the ‘nature and elements’ of the offense, and he is not afforded the full protection against double jeopardy contemplated by the constitution. For example, if a defendant drove at an excessive rate of speed, ran through three successive red lights and also drove on the wrong side of the road, and then pleaded guilty to a complaint phrased like the one now before us, his protection from subsequent prosecution for each specific offense is sufficiently dubious to contravene the purpose of section 9 of article II of the constitution.”

In the instant case Counts I and III are clearly distinguishable from the type of indictment that Green and Griffin proscribed. Both counts state a particular act relied upon to sustain the charge—namely, striking Martha Porter. That is sufficient in itself to eliminate any prospect of double jeopardy. Clearly he could have struck and killed Martha Porter only once.

Count IV however merely states that he operated an automobile “upon the public way negligently, heedlessly and without due caution, and in a manner so as to endanger one Martha Porter.” Although it specifies a particular person, it fails to specify any particular act by defendant. The fact that the indictment states that his negligence endangered Martha Porter does not inform him of the particular acts relied upon and the conviction for negligent driving under that count must be reversed.

Defendant’s third contention is that the counts of the indictment were improperly joined and the trial together on all the counts resulted in substantial prejudice to his rights. He argues that the counts of driving without a license, unlawful use of a license and leaving the scene of the accident were not related to the other charges and were only joined to inflame the minds of the jury.

The propriety of the joinder of separate offenses in separate counts of a single indictment is controlled by section 111 (4) (a) of the Criminal Code which provides:

“Two or more offenses may be charged in the same indictment, information, or complaint in a separate count for each offense if the offenses charged, whether felonies or misdemeanors or both, are based on the same act or on two or more acts which are part of the same comprehensive transaction.” Ill Rev Stats, c 38, § 111(4) (a) (1967).

In the instant case from the moment that the defendant ran through the red traffic light and struck the two women to the time he was stopped in his escape by the police officer and then produced a false driver’s license, the defendant was engaged in the same comprehensive transaction. His own testimony is “because of the uncertainty of my license, I did panic and I started to run.” The fact that he was driving with a spurious driver’s license and did not have one of his own was an integral part of the entire transaction, as was his leaving the scene of the accident. Moreover, it has long been the law that a defendant waives his right to complain that he was prejudiced by a misjoinder of counts if he fails to raise the point in a motion to quash prior to the trial. People v. Stilson, 342 Ill 158, 174 NE 45; People v. Jones, 291 Ill 52, 125 NE 711; People v. Poe, 304 Ill App 601, 26 NE2d 415. Here the defendant made no motion to dismiss or for severance and he cannot raise the point for the first time on appeal.

Defendant’s final contention is that because there was a misjoinder of counts in the indictment, the entire conviction should be reversed. This contention is rendered moot by our finding that there was no error as to the joinder of counts.

Defendant’s conviction for negligent driving is reversed and his conviction on all other counts is affirmed.

Judgment reversed in part and affirmed in part.

SULLIVAN, P. J. and DEMPSEY, J., concur.


author: TRAPP, P. J.

text:
    Cecil B. De Loian, d/b/a Jo-Del’s Restaurant, Plaintiff-Appellant, v. Illinois Liquor Control Commission, Defendant-Appellee.
    Gen. No. 52,694.
    First District.
    April 7, 1969.
    Rehearing denied May 12,1969.

      Appel, Sheridan and Siciano, of Chicago (Edward P. Sheridan, of counsel), for appellant.
    William G. Clark, Attorney General of State of Illinois, of Chicago (John J. O’Toole and A. Zola Groves, Assistant Attorneys General, of counsel), for appellee.
   TRAPP, P. J.

Upon administrative review, the Circuit Court affirmed the order of the Illinois Liquor Control Commission which revoked plaintiff’s retail liquor license. He appeals.

Complaint was made by a church that plaintiff’s retail liquor license was issued in violation of c 43, § 127, Ill Rev Stats 1965. A citation was issued by the Commission and a hearing held. The statutory language at issue is as follows:

“No license shall be issued for the sale at retail of any alcoholic liquor within 100 feet of any church, school, hospital. . . .”

The evidence and the stipulation of the parties makes clear that the boundaries of the respective real estate parcels of the church and of the plaintiff are separated by a distance of 16 feet, being the width of an alley, while the church building and the building of the licensee are measured as 105 feet apart.

The Commission considered that the issue at the hearing was whether the statutory distance of 100 feet was to be measured between the property lines of the respective parcels of land of the church and licensee, or between the buildings of said parties. Upon administrative review and upon appeal, plaintiff also urges that the Commission should be estopped to revoke the license.

Plaintiff cites no Illinois cases upon the contention that the statutory distance is to be measured between the respective buildings of the church and the licensee. The statute has been specifically construed to the contrary. In Smith v. Ballas, 335 Ill App 418, 82 NE2d 181 (1948), the court determined that the statutory distance was to be measured between the property lines of a school and of the licensed premises. In People ex rel. Cairo Turf Club v. Taylor, 2 Ill2d 160, 116 NE 880 (1954), the Supreme Court characterized Balias as holding that for purposes of the statute at issue, a “school” included the real estate. In Szcyenpniak v. License Appeal Commission, 11 Ill App2d 193, 136 NE2d 562 (1956), the circuit court reversed the order of the licensing authorities which had denied a license. The Appellate Court, however, reversed the circuit court and affirmed the finding of the License Appeal Commission that certain premises included a church, and applied the rule of Balias to church property. In 1944 and 1965, the Illinois Attorney General adopted opinions reaching the same conclusion concerning the measurement of distances between churches and licensed premises as that stated in Balias.

It appears that the Legislature has, in fact, as to other provisions in c 43, § 127, specifically provided for the measurement of distance of the licensed premises from the building of the protected institution. Such provision was included in the section at issue at the time of the opinions cited.

Plaintiff seeks to distinguish this case from Balias and Szcyenpniak in that the respective opinions characterized the licensees as taverns, whereas plaintiff operates a restaurant and liquor serving lounge. Suffice to say that the statute speaks in terms of issuing a license for the retail sale of liquor and does not consider the quality of the business.

Plaintiff seeks to invoke equitable estoppel to reverse the order of the Commission. Such doctrine requires a finding that plaintiff, acting in good faith, was induced to change his position by affirmative administrative acts so that it would be unjust to enforce the order of revocation. Estoppel may be applied to municipalities, and the expenditure of substantial sums of money are considered a sufficient change of position. Gregory v. City of Wheaton, 23 Ill2d 402, 178 NE2d 358 and Cities Service Oil Co. v. City of Des Plaines, 21 Ill2d 157,171 NE2d 605.

Plaintiff purchased the premises as vacant property in the fall of 1965. He procured a local license on December 4, 1965, and a State license was issued on December 7,1965. Construction was commenced in June, 1966. The restaurant portion of the building was not completed as of the date of the Commission hearing on November 15, 1966, although the liquor serving portion of the premises was in business. Counsel assert that $500,000 was expended upon the premises, but such is not otherwise shown in the record.

There is testimony in the record that in September, 1965, the pastor of the complaining church orally advised plaintiff that there was objection to the issuance of a liquor license. On November 9, 1965, plaintiff employed an attorney to write to the Commission. The letter stated that a local license would be issued by the Mayor of Dolton and made inquiry whether the State license would then be issued. Such letter stated that the church building and the proposed restaurant lounge were more than 100 feet apart and, despite the fact that the simple research would discover the authorities heretofore cited, asserted that there would be no violation of the statute at issue. No reply is in the record.

The record contains a letter dated December 2, 1965, written by counsel for the complaining church to the Mayor of Dolton, who served ex-officio as “local liquor control commissioner.” This letter set forth the authorities heretofore noted and claimed a violation of the statute.

Incident to procuring a State license, plaintiff submitted verified answers to questions contained in a form of application. Included among the questions was the following:

“Is this business located within 100 feet measured from nearest property lines of any church, school, hospital? . . .”

Plaintiff’s answer to such question was “No.”

It is the position of the Commission that it is required to issue a State license when a local license has been issued, and that it is not authorized to pass upon qualifications of an applicant. Retail Liquor Dealers Ass’n v. Fleck, 408 Ill 219, 96 NE2d 556. Ill Rev Stats 1965, c 43, § 109, provides in part:

“When such person has obtained a local license and has made application to the State Commission in conformity with this Act and paid the license fee provided, it shall be the duty of the State Commission to issue a retailer’s license to him; . . . and, provided further, that the issuance of such license shall not prejudice the State Commission’s action in subsequently suspending or revoking such license if it is determined by the State Commission, upon notice and after hearing, that the licensee has, within the same or the preceding license period, violated any provision of this Act. . . .” (Emphasis supplied.)

The Supreme Court has stated that the statute amended to include the quoted language places original jurisdiction in the Commission to revoke retail licenses. Pliakos v. Liquor Control Com., 11 Ill2d 456, 143 NE2d 47.

No authority has been cited which suggests that the Commission is to be estopped from exercising its jurisdiction by reason of the act of the local liquor commissioner.

The record does not support a conclusion that equitable considerations require reversal of the order of the Commission. Plaintiff’s attorney, by letter to the Commission, asserted that there would be no violation of the statute, and plaintiff’s application made a point blank assertion that as measured between property lines, the licensed premise was not within 100 feet of a church or school. His attempted explanation that he believed “property lines” meant buildings, is such a perverse reading of plain words as to require no discussion.

The record does not support an argument that plaintiff, acting in good faith, was induced to believe that there was no violation of the law. As stated in Cities Service Oil Co. v. City of Des Plaines, 21 Ill2d 157, 171 NE2d 605, if one is aware of a statute, or if he makes no attempt to ascertain it, the issuance of a license does not create an estoppel. Nothing in the record before us suggests that .plaintiff made a good faith attempt to ascertain a correct interpretation of the statute.

The judgment of the circuit court is affirmed.

Affirmed.

CRAVEN and SMITH, JJ., concur.


author: STOUDER, P. J.

text:
    Field Enterprises Educational Corporation, a Delaware Corporation, Plaintiff-Appellee, v. Village of Wheeling, a Municipal Corporation, A. R. McIntyre, and Marvin Horcher, Defendants-Appellants.
    Gen. No. 52,861.
    First District.
    April 7, 1969.
    Rehearing denied May 9,1969.

      Paul E. Hamer, of Northbrook, for appellants.
    Robert B. Wilcox, Peter A. Tomel, and James E. Knox, Jr., of Chicago (Isham, Lincoln & Beale, of counsel), for appellee.
   STOUDER, P. J.

This is an appeal from a decree of the Circuit Court of Cook County holding that certain ordinances of the Village of Wheeling, Defendant-Appellant, were invalid as applied to the activities of Field Enterprises Educational Corporation, Plaintiff-Appellee.

On February 14, 1964, a representative of plaintiff company was stopped on the complaint of a resident of defendant for soliciting without a license in violation of defendant’s ordinance number 537. Ordinance number 537 provided for the registration of all persons soliciting door-to-door within the Village of Wheeling and defined solicitors as being transient merchants or vendors or “any person soliciting orders for the sale of any articles or things in the Village of Wheeling to be delivered in the future.” The ordinance further specifically provided the information to be furnished in an application for a permit and for a fee for the issuance of the permit. Plaintiffs’ representative was soliciting orders for encyclopedias.

Subsequent to February 14, 1964, plaintiffs’ representative was registered and fingerprinted, paid the necessary fees and continued his solicitations for a period of fourteen or fifteen days.

On June 15,1964, Defendant Village enacted Ordinance number 776 declaring the practice of going upon private residences within the Village by solicitors, peddlers, hawkers, itinerant merchants or transient vendors of merchandise to solicit orders for the sale of goods without a prior invitation from the owner, to be a nuisance punishable as a misdemeanor. Ordinance number 776 contained no provision for registration, licensing or obtaining a permit.

On June 15, 1964, Defendant Village enacted Ordinance number 782 prohibiting any person from entering any private premises without the consent of the owner.

On June 18, 1964, Plaintiff filed a complaint seeking a declaration of rights under Ordinance number 776. The Village filed its answer and counterclaim to which Plaintiff filed an answer. Upon Plaintiff’s motion for summary judgment, motion to dismiss and motion to strike certain affidavits filed by the Village, the entire matter was referred to a Master in Chancery. Amended pleadings were filed including Ordinances number 537 and number 782 and on the Master’s recommendation, the trial court decreed the ordinances to be null and void and issued an injunction against Defendant. From these orders this appeal was taken to the Supreme Court and transferred by the Supreme Court to this Court on the grounds that the Supreme Court had no jurisdiction on direct appeal.

The decree of the trial court was based on its finding of lack of statutory authority on the part of the Village to enact the ordinances in question and also contained a finding that the ordinances violated both State and Federal Constitutions. A considerable portion of Appellant’s argument is directed to the constitutional questions. However, if the finding of the trial court as to lack of statutory authority is correct, it is not necessary to decide the constitutional questions.

Our Supreme Court has held since its decision in Emmons v. City of Lewistown, 132 Ill 380, 24 NE 58 (decided in 1890) that the statutory power granted to municipalities to “license, tax regulate or prohibit hawkers, peddlers, pawnbrokers, itinerant merchants, transient vendors of merchandise . . .” does not extend to the regulation of persons selling books, periodicals or other publications. (See Village of South Holland v. Stein, 373 Ill 472, 26 NE2d 868.) The Supreme Court has further held that the legislature has acquiesced in this holding for a long period of time and that any change must come by statute. Osborn v. Village of River Forest, 21 Ill2d 246, 171 NE2d 579. In view of these holdings and in the absence of any statutory change or judicial authority, we must hold in the instant case that Defendant was without authority to enforce the ordinances in question in so far as they applied to Plaintiff.

Defendant acknowledges the above cases but argues that the effect of the decisions has been altered by the decision of the U. S. Supreme Court in Breard v. Alexandria, 341 US 622. The Breard case dealt only with the question of the constitutionality of the ordinance involved and has no effect upon the decisions of our Supreme Court concerning statutory authority. We are unable to find any change which allows this Court to differ from the prior holdings.

The decree of the trial court is therefore affirmed.

Decree affirmed.

ALLOY and SCHEINEMAN, JJ., concur.


author: PRESIDING JUSTICE GOLDENHERSH.

text:
    Harold A. Witherby, Margaret Witherby, and Tony Heine, Plaintiffs-Appellants, v. Danny Ray Bierman, a Minor, by His Father and Next Friend, Ralph Bierman, and Ralph Bierman, Defendants-Appellees.
    Gen. No. 68-32.
    Fifth District.
    April 9, 1969.

      Judgment affirmed.
    Paul M. Storment, Jr., of Wagner, Conner, Ferguson, Bertrand & Baker, of Belleville, for appellants; Oehmke, Dunham, Boman & Leskera, of East St. Louis (John W. Leskera, of counsel), for appellees.
   Opinion by

PRESIDING JUSTICE GOLDENHERSH.

Not to be published in fulL


author: EBERSPACHER, J. MORAN, J.,

text:
    People of the State of Illinois, Appellee, v. David T. Garner, Defendant-Appellant.
    Gen. No. 68-11.
    Fifth District.
    April 8, 1969.

      Karl D. Dexheimer, of Pope & Driemeyer, of East St. Louis, for appellant.
    Robert H. Rice, State’s Attorney, of Belleville, for appellee.
   EBERSPACHER, J.

This is an appeal from the Circuit Court of St. Clair County from a judgment entered upon a jury verdict finding the defendant, David T. Garner, guilty of the offense of illegal possession of a narcotic drug.

It appears from the record that on the evening of January 20, 1967, the defendant was arrested in an apartment that he occupied in East St. Louis, Illinois, by three narcotic agents for the State of Illinois and an Assistant State’s Attorney of St. Clair County, Illinois. The arresting agents had in their possession at the time of the arrest a warrant for the arrest of the defendant, the validity of which is not questioned on this appeal.

The agents were admitted to the apartment by the defendant’s stepdaughter. The defendant’s wife arrived at the apartment shortly after the arrest of the defendant. The apartment consisted of a living room, two bedrooms and a kitchen. The defendant was located in the front bedroom where he was found dressed only in his underwear. The narcotic agents testified that the defendant was advised of his constitutional rights at the time of the arrest, and that they then proceeded with a “search incidental to the arrest.” The defendant’s clothing was first searched and then a chest of drawers in a corner of the room was searched. Other than the bed, the chest was the only other article of furniture in the room. In the top drawer of the chest of drawers one of the agents found a small aluminum foil package and two paper match boxes containing a grayish-green plant which subsequent analysis revealed to be marijuana. One of the agents then testified over repeated objection that he presented the tinfoil package to the defendant and said: “Do you know what this is?”; that the defendant replied: “Yes, it is pot,” and that the agent then asked him: “Is it yours?,” and that the defendant admitted after a short space of time that it was his. The agent further testified that the defendant appeared to be under the influence of alcohol or a drug at the time of the arrest.

The defendant, testifying in his own defense, denied making this confession. The defendant also presented testimony through his wife that other persons, including herself and another man, frequently used this particular drawer of the chest to store their belongings. She further testified that some of the contents of the drawer belonged to her former husband, now deceased, and her children likewise used the chest of drawers.

The defendant alleges in his effort to reverse the judgment that: (a) the indictment was defective in that it failed to set forth the elements of the offense charged and failed to cite the exact statutory provision alleged to have been violated; (b) that the trial court erred in admitting the oral confession without first conducting a preliminary hearing; (c) that the court erred in admitting the evidence obtained as a result of the search and seizure; and (d) that the State failed to sustain their burden of proving that the defendant was in possession of the drug within the meaning of the statute.

The gist of the defendant’s first allegation of error is that the indictment is fatally defective in that it fails to set forth the nature and elements of the offense charged, fails to set forth the element of knowledge and fails to cite the correct statutory provision.

We note that the indictment is drafted in the language of the statute. It has repeatedly been held that an indictment which charges an offense in the language of the statute is sufficient when the words of the statute so far particularize the offense that by their use alone an accused is apprised with reasonable certainty of the precise offense with which he is charged. People v. Bussie, 41 Ill2d 316, 243 NE2d 196; People v. Patrick, 38 Ill2d 255, 230 NE2d 243 (1967); People v. Gold, 38 Ill2d 510, 233 NE2d 702 (1967); People v. Mills, 40 Ill2d 4, 237 NE2d 697 (1968). We believe that the indictment meets this test. The indictment alleged “. . . illegal possession of a narcotic drug, to wit: Marijuana. . . .” There is nothing complicated about the offense; the words of the statute particularize the offense. We have no doubt that the indictment was sufficiently clear to enable him to prepare a defense.

The defendant’s second point, attacking the indictment, is that the necessary element of knowledge is not set forth. In the recent case of People v. Mills, 40 Ill2d 4, 237 NE2d 697 (1968), the Court held, in reply to the same argument:

“Accordingly we find that the defendant must be held chargeable with notice that the term ‘possession’ used in the indictment implicitly meant knowing possession, and therefore we hold that the indictment returned against Mills was valid, although it did not expressly allege that he had knowledge of the narcotics found within his control.”

See also People v. Bussie, supra.

The third point concerning the indictment raised by the defendant is that the wrong statutory provision is cited in the indictment. The defendant argues that section 22-3 of chapter 38 should have been cited, rather than section 22-40, as is cited in the indictment.

We note that article 22 of the Criminal Code (c 38, Ill Rev Stats), pertains to the Uniform Narcotic Drug Act; that section 22-3, which is a portion of that Act, is the violation section; and that section 22-40 is the penalty section. We further note that the penalties set forth in section 22-40 encompass the violations set forth in section 22-3, and that these violations are based upon definitions found elsewhere in the article, in this case, section 22-2-17(3), which is the definition for the substance commonly known as marijuana. We can hardly see how the defendant was prejudiced so long as the indictment focused his attention on the Uniform Narcotic Drug Act, and in this case the penalty section.

It has also been held that where the indictment adequately informs the accused of the nature and elements of the charge against him, failure to cite the proper statutory provision alleged to have been violated is not a basis for dismissal or for an arrest of judgment. People v. Patrick, supra.

The defendant next contends that the trial court erred when it admitted the confession in evidence without a preliminary hearing. The People contend, on the other hand, that the defendant filed no pretrial motion to produce either a written or oral confession, and filed no demand for a list of witnesses. However, it appears that there may have been an understanding for the waiving of such pretrial motions between the office of the State’s Attorney and that of the Public Defender. The People further candidly admit that they were unaware of the existence of a confession until the testimony of the agent during the trial. Upon the testimony of the agent, as to the alleged confession, the defendant immediately objected, moved that the confession be stricken and asked for a mistrial, all of which were overruled by the Court. The defendant also raised the objection at the close of the People’s evidence on the ground that he had not been accorded a preliminary hearing as to the voluntary nature of the confession, and on further ground that the confession was not supported by all the witnesses who were present, at the time that the alleged confession was made. These objections were also overruled by the Court.

A confession to which no objection is made is properly admitted in evidence without the introduction of preliminary proof. People v. Jackson, 31 Ill2d 408, 202 NE2d 465 (1964); People v. Malin, 372 Ill 422, 24 NE2d (1939). However, if an objection is made, it is the duty of the Court to hear such evidence as the parties may present concerning the circumstances under which the confession was made. People v. Jackson, supra. In People v. Jolliff, 31 Ill2d 462 at 466, 202 NE2d 506 at 508, the Supreme Court said:

“It is settled that a defendant who objects to the admission of a confession is entitled to a fair hearing in which the voluntariness of his confession is actually and reliably determined. (Jackson v. Denno, 378 US 368, 12 L Ed2d 908, 84 S Ct 1774, 1783.) The defendant’s oral statement in which he admitted the crime charged in the indictment was such a confession. When counsel for the defendant promptly raised the issue of the voluntary nature of the confession it became the duty of the court to hold a hearing out of the presence of the jury to determine that issue. The Court’s denial of the request for such a hearing was prejudicial error. Because of this error the judgment of conviction must be reversed and the cause remanded for a new trial.”

Since defendant’s denial of making the confession came after the determination of its voluntary nature should have been made, and the confession had been heard by the jury, his denial of it cannot be said to rectify the lack of the necessary determination.

Under the circumstances of this case the defendant’s objection to the admission of the confession was sufficient to call for a hearing, out of the presence of the jury, on the voluntariness of the confession. People v. Thigpen, 33 Ill2d 595, 213 NE2d 534. The failure to conduct a hearing on the admissibility does not, however, require reversal of the judgment on the conviction. People v. Jolliff, supra; People v. Jackson, supra; see also Jackson v. Denno, 12 L Ed2d 908, 84 S Ct 1774; People v. Strader, 38 Ill2d 93, 230 NE2d 569; People v. Thigpen, supra.

Only one of the 4 officers present at the premises at the time the alleged confession was made testified concerning it. Their failure to do so is not explained although the witness who testified with reference to the confession testified that the other two narcotics agents “inspectors” and the Assistant State’s Attorney were present when the conversation took place. We find relevant language in People v. Prohaska, 8 Ill2d 579, 585, 134 NE2d 799, 802, where the Court said:

“We have held that all of the witnesses to the confession or those taking part in obtaining it must be produced or their absence explained. The burden is upon the State to show the confession is voluntary.”

and in People v. French, 33 Ill2d 146, 149, 210 NE2d 540, page 542:

“Where a claim of involuntariness is interposed, the prosecution must produce at the trial all persons connected with the taking of the confession or satisfactorily explain their absence. (People v. Dale, 20 Ill2d 532; People v. Jennings, 11 Ill2d 610).”

The defendant next contends that the trial court erred in admitting the result of the search and seizure. The defendant does not challenge the validity of the warrant for arrest, nor the authority of the arresting agent to make a search, incidental to that arrest, of such person’s immediate presence. The defendant argues, however, that the arresting agents exceeded the bounds of legitimate search when they searched the chest of drawers in the bedroom where the defendant was arrested.

It is clear that an officer making a lawful arrest has the right, not only to search a person arrested, but also the area within his immediate control. People v. Harvey, 27 Ill2d 282, 189 NE2d 320 (1963). In defining the outer boundaries of a person’s immediate presence and control for a search incidental to arrest, our Supreme Court has allowed a search of the premises even though the defendant was arrested outside but immediately adjacent to the dwelling area. People v. Tillman, 1 Ill 2d 525, 116 NE2d 344 (1954); People v. Boozer, 12 Ill2d 184, 145 NE2d 619 (1957); People v. McGowan, 415 Ill 375, 114 NE2d 407 (1953). This view is, likewise, in accordance with the view of the United States Supreme Court. United States v. Rabinowitz, 339 US 46, 94 L Ed 653. We find that the search by the arresting agent was within these prescribed limits.

The last argument of the defendant is that the People failed to sustain its burden of proof that the defendant was in possession of the contraband within the meaning of the statute. We have no quarrel with the defendant’s assertion that possession together with knowledge of the fact of such possession are essential elements in the criminal offense of illegal possession of narcotics. People v. Jackson, 23 Ill2d 360, 178 NE2d 320 (1961). The strongest evidence of the defendant’s knowledge of the possession of the marijuana consists of his alleged confession to the arresting agent, however, the circumstantial evidence of knowledge of possession presented here would be a sufficient basis on which to sustain a jury’s finding that defendant knowingly possessed, but we have no way of knowing what their determination would have been had the confession not been in evidence. If the alleged confession is found to be voluntary and admissible, the jury had more than adequate evidence to find that the defendant had possession within the meaning of the statute, even in light of the defendant’s denial of such knowledge at the trial.

Accordingly, the cause must be remanded for a hearing on the voluntariness of the confession. If the confession is found to be involuntary, the trial court will vacate the judgment of conviction and grant the defendant a new trial; otherwise, the trial court will enter a new judgment of conviction.

The efforts of appointed counsel in effectively presenting this matter are commended and appreciated.

Cause remanded with directions.

GOLDENHERSH, J., concurs.

MORAN, J.,

dissenting:

In my opinion this case should be remanded for a new trial because the record discloses that the defendant did not waive his right to counsel prior to the time he made the statement he was supposed to have made. People v. Braun, 98 Ill App2d 5, 241 NE2d 25; Miranda v. Arizona, 384 US 436,16 L Ed 694, 86 S Ct 1602.


text:
    Radio Corporation of America, a Delaware Corporation, Plaintiff-Appellant, v. Charles M. Smith, Doing Business as Charles M. Smith Truck Service, Defendant-Appellee.
    Gen. No. 68-15.
    Fifth District.
    April 8, 1969.
    William E. Aulgur, of Eldorado, for appellant; Joseph W. Hickman, of Benton, for appellee.
   Opinion by

JUSTICE EBERSPACHER.

Not to be published in full.


author: GOLDENHEESH, P. J.

text:
    William Theofanopoulos and Sofia Theofanopoulos, Plaintiffs-Appellees, v. Harold Liddell, et al., Defendants, and Noel Smith and Sherwood Land Company, a Corporation, Garnishees-Appellants.
    Gen. No. 68—86.
    Fifth District.
    April 9, 1969.
    Rehearing denied May 26,1969.

      Kern and Pearce, of Carmi, and Wham and Wham, of Centralia, for appellants.
    Marshall, Feiger, Robison & Quindry, and Cochran & Harrison, of Fairfield, for appellees.
   GOLDENHEESH, P. J.

Defendants, Noel Smith, hereafter called Smith, and Sherwood Land Company, a corporation, hereafter called Sherwood, appeal from a Garnishment Judgment entered in the Circuit Court of Wayne County.

Plaintiffs obtained and this court affirmed, a judgment against Harold Liddell, hereafter called Liddell, in the amount of $15,640 (Theofanopoulos v. Liddell, 44 Ill App2d 416, 194 NE2d 678). Liddell was engaged in litigation against Smith and Sherwood (Liddell v. Smith, 41 Ill App2d 408, 191 NE2d 260; Liddell v. Smith, 43 Ill App 2d 57, 193 NE2d 45; Liddell v. Smith, 345 F2d 491; Liddell v. Smith, 65 Ill App2d 295, 213 NE2d 599; Liddell v. Smith, 65 Ill App2d 352, 213 NE2d 604) which extended over a period of several years.

On December 7, 1962, plaintiffs filed an affidavit for garnishment and on that date garnishment summons was issued directed to Sherwood, and on March 5, 1963, garnishment summons was issued directed to Smith. In its answer to the garnishment interrogatories Sherwood stated that at the time of the service of the garnishment summons it was not indebted to Liddell, and had no property of his in its possession. Smith answered that he had in his possession a certificate evidencing Liddell’s ownership of 150 shares of the capital stock of Sherwood which Smith claimed was pledged to secure a debt due him from Liddell, that there was litigation pending in which Liddell claimed Smith was indebted to him, and Smith denied such indebtedness.

Plaintiffs brought a citation against Smith, and in response to the writ he produced the certificate for Sherwood shares. The court ordered the stock sold, a sale was advertised, but at plaintiffs’ direction the sale was canceled and the execution withdrawn. The certificate was deposited with the Clerk of the Circuit Court of Wayne County where it remained until February 10,1967.

In a decree entered on April 20, 1963, Liddell was awarded a judgment against Sherwood in the amount of $14,650 and a judgment against Smith in the amount of $3,000. On April 23, 1963, Smith and Sherwood filed amended answers to the garnishment interrogatories setting forth the entry of the judgments. Subsequently this court affirmed the judgment against Sherwood and reversed the judgment against Smith (65 Ill App2d 295, 213 NE2d 599).

Shortly after the amended answers were filed, Liddell’s attorneys, a bank, and three individuals, filed interpleas claiming assignments to them of Liddell’s judgment against Sherwood.

On February 10, 1967, the circuit court entered a “Decree upon Settlement” purporting to dispose of the matters involved in the appeals above enumerated. At that time the attorneys, the bank and the individual creditors withdrew their interpleas.

On April 11,1967, Smith and Sherwood filed an amended and supplemental answer to the interrogatories in garnishment, in which they stated that at the time of the service of the garnishment summons Smith held the above described stock certificate; it was delivered to the sheriff in compliance with a citation; a levy was made and a sale thereof advertised; the sale was canceled and the execution withdrawn; the certificate was delivered to the Clerk of the Circuit Court of Wayne County who retained it until it was delivered to Smith pursuant to an order entered on February 10, 1967, upon settlement of the issues between Liddell and the garnishees; Harold Liddell being indebted to Clyde Liddell assigned the certificate to Clyde Liddell, who, on April 7, 1966, assigned it to Smith; on October 15, 1962, Harold Liddell assigned to Fairfield National Bank $15,000 of his recovery; this and three other assignments are of record; the sum of the amounts assigned was $19,650.12, being in excess of Liddell’s judgment against Sherwood; on February 10, 1967, Smith paid $14,650, the amount of Liddell’s judgment against Sherwood for the benefit of Liddell and the assignees, and their interpleas were withdrawn and their claims released; in October 1962, Harold Liddell assigned to Clyde Liddell $26,000 of any recovery against Smith or Sherwood.

Plaintiffs filed a traverse to the answer denying the material allegations therein contained.

The issues were tried to the circuit court on the amended and supplemental answer, and the traverse. Smith was the only witness, and his testimony and the exhibits received in evidence show that Smith paid $35,000 to Liddell’s attorneys, who for that sum obtained releases from Liddell’s assignees, and released their claim for fees. He also entered into an agreement with Clyde Lid-dell, and paid him a sum of money for an assignment of the Sherwood stock. Judgment was entered in favor of plaintiffs and against both garnishee-defendants in the amount of $19,730.48 and costs, and the court ordered that in the event the judgment be not paid within 30 days, the stock certificate be delivered to the sheriff and sold, the proceeds of the sale to be used to satisfy the judgment and costs.

As one of the grounds for reversal, defendants argue that at the time of service of the garnishment summons it was not certain that Liddell would obtain a judgment, an indebtedness is not subject to garnishment unless at the time for filing an asnwer it is in existence and either due, or to become due subsequently, and not subject to any contingency.

Chapter 62, section 43, Ill Rev Stats 1967, provides that the provisions of the Civil Practice Act apply to proceedings under the Garnishment Act except as otherwise expressly provided. Although section 43 of the Garnishment Act provides that the answer of the garnishee is considered denied without further pleading, the issues on which this case was tried are formed by the amended and supplemental answer and the traverse. We are not confronted with the question of whether Sherwood was entitled to a discharge at the time of its original answer for the reason that no trial was had on the issues as presented at that time, no discharge was requested, and so far as the record reflects, the amended answer and the amended and supplemental answer were filed voluntarily, and not in compliance with any order of the court. Insofar as Smith is concerned, his answer showed possession of the stock certificate and no basis for discharge appears of record. At the time of trial there was an indebtedness due from Sherwood in the form of a judgment, and the indebtedness was not contingent or unliquidated.

Since the amended and supplemental answer shows a judgment in favor of Liddell and against Sherwood, and possession by Smith of a stock certificate standing in Liddell’s name, the burden of proof is upon the garnishee-defendants to establish by a preponderance of the evidence the various affirmative defenses raised in their pleadings. Penn v. Progressive General Ins. Co., 74 Ill App2d 32,219 NE2d 857.

The rule that the findings of a trial judge who hears a case without a jury will not be disturbed unless manifestly erroneous (People ex rel. Penrod v. Chicago & N. W. Ry. Co., 17 Ill2d 307, 161 NE2d 126) is applicable to a garnishment proceeding. From our review of the evidence we cannot say that the trial court’s findings are erroneous insofar as it found the judgment against Sherwood and the shares of Sherwood stock to be subject to plaintiffs’ garnishment.

Citing LaSalle Opera House Co. v. LaSalle Amusement Co., 289 Ill 194, 124 NE 454, Lobstein v. Lehn, 120 Ill 549, 12 NE 68, and Phelps v. Curts, 80 Ill 109, defendants argue that because the evidence shows that the payment made by Smith was used to discharge the claims based upon the assignments of the judgment, Smith is subrogated to the rights of the assignees. We do not quarrel with the abstract statement of law but the record shows that at the time of trial the claims of the assignees were withdrawn, no assignment to Smith is shown by the record, and assuming, arguendo, that Smith is subrogated to the claims by reason of the payment, the evidence does not show the claims of the assignees to be superior to that of the garnishers. We have considered defendants’ argument with respect to whose duty it was to notify the third-party claimants of the proceedings, and point out that the third-party claims were withdrawn, and if defendants wished to sustain their affirmative defense that the claims paid were superior to that of the garnishers it was incumbent upon them to produce the evidence in support of their contentions.

The evidence shows that there was no indebtedness subject to garnishment due from Smith to Liddell. The judgment against Smith was reversed, and the payment of $35,000 paid to dispose of the litigation, no part of which was paid to Liddell, was not an indebtedness subject to garnishment. A debt, to fall within the purview of the Garnishment Act must be due without contingency and represent a liquidated or readily ascertainable sum. Powell v. Prudence Mut. Cas. Co., 88 Ill App2d 343, 348, 232 NE2d 155. Liddell’s claim against Smith does not meet those requirements. The money judgment against Smith must, therefore, be reversed.

The matter of the stock certificate, however, presents a different situation. The certificate, prima facie, showed ownership by Harold Liddell and the claims of Smith that it was pledged, and of Clyde Liddell that it was owned by him, raised fact issues for the trial court. We must assume that the judgment is based on findings adverse to Smith’s claims, and the evidence does not warrant reversal.

Section 18 of the Garnishment Act (c 62, § 50) vests the trial court with equitable powers and the judgment order for delivery and sale of the certificate falls within its purview. We have examined the authorities cited by defendants and do not find that they support the contention that in canceling the execution sale plaintiffs removed the shares from the garnishment. It is true that a sale under a writ of execution would have required the issuance of another writ, but there was no discharge from the garnishment. The certificate remained in the possession of the clerk of the circuit court and the priority of the claims adverse to that of plaintiffs was an issue for the trial court. The court erred in entering a money judgment against Smith but did not err in ordering the surrender of the certificate.

Although plaintiffs’ recovery from Sherwood is limited to the amount of its indebtedness to Liddell, the shares of Sherwood standing in Liddell’s name are subject to garnishment to the extent necessary to satisfy plaintiffs’ judgment against Liddell in the full amount thereof, plus interest and costs.

For the reasons herein stated the judgment of the Circuit Court of Wayne County entered in favor of plaintiffs and against Sherwood Land Company is affirmed, and is remanded with directions to the trial court to vacate the judgment as entered, and enter judgment in favor of plaintiffs and against Sherwood Land Company in an amount equal to $14,650 plus interest at the statutory rate from the date of the entry of the judgment entered in favor of Harold Liddell against Sherwood Land Company. The money judgment entered against Noel Smith individually is reversed. The judgment against Noel Smith for surrender and sale of Certificate #2 for 150 shares of Sherwood Land Company is affirmed, and the cause is remanded to the Circuit Court of Wayne County for such further proceedings as are necessary to effectuate this portion of the judgment.

Judgment affirmed in part, reversed in part and remanded with directions.

MORAN and EBERSPACHER, JJ., concur.


author: EBERSPACHER, J.

text:
    Lucien C. McKinney, Plaintiff-Appellant, v. Hougland Towing Company, Defendant-Appellee.
    Gen. No. 68-74.
    Fifth District.
    April 24, 1969.
    Sandor Korein, Cohn, Cohn and Korein, of East St. Louis, for appellant.
    Gordon Burroughs, Burroughs, Simpson & Burroughs, of Edwardsville, Emerson Baetz, of Alton (McCreary, Hinslea, Ray & Robinson, of Chicago, of counsel), for appellee.
   EBERSPACHER, J.

This is an appeal from an order dismissing plaintiff’s case, filed under the Jones Act (46 USC 688 et seq.), on ground of forum non conveniens.

In January 1967, plaintiff filed his suit in the Circuit Court of Madison County seeking money damages for personal injuries received by him while employed by defendant on the motor vessel Warren Hougland while it was afloat on the Ohio River. Plaintiff alleged defendant was negligent and its vessel unseaworthy. He alleged the defendant operated on the navigable inland waters of the United States and frequently did business in Madison County, and demanded a jury trial. Subsequently plaintiff’s attorney, a resident of the adjoining county of St. Clair, sought by motion mailed to the Clerk, to amend the complaint to correct the name of defendant, sending the copy of the covering letter, with a copy of the motion to defendant’s Chicago attorney. The amendment was allowed and made by interlineation and the Clerk was ordered to send copies of the order to the attorneys.

Before there was any service on defendant, on July 6, the motion to dismiss was filed on behalf of defendant, which motion was verified as to both allegations of fact and allegations based on information and belief by a member of the bar resident in Madison County, and which requested oral argument of the motion. An unverified answer to the motion was filed, and on July 14 the motion was called for hearing and argued before an Associate Circuit Judge, who took the matter under consideration and granted defendant leave to amend its motion. Thereafter, the court ordered the case set for jury trial on June 17, 1968. No amendment to the motion was ever filed and no additional hearing was ever had on the motion, and on May 7 the motion was allowed and the case dismissed.

Plaintiff seeks reversal on the basis of an abuse of judicial discretion, and defendant contends that there is here a total failure to demonstrate any abuse of discretion.

Cotton v. Louisville & N. R. Co., 14 Ill2d 144, 152 NE2d 385, as limited in People ex rel. Chesapeake & Ohio R. Co. v. Donovan, 30 Ill2d 178, 195 NE2d 634, controls the application of forum non conveniens to Federal Employer Liability Act cases in Illinois. Since that Act and the Jones Act, both Federal in origin, have special venue provisions which allow a plaintiff to select his forum, the same venue provisions as are applied in FELA apply here and Cotton, as modified, is here applicable. Pure Oil Co. v. Suarez, 364 US 202, 86 S Ct 1394. The doctrine of forum non conveniens applies under both Acts. Cotton, supra. And a court has a narrower discretion in considering such motion than exists in the U. S. District Courts under the change of venue provisions provided by US Code, Title 28, § 1404(2), Norwood v. Kirkpatrick, 349 US 29, 75 S Ct 544. Our Courts have recognized that the venue provision of the Act gives the plaintiff a right which cannot be overcome by mere balance of convenience. Cotton, supra, at 174; Giseburt v. Chicago B. & Q. R. Co., 45 Ill App2d 262,195 NE2d 746.

In Cotton, our Court held defendant’s motion was clearly insufficient; that it was too general, and the names of the witnesses and the proofs proposed to be adduced were not particularized (Cotton, supra, at 166-168), and even the dissent agreed that defendant’s motion should have stated with more particularity what testimony was expected from the nonresident witnesses, even though, for tactical reasons, it may have been reluctant to do so. (Cotton, supra, 176-177.) In Cotton, the Court, on the question of the adequacy of the motion, relied in part on General Portland Cement Co. v. Perry (CCA 7th), 204 F2d 316, in which the Court denied a motion to transfer from the U. S. District Court, in Chicago to the District Court in Dallas, on the ground that defendant failed in its burden of proof in that it failed to give the names of its witnesses, to indicate what their testimony would be, to show how vital that testimony would be to the defense, and to show why depositions could not be used. In that case the motion was under USC Title 28, § 1404(a) where the requirements are less stringent and where the court has greater discretion, than on a forum non conveniens motion. Norwood v. Kirkpatrick, supra.

A host of cases were considered by our Supreme Court in Cotton, and resulted in the determination by our Court that the predominate rational of them corresponded substantially to the approach of Justice Jackson in Gulf Oil Corporation v. Gilbert, 330 US 501, 508, 67 S Ct 839, 843, where he stated:

“But unless the balance is strongly in favor of the defendant, the plaintiff’s choice of forum should rarely be disturbed.”

Beginning with this basic premise, we test the sufficiency of defendant’s motion in accordance with the standards set forth in Cotton, as modified.

First, defendant alleged plaintiff was a nonresident of Illinois, a nonresident of Madison County, and believed to be a resident of Eddyville, Kentucky. Residence of a plaintiff in a County of Illinois is not a requirement of the Act for venue purposes, and “no one has been denied access to our Courts by virtue of his nonresident status.” Whitney v. Madden, 400 Ill 185, 188, 79 NE2d 593.

Second, plaintiff alleged defendant did business in Illinois and Madison County. Defendant denied it did business in Madison County other than passing through the county, but did not deny it did business in Illinois. For the purposes of this motion, obviously filed under chapter 110, section 35, but not meeting the requirements of that section regarding verification by a corporation, plaintiff’s allegation of doing business must be accepted as true. Defendant further alleged that it was a Delaware Corporation, with its principal office in Paducah, Kentucky, and that it was not licensed in Illinois and had no place of business in Illinois. Since defendant is a nonresident, venue lies in Madison County under chapter 110, section 5, Ill Rev Stats, which states that if all defendants are nonresident they may be sued in any county of the State.

Third, the motion alleged that plaintiff’s injury occurred “on the Ohio River ... at some place in the area adjacent to the State of Indiana.” Since the alleged injury is based on negligence aboard, and the seaworthiness of, a floating vessel, we cannot comprehend how the geographical location at the time of the alleged injury could be of any consequence, and defendant has alleged nothing that could be interpreted as making the geographical location of the injury of even the slightest importance, and it does not suggest that venue would lie in Indiana.

Defendant next sets forth that plaintiff’s counsel is not a resident of Madison County, which plaintiff admits, but states that his counsel is a licensed practitioner in Illinois, residing in an adjoining Illinois county. See Supreme Court Rule 701 (b); c 110A, § 701 (b), Ill Rev Stats.

Fifth, it alleged that crew members who know, or may know of the occurrence are: Bacchus, living at Old Cairo Road, Paducah, Kentucky; Wynn, living in Dover, Tennessee; Land, living in Metropolis, Illinois; Harris, living in Paducah, Kentucky; and that all of the medical evidence will probably consist of a doctor from Paducah, Kentucky; hospital personnel of the Veterans Hospital in Nashville, Tennessee; and probably other members of the staff of the U. S. Public Health Service Outpatient Clinic in Memphis, Tennessee.

The only distinction we can draw between its allegation and those in the Cotton case, which were held insufficient, is that they give the names and addresses of the witnesses. They did not even state to the court that they would produce these people as witnesses, and that the testimony, if any, was in any way beneficial to the defense of the case, and did not attempt to set forth what the testimony was. If defendant wishes this case tried in Paducah, Kentucky, which its motion suggests would be of relative convenience, and a trial site of more convenience and less expense (as well as additional expense on the part of both plaintiff’s and defendant’s counsel), then there would be the same problem as far as the subpoena power of the court in Paducah that there would be in the court in Madison County. Of the four lay witnesses, one lives in Tennessee, and one lives in Illinois, and of the medical witnesses, one doctor is in Paducah, but the others are all in Nashville, Tennessee, and Memphis, Tennessee.

A general review of the facts in the Cotton case which is a typical FELA case indicates that the crew members, the physicians, and the locale of the injury all were in one geographic area. In this, a seaman’s case, where the very same venue provisions apply, the location of witnesses is not as important because as is apparent in this case the witnesses reside in three different states, Illinois, Kentucky, and Tennessee, and the occurrence took place off Indiana. Unavailability of seamen witnesses has been judicially recognized by the courts. In the case of Medich v. American Oil Co., 177 F Supp 682 (DC Pa 1959), a transfer from Pennsylvania to Texas was denied, the court at page 683, stated:

“While defendant has stressed that the seamen witnesses all reside in or near the southern district of Texas, the very fact that their witnesses are seamen deletes the importance of this factor; by the nature of their employment seamen are often unavailable as witnesses and their testimony must then be submitted in deposition form.”

In a later case, Williams v. Central Gulf Steamship Corp., 240 F Supp 563, 564 (1965), the same principle was discussed, with the court adding that it has rarely seen physicians of the United States Public Health Service appear in court personally, but rather their testimony is generally submitted in deposition form.

In Continental Cas. Co. v. Hartford Accident & Indemnity Co., 28 Ill App2d 177, 171 NE2d 68, the Appellate Court reversed a dismissal order entered in a case not brought under an Act with special venue provisions, because of inadequacy of the motion. While the motion was exceptionally brief, it included as many pertinent factors as does the motion in this cause, except the names of the anticipated witnesses, and names of witnesses, without some indication of the testimony expected of them and whether the evidence would be corroborative or not, are of no value in the exercise of discretion on such motion.

Other allegations of defendant’s motion include: that it may be necessary to introduce testimony of other members of the crew, none of whom are residents of Madison County; that defendant will be subjected to unnecessary expense of transporting to and maintaining witnesses in Madison Gounty; that the Statute of Limitations will not have run until May 15, 1969; that there is no relevant connection between Madison County and the cause of action alleged; that on information and belief there is no known witness who is a resident of Madison County; that there would be no injustice to plaintiff since the Court system of Kentucky is available to plaintiff and he can there get personal service on defendant, although defendant does not allege that personal service cannot be had upon defendant in Illinois, and the complaint suggests that it can; and that unnecessary hardship and inconvenience would be imposed upon defendant and its essential witnesses. Those allegations are either of general nature or both general and conclusions.

Defendant suggests that the discretion exercised by a court “enjoys a presumptive immunity from review.” The question of abuse of judicial discretion is always subject to review. Whitney v. Madden, supra. It further suggests that its motion is under oath, and that since plaintiff has not denied any of its allegations under oath, they must stand conceded. C 110, § 35, Ill Rev Stats specifies that a corporation may verify a pleading by the oath of any officer or agent having knowledge of the facts. This motion does not recite that the Madison County attorney who verified has such knowledge. From the face of the pleading his information must all be hearsay or conclusions.

In People v. Pfanschmidt, 262 Ill 411, 441, 104 NE 804, our Supreme Court said:

“By judicial discretion is meant sound discretion guided by law. It does not mean an arbitrary discretion. Judicial power is never exercised for the purpose of giving effect to the will of the Judge,— always for the purpose of giving effect to the will of the legislature; or in other words, to the will of the law.”

Without following the guidelines set down by law, courts could completely sterilize the venue privileges granted by the Jones Act. As was stated in the extensive opinion in Cotton, supra, the plaintiff was given a right to select a forum, and both the Illinois General Assembly and the Congress of the United States have refused to pass legislation in any way limiting that right. (Cotton, 153-155, 158.) The burden of a clear and convincing case on behalf of the motion is the burden of the movant to show more than a mere balance of convenience to deprive such plaintiff of a right which should rarely be disturbed.

The court by failure to require the defendant to adhere to the guidelines set forth in Cotton, did not have sufficient latitude in which its discretionary power could be exercised. We, therefore, reverse the order granting the motion and dismissing the case and remand the cause for further proceedings.

Reversed and remanded.

GOLDENHERSH and MORAN, JJ., concur.

       461 US Code, Sec 688 confers the same remedies for seamen as are conferred on railway employees.

       The modification of Cotton effected by People ex rel. Chesapeake & Ohio R. Co. v. Donovan, supra, consisted of a disavowal of a statement found in Cotton, 174, “that only where it is shown that plaintiff is motivated purely by vexation and harassment will an FELA case be dismissed.” Donovan went on to say that the factors to be considered upon such a motion were to be found in Whitney v. Madden, 400 Ill 185, 79 NE2d 593 (a case not brought under an act having special venue provisions) “and the other portions of Cotton.”