text:
    Jack Shiflett, Individually, and for the Use of Fay Shiflett, Individually, as His Wife, Plaintiffs-Appellees, v. Clifford Madison, d/b/a Cliff’s Lounge, Joseph Armenali, et al., Defendants-Appellants.
    Gen. No. 51,835.
    First District, Fourth Division.
    February 5, 1969.

      Sullivan & Cooper, and Canel & Canel, of Chicago (Jay A. Canel, of counsel), for appellants.
    Fred Lambruschi and Joseph Stillo, of Chicago (Fred Lambruschi, Herbert Veldenz, and Vera E. Cuthbert, of counsel), for appellees.
   MR. JUSTICE McCORMICK

delivered the opinion of the court.

This appeal is taken from a judgment entered by the Circuit Court of Cook County on May 5,1966, pursuant to the Dram Shop Act (Ill Rev Stats 1963, c 43, § 135), ordering that the plaintiffs, Jack Shiflett and his wife, Fay Shiflett, have and recover from the defendants, Clifford Madison, doing business as Cliff’s Lounge; Joseph Armenali; Ann Armenali; Anthony J. Zini; and Marjorie Zini, the sums of $15,000 and $8,000 respectively.

Plaintiff Jack Shiflett, individually, and for the use of his wife, Fay Shiflett, filed his complaint at law and amendments thereto, alleging that the defendant, Clifford Madison, was the owner and operator of a liquor tavern known as Cliff’s Lounge; that defendants Joseph Armenali, Ann Armenali, Anthony J. Zini and Marjorie Zini, owned, possessed and controlled the building where the aforementioned tavern is located, and that they leased the premises to Clifford Madison, knowing full well that he intended to use the premises for the selling of alcoholic liquor therein; that on October 4, 1963, Clifford Madison sold intoxicating liquor to one Johnny Lee Morris, causing him to be become intoxicated; that as a direct and proximate result and in consequence of said intoxication, Johnny Lee Morris, wilfully and without provocation, assaulted Jack Shiflett, causing him great bodily harm consisting of both outward lacerations and internal injuries ; that therefore, by force of the Illinois Dram Shop Act, the plaintiff, Jack Shiflett, is entitled to recover damages from the defendants in the sum of $15,000, and that Fay Shiflett, his lawful wife, is entitled to recover damages from the defendants in the sum of $20,000 for the loss of her income and means of support resulting from her husband’s injuries.

In response the defendants filed their answer in which they denied their liability under the Dram Shop Act for the injuries inflicted upon Jack Shiflett by Johnny Lee Morris, and further alleged that the plaintiffs are not entitled to recover damages in the amounts prayed for.

On April 28, a trial was held before the court, and the following evidence was presented. On October 4,1968, the plaintiffs, together with several friends, were patrons at Cliff’s Lounge, located at 4612 North Clark Street, in Chicago. There was an altercation between Jack Shiflett and Johnny Lee Morris, resulting in Jack Shiflett’s being injured. The plaintiffs instituted suit against the named defendants under the Illinois Dram Shop Act, and also against Johnny Lee Morris. During the trial, however, Morris was dismissed as a party defendant.

At trial, the defendants set out that Jack Shiflett had provoked the altercation, but the jury decided the issue in favor of the plaintiff, and found that Jack Shiflett had in fact been assaulted without provocation. As a result, Shiflett claimed that he was injured extensively and is now unable to perform his ordinary occupation; that as a consequence he has lost substantial income and incurred considerable medical expenses. He testified that he was employed by the Anchor Metal Finishing Company during 1960 and 1961, earning $3,900 and $4,800, respectively, during that time, but that during 1962 he was unemployed. He testified that in 1963 he had worked for four months as a painter for Roberts Painting and Decorating at a weekly salary of $100, but that he had never been fully paid for his labor; that he had worked a few days for a plumbing and heating company; that for four or five weeks prior to the injury he had been employed as a carpenter’s helper at Landy Feldman Construction Company at a weekly salary of $100, and in addition had earned from $10 to $15 a week working part time in Cliff’s Lounge. In his 1963 income tax report, however, the plaintiff did not report any income from Landy Feldman Construction Company, nor did he mention in his answers to interrogatories that he had ever been employed as a carpenter’s helper.

Jack Shiflett.further testified that during his working periods he turned over his salary to his wife and thereby contributed to her support, but that during most of the year 1962-63 his wife was the sole support of the family.

At one point in the trial, counsel for the defendants tried to introduce evidence in an attempt to show the type of automobile owned by plaintiffs—a 1966 Chevrolet Impala. The trial judge, however, ruled that such evidence was not admissible and excluded it. After the evidence had been presented the trial court instructed the jury, over defendants’ objection, as follows:

If you decide for the plaintiff, Jack Shiflett on the question of liability as to the defendants, you must then fix the amount of money which will reasonably and fairly compensate him for any of the following elements of damage proved by the evidence to have been caused by the intoxicated person:
The nature, extent and duration of the injury.
The disability and disfigurement resulting from the injury.
The pain and suffering experienced and reasonably certain to be experienced in the future as a result of the injuries.
The reasonable expense of necessary medical care, treatment, and services received.
The value of salaries individually lost to the plaintiff.
Whether any of these elements of damages has been proved by the evidence is for you to determine.
This amount may not exceed Fifteen Thousand ($15,000.00) Dollars.
If you decide for the plaintiff, Jack Shiflett for the use of Fay Shiflett, on the question of liability, you must then fix the total amount of money which will reasonably and fairly compensate the person you find has suffered loss to her means of support, for such loss. This amount may not exceed Twenty Thousand ($20,000.00) Dollars.
The phrase, “means of support” includes the necessities of life, and comforts as well. Whatever lessens or impairs the ability to supply suitable comforts which might reasonably be expected from the person who furnished support, considering his occupation and capacity for earning money, may be regarded as lessening or impairing the “means of support” referred to in these instructions.

Based upon these instructions, the jury returned a verdict in favor of the plaintiff, Jack Shiflett, in the amount of $15,000, and in favor of Jack Shiflett for the use of Fay Shiflett in the amount of $8,000. Judgment was then entered on the verdict. On July 11, 1966, the defendants filed their post-trial motion asking that the court set aside and vacate the verdict of the jury and its judgment entered, or in the alternative, to order a new trial. On August 15, 1966, the court denied defendants’ motion, and on September 2, 1966, defendants filed their notice of appeal with this court.

In the instant appeal defendants take the position that they are entitled either to a new trial on the issue of damages, or in the alternative, to have the $8,000 judgment in favor of Jack Shiflett for the use of Fay Shiflett credited toward the $15,000 judgment in favor of Jack Shiflett, individually, thereby reducing the total judgment to the sum of $15,000. In support of their position defendants present the following theories: that the trial court erred in giving the instructions relating to the elements of damages in the case of Jack Shiflett, individually, because that element of damages, being loss of wages, was already included as an element of damages in the case of Jack Shiflett for the use of Fay Shiflett, for the loss of her means of support, thereby resulting in a double recovery for the same injury, contrary to law; that in the alternative, the verdict for loss of means of support was not supported by the evidence presented at trial; and further, that the court erred in excluding evidence pertaining to the type of automobile owned by the plaintiffs.

Since the defendants admit in their brief that they are liable to plaintiffs under the Dram Shop Act, and are not raising that question in this appeal, we can proceed directly to the question of the propriety of the damage award.

It is a well-settled rule of law that under the Dram Shop Act “loss of means of support” has been construed as requiring that the person injured did in fact render support and that no damage award can be based on a future potentiality of support not presently provable. Robertson v. White, 11 Ill App2d 177, 136 NE2d 550; Lowrey v. Malkowski, 23 Ill App2d 371, 163 NE2d 528.

In the instant case the evidence pertaining to Jack Shiflett’s employment is as follows: He was unemployed during all of 1962, and in 1963 he was employed for about four months as a painter at a weekly salary of approximately $100, but had never been fully paid for his services, having received only $60.40. He also worked for a plumbing and heating firm, but only for a few days. He earned $10 to $15 a week in part-time work at Cliff’s Lounge. Although Shiflett testified that at the time of the injury in question he was employed and had been employed four to five weeks previously, his testimony is contradicted by his own answers to interrogatories and by his failure to include in his 1963 income tax return any income supposedly derived from that employment. In fact, the only provable income which was reported during 1963 was the $60.40 previously mentioned. Accordingly, under the circumstances present here, the damages awarded to Fay Shiflett were not based upon any loss of support presently provable as required under the previously cited rule of law.

Furthermore, under section 135, chapter 43, Ill Rev Stats 1963, the following is provided:

Every person, who shall be injured, in person or property by any intoxicated person, shall have a right of action in his or her own name, severally or jointly, against any person or persons who shall, by selling or giving alcoholic liquor, have caused the intoxication, in whole or in part, of such person; .... An action shall lie for injuries to means of support, caused by an intoxicated person, or in consequence of the intoxication, habitual or otherwise, of any person, resulting as aforesaid. Such action shall be brought by and in the name of the person injured or the personal representative of the deceased person, as the case may be, from whom said support was furnished, ....

Pursuant to this Act, a single injury may give rise to any number of different causes of action; any number of different persons may be damaged in person, property or means of support as the result of a single occurrence. Such is the case at bar. Kelly v. Hughes, 33 Ill App2d 314, 173 NE2d 273.

Jack Shiflett has a right of action to recover for his injuries and his money loss; for the use of his wife, Fay Shiflett, he can recover for injuries to her means of support. However, it is well settled that regardless of the fact that there may be available to plaintiffs multiple remedies and actions, it is axiomatic that for one injury there may be but one satisfaction. Haupt v. Golick, 57 Ill App2d 481, 206 NE2d 542. The instructions given by a court must be so framed as not to mislead the jury into duplicating the elements of damages in a recovery, or into awarding damages twice for the same injury. See Monken v. Baltimore & O. R. Co., 342 Ill App 1, 95 NE2d 130.

Kelly v. Hughes, supra, is analogous to the instant case. There the plaintiff sued under the Dram Shop Act for injuries to herself in Count I of her complaint, and on behalf of her parents for their loss of her means of support in Count II. The court held that it was not a situation where the plaintiff would receive a double recovery, because she had expressly excluded from her cause of action under Count I any claim for any portion of her income which she had used to support her parents. Had she included the same element of damages in both counts she would have recovered twice for the same injury.

In the case before us, Jack Shifleft’s lost income is included as an element of damages in both his action and in the action brought by him for the use of his wife. The instruction as to the elements of damage to be considered in his action specifically provided for “the value of salaries individually lost to the plaintiff.” In addition, he was allowed to recover for the use of his wife damages for her “loss of support” which was defined in another instruction as including “whatever lessens or impairs the ability to supply suitable comforts which might reasonably be expected from the person who furnished support, considering his occupation and capacity for earning money, may be regarded as lessening or impairing the ‘means of support’ referred to in these instructions.” (Emphasis supplied.)

In framing its instructions as it did, including the lost income of Jack Shiflett as an element of damages in both actions, the trial court erred in that those instructions might very well have misled the jury into awarding damages twice for the same injury, contrary to law.

Since the defendants are not questioning the propriety of a total award in the amount of $15,000, and since we have concluded that the jury improperly awarded damages to Jack Shiflett for the use of Fay Shiflett to compensate her for the loss of her support, in that no actual loss of support had been proved, and that the instructions given to the jury on the question were improper, the judgment in favor of Jack Shiflett for the use of Fay Shiflett is reversed, and the judgment in favor of Jack Shiflett, individually, is affirmed.

Reversed in part, affirmed in part.

DRUCKER, P. J. and ENGLISH, J., concur.


source: Caselaw Access Project

author: MR. JUSTICE STAMOS

license: Public Domain

text:
    International Service Corporation of New York, Plaintiff-Appellee, v. Owen J. Ooms, Defendant-Appellant.
    Gen. No. 51,965.
    First District, Fourth Division.
    February 5, 1969.
    Erwin F. Adams, of Chicago, for appellant.
    Theodore Pollock, of Chicago, for appellee.
   MR. JUSTICE STAMOS

delivered the opinion of the court.

Plaintiff on November 18, 1965, sued for the sum of $377.75, plus interest, alleging this balance was due and owing for services. A trial without a jury resulted in a finding and judgment for plaintiff. Defendant appeals.

Plaintiff is engaged in investigative services specializing in the areas of patent and trademark investigation with its principal place of business in New York City. Defendant is an attorney in Chicago, specializing in patent and trademark matters.

Plaintiff in its complaint alleged that it rendered investigative service in New York City and Chicago for defendant at defendant’s instance and request, in investigations regarding a civil action titled, Donald F. Duncan, Inc. v. Royal Tops Mfg. Co., Inc.: that the value of the services was $627.75; that a balance of $377.75, plus interest, remains due and owing which defendant refuses to pay.

Defendant’s answer admitted that plaintiff performed the above mentioned services but as an affirmative defense alleged that he was retained by Donald F. Duncan, Inc. as its attorney-at-law to manage, supervise and conduct the lawsuit against Royal Tops Mfg. Co. Defendant further averred that in the conduct of such lawsuit he was authorized to carry out and perform as agent for said Donald F. Duncan, Inc., all matters in connection with such litigation including the hiring of an investigator on and in behalf of his principal, Donald F. Duncan, Inc. Defendant further averred that plaintiff’s investigative services were rendered for said Donald F. Duncan, Inc., a disclosed principal, at the request of defendant' acting as the duly authorized agent of said Donald F. Duncan, Inc., of which plaintiff was apprised.

Defendant further alleged that plaintiff received in part payment for its services the sum of $250 from Donald F. Duncan, Inc., and any balance due plaintiff is owing from said Donald F. Duncan, Inc.

Plaintiff’s only witness, U. O. Cumming, President of plaintiff, testified that plaintiff has its principal place of business in New York and is engaged in specializing in the areas of patent and trademark investigation. On or about February 7, 1964, he had a telephone conversation with defendant who requested that plaintiff perform some investigative services to determine whether Royal Tops Mfg. Co., was selling products bearing the trademark YO-YO. Cumming further testified that he knew that defendant was an attorney-at-law and was told by defendant that he was representing a client, but the witness did not know the identity of defendant’s client until one of plaintiff’s investigators, Alexander A. Forgacs, signed an affidavit on February 16, 1964, which affidavit reflected the title of the litigation. In plaintiff’s brief, the statement of facts recites that defendant never advised Cumming that defendant was representing a client. This recital by plaintiff is in conflict with the report of proceedings and the testimony of plaintiff’s only witness.

Cumming related he had personally known defendant for a long time prior to the telephone conversation of February 7, 1964, as an attorney specializing in patent and trademark matters.

The requested investigative services performed by plaintiff included two visits to the Royal Tops Mfg. Co., Inc., place of business on February 7 and 10, 1964. The results of the two visits by Forgacs, plaintiff’s investigator, were made known to defendant who prepared and sent to plaintiff an affidavit to be executed by Forgacs. This affidavit was executed by Forgacs on February 16, 1964, and returned to defendant for use in a contempt proceeding arising out of the lawsuit wherein defendant’s client, Donald F. Duncan, Inc., had earlier secured a final decree against Royal Tops Mfg. Co., Inc., enjoining it from using the trademark “YO-YO.”

The affidavit recited the purchases by Forgacs from Royal Tops Mfg. Co., of products bearing the trademark “YO-YO.” The affidavit’s caption recited the title of the litigation as Donald F. Duncan, Inc. v. Royal Tops Mfg. Co., Inc., before the United States District Court for the Northern District of Illinois.

On February 25, 1964, Forgacs appeared in Chicago and testified as a witness on behalf of defendant’s client in the aforementioned contempt proceedings.

Plaintiff submitted a bill for its services and expenses in the amount of $675 which was sent to defendant. Plaintiff received a check drawn by Donald F. Duncan, Inc., in the sum of $250 as partial payment. This check was payable to plaintiff, but sent to defendant who in turn forwarded it to plaintiff. The record is silent as to the date this check was executed, received by plaintiff or negotiated.

Defendant testified he was attorney for Donald F. Duncan, Inc., in the trademark infringement suit in which a judgment enjoined Royal Tops Mfg. Co., Inc., from infringing the trademark “YO-YO” owned and used by Donald F. Duncan, Inc.

Defendant’s version of the telephone conversation is as follows: Defendant told U. 0. Cumming that he represented Donald F. Duncan, Inc., and requested plaintiff to perform some investigation work to determine if Royal Tops Mfg. Co., Inc., was selling products bearing the trademark “YO-YO” in violation of an injunction order which had been granted in favor of Donald F. Duncan, Inc., against said Royal Tops Mfg. Co., Inc. Defendant and Cumming testified alike in all respects except for the portion regarding whether defendant identified his client.

On September 13, 1965, eighteen months after the performance of the services, defendant’s client, Donald F. Duncan, Inc., was adjudicated a bankrupt. The instant suit was filed 35 days later.

Plaintiff admits in its brief that some time after its hiring by defendant, plaintiff was aware of the fact that defendant was acting for a client, “Duncan YO-YO Company.” Plaintiff takes the position however, that this disclosure in no way altered plaintiff’s relationship with defendant, since plaintiff continued to deal directly with defendant, as indicated; and that at no time did plaintiff deal or correspond directly with defendant’s client.

Defendant argues that the record shows that he acted only as an agent and is therefore not personally liable to the plaintiff. Defendant relies on Petrando v. Barry, 4 Ill App2d 319, 124 NE2d 85 (1955), in which the court held that the attorney-defendant was not personally liable for the cost of printing briefs and abstract. In that case, the court found that the typewritten abstract was brought to the plaintiff and briefs and abstract were printed by the plaintiff, who billed the attorney for the cost. The bills to the attorney showed the parties to the appeal and acknowledged credit for payments made by the attorney. The attorney never agreed to be personally bound.

See the Petrando case, page 322, where the court said:

“. . . [D]oes the settled Hlinois rule of liability apply to an attorney as it does in other cases of agency ? We think it does.”

and cited Mechem, Outlines of the Law of Agency, §§ 612, 622 (3rd ed 1923):

“. . . But the relation of the attorney to his client, in some of its aspects, is a relation of agency, and is, in general, governed by the same rules which apply to other agencies. . . .
“So the attorney is not liable ordinarily to third persons upon the contracts which he makes for his clients, where his agency is disclosed, and the attorney does not pledge his personal responsibility. . . .”

In Petrando, the identity of the client was inferred from the appearance of its name on the abstract; in the instant case the status of defendant as representing a client was immediately disclosed and the name of the client revealed shortly thereafter. In Petrando, the attorney made payments while in the instant case the only payment was made by the client’s check payable to the plaintiff. In neither Petrando nor in the instant case did the defendant agree to be bound personally.

The rule stated in the Petrando case at page 322 is applicable here:

“When an agent in making a contract discloses his agency and the name of his principal, or when the party dealing with the agent knows that the agent is acting as an agent in making the contract, the agent is not liable on the contract, unless he agrees to become personally liable. (Millikin v. Jones, 77 Ill 372; Wheeler v. Reed, 36 Ill 81; Chase v. Debolt, 2 Gilm 371).” (Emphasis supplied.)

The plaintiff argues that even if defendant was acting on behalf of a disclosed principal, this court should overrule Illinois authority and adopt the contrary view enunciated in Massachusetts in Burt v. Gahan, 351 Mass 340, 220 NE2d 817 (1966).

We discern no compelling reason to depart from the established Illinois rule.

We therefore conclude from this record that plaintiff knew that plaintiff was acting as agent and therefore the plaintiff has no cause of action against defendant. The judgment of the Circuit Court is reversed.

Judgment reversed.

DRUCKER, P. J. and ENGLISH, J., concur.


author: MR. PRESIDING JUSTICE DRUCKER

text:
    People of the State of Illinois, Plaintiff-Appellee, v. William F. Young, Defendant-Appellant.
    Gen. No. 52,370.
    First District, Fourth Division.
    February 5, 1969.
    Gerald W. Getty, Public Defender of Cook County, of Chicago (James J. Doherty, Assistant Public Defender, of counsel), for appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane, Joel M. Flaum, and James B. Haddad, Assistant State’s Attorneys, of counsel), for appellee.
   MR. PRESIDING JUSTICE DRUCKER

delivered the opinion of the court.

Defendant appeals from a judgment and sentence of two to three years in the penitentiary after a plea of guilty to the offense of bail jumping. Defendant urges that the sentence was unduly harsh in light of the circumstances. The following facts were stipulated. On March 22, 1966, defendant walked out of a courtroom while on bail pending a trial for attempt robbery; a bond forfeiture was entered and a warrant for arrest issued. It was also stipulated that Detectives Panepenta and Rizzi would testify that on July 13, 1966, defendant forcibly resisted arrest causing a crowd of two hundred people to gather and that he damaged the clothing of both detectives in the struggle. In the hearing on aggravation the following criminal record was presented:

In 1952 he was sentenced one to three years for larceny of auto and motor vehicle.
1955, six months in the House of Correction for tampering with auto.
1957, three years in Federal Penitentiary in Terre Haute for assault, larceny and wrongful appropriation.
1959, one year House of Correction for larceny.
1961, two to five years in the Illinois State Penitentiary for assault to rob.
1965, three months House of Correction for a reduced burglary.

In mitigation defendant pleaded (1) that he was acquitted of the charge for which he had posted bond, (2) that his difficulty in obtaining employment would be increased, (3) that his wife was sick and (4) that he had learned his lesson. The trial judge in passing sentence stated:

Mr. Young, we have had a legislative change in this bond situation. The policy of the legislature has been not to hold defendants in custody merely because they lack the funds for a bond premium, but, instead, to substitute for that, under the statutes, the possibility of a prison sentence.
Now, this Court is very anxious to carry out the purposes of that new statute, and has attempted to comply with the spirit of it by releasing defendants on low bonds and releasing a man on his own recognizance. But also it requires the Court, when it comes to a case in which it is clear, a bond forfeiting charge, to impose a sentence in the penitentiary, Mr. Young, and that’s what I intend to do.

Since defendant has not presented any substantial reason why the sentence should be reduced, the judgment and sentence of the Circuit Court are affirmed. People v. Plodzien, 104 Ill App2d 336, 244 NE2d 343.

Affirmed.

ENGLISH and McNAMARA, JJ., concur.


author: ME., PEESIDING JUSTICE DEUCKEE

text:
    Dolores Johnson, Plaintiff-Appellant, v. Axel Johnson, Defendant-Appellee.
    Gen. No. 52,782.
    First District, Fourth Division.
    February 5, 1969.

      Kenart M. Rata, of Chicago, for appellant.

      Sydney B. Wexler and Morris J. Wexler, of Chicago, for appellee.
   ME., PEESIDING JUSTICE DEUCKEE

delivered the opinion of the court.

This is an appeal from a judgment granting the petition of defendant (husband of the plaintiff) for leave to remove the three minor children of the parties from Illinois, and from a subsequent denial of the wife’s motion to vacate the aforesaid judgment, to award her attorney’s fees and for other relief.

CONTENTIONS ON APPEAL

(1) The granting of husband’s motion to take the children out of Illinois violates the Separate Maintenance Act, Ill Rev Stats 1967, c 68, § 22.1.

(2) The judgment allowing removal of the children is not supported by any evidence that the removal is in the best interests of the minor children.

(8) The court abused its discretion in failing to require defendant to furnish bond to guarantee the return of the children to the jurisdiction of the court in the event the best interests of the children required return.

(4) The court erred in refusing a hearing on plaintiff’s petition for a change of custody.

(5) The court abused its discretion in refusing to permit plaintiff to present evidence in connection with attorney’s fees incurred in connection with the removal petition and a prior appeal.

Pleadings

On April 27, 1967, the husband filed a petition seeking an order allowing the minor children to accompany him for residence in Florida at the termination of the school year in June 1967. The petition alleged that at the time of the entry of the judgment appealed from the parties were the parents of three minor children: Douglas, age 16; Hans, age 13; and Stephen, age 12. It referred to a decree of separate maintenance entered July 9, 1965, by which custody of the minor children was awarded to the husband, and granted certain visitation rights to the wife. The decree also provided that the wife have custody of a daughter, Blanche, now of age; provided for the payment to the wife of $75 per week as separate maintenance; made provision for the support of Blanche; and provided that the “removal of the three minor boys from this state shall be solely on a temporary basis and then only for the purpose of accompanying or being with one or the other of the parents.” The petition further stated that there were excellent business opportunities available to defendant in Florida and that the best interests of the children would be served if they were permitted to accompany him there.

The wife answered denying that the best interests of the children would be served if they were permitted to accompany the husband to Florida. She also alleged that the granting of husband’s petition would deprive the wife of the visitation rights afforded her by the decree of separate maintenance.

On June 28, 1967, the court granted defendant leave to remove the children to Florida and on August 25 denied the motion of plaintiff to vacate that order and also denied plaintiff’s petition for change of custody and attorney’s fees. Plaintiff appealed from both judgments.

THE EVIDENCE

Testimony of Axel Johnson, defendant

He is in the construction business; his income for 1966 was $20,800; he has done only some minor jobs in 1967; he has had some bids outstanding but none had culminated in contracts. He looked for employment with other contractors around Chicago without success.

He received two offers for jobs in Florida; one, a firm commitment from Mr. Spicer, president of DeWitt, Pernell & Spicer, at $18,000 plus fringe benefits; the other, from Miles-Jones Construction Co. at a rate of $20,GOO-22,000 as a project manager.

His home at 10505 Longwood Drive, valued at about $65,000, has been foreclosed because he could not meet mortgage payments. The bank has sold the house and notified him to move out in June or pay rent.

If he moves to Florida he will establish residence in his father’s home where there is a guesthouse. The oldest boy would enroll in Dunedin High School, and the two younger boys would enter Dunedin Elementary School. He would soon seek permanent residence; he would live in his father’s house only temporarily.

The witness considered the offer of DeWitt, Pernell & Spicer to be a firm offer. The letter he received does contain some possibly equivocal language: “We, of course, would want to meet with you personally and have an opportunity to investigate you further. . . . We have also scheduled an interview with Hartes & Associates, Industrial Psychologists.” The offer from Miles-Jones was not in writing; it was a verbal offer and he considers it binding.

His employment would be from 9:00 to 5:00. The boys would leave for school about 8:00 a. m. and return about 4:00 p. m.; his mother, a woman of 70, will take care of the boys until he returns home.

Testimony of the Minor Children (as reported by the judge who talked to them privately in chambers with the consent of plaintiff’s attorney):

Douglas: Wants to be an architect; is doing fairly well in school; wants to go to Florida. He gets along very well with his father; and (after a pause) “I guess all right” when asked the same question about his mother.

Hans: Wants to be a contractor; gets along well with his father, and “not too bad” with his mother; likes the idea of going to Florida.

Stephen: Wants to be a psychiatrist or a lawyer; gets along fine with both father and mother.

Testimony of Mrs. Anna Johnson, mother of defendant

She described her home in Florida as an old Spanish house of stucco surface with four bedrooms. There is a garage in connection with it and a small guesthouse. The guesthouse has one bedroom with twin beds, a living room in which there is a sofa that can be made into twin beds, a kitchen, and a bathroom with full facilities. She believes that the guesthouse can easily accommodate four people.

She is in excellent health; she has not been in a hospital in 25 years. She last saw a doctor two years ago for a general physical checkup.

Testimony of Dolores Johnson, plaintiff

If the court allows husband to take the children to Florida she will not be able to afford the trips to Florida to exercise visitation rights.

The mortgage on the home was cosigned by her and the money was used by husband and his father for stock purchases. She never got any of that money. She receives alimony of $75 a week. She is not working now; the daughter (Blanche) is not working either because she has stomach trouble. She has always refused to let husband sell the 59th Street property or to sell the house on Longwood Drive, even with foreclosure imminent.

OPINION

The wife first argues that the granting of permission to the husband to take the children to Florida violates the provisions of the Separate Maintenance Act. The relevant provision of the Act, Ill Rev Stats 1967, c 68, § 22.1, reads:

The court may grant leave, before or after decree, to any party having custody of the minor child or children to remove such child or children from Illinois whenever such removal is in the best interests of such child or children.

We find no merit in this argument. The discretion given by this statute to the courts is limited only by “the best interests of such child . . . .”

The wife then contends that the record is devoid of evidence that removal would be in the best interests of the children. In the original separate maintenance action it was found that it was in the best interests of the children to live with the father rather than the mother; there is no support in the record for the wife’s contention that the father was awarded custody solely on the basis of pictures of the house which the father had occupied. The trial judge in discussing his finding stated:

This is an extremely difficult decision. We have a situation where the father has legal custody of these three boys, and they are not infants, sixteen, thirteen and twelve. They are certainly well-adjusted boys, and I have had a chat as the record will indicate with these kids. Certainly these boys are enthusiastic about going south, but there is an explanation for that too.
There is no question in my mind, but what that the father is having some financial problems here. From what I gathered from the evidence and from what evidence that has been before me would indicate that the father definitely feels that he has an opportunity to stabilize his financial situation. Carrying the present load, he has got two families that he has to support, and these boys are rapidly reaching the age where college is right around the corner. So he has to produce, and he feels that he has an opportunity down there to stabilize his financial situation. I feel, considering the picture as a whole, I have been sitting here listening very carefully, I think it is the best interest of these children that they be moved with the father. But I do think that very liberal visitation rights ought to be set up for the mother.
I think also there should be arrangements made for child support while these children are with the mother, and I would suggest that you try to hammer out these details between yourselves, because, if you can’t, I will step in and I will do it. I do think this mother ought to be given liberal visitation rights, and with that I would suggest that you confer between yourselves to find out if you are going to run into a problem.

On June 28, 1967, the court granted defendant permission to remove the three minor children to Florida with visitation rights to plaintiff (1) six weeks during summer vacation, (2) seven days during Christmas holidays and (3) seven days during the Easter-Spring vacation period; the defendant to pay transportation expenses and $25 per week for each child while residing with plaintiff.

The trial judge after a careful study of all factors determined that a removal to Florida was for the best interests of the children. We find no abuse of discretion in his finding.

The wife further contends that the trial court abused its discretion when it did not require the husband to furnish bond to guarantee the return of the children to the jurisdiction of the court in the event the best interests of the children requires return.

Ill Rev Stats 1967, c 68, § 22.1, in relevant part provides:

When such removal is permitted the Court may require the party removing such . . . children from Illinois to give reasonable security guaranteeing the return of such . . . children should the Court decide that return is in the best interest of such . . . children.

It is explicit in its pronouncement that the trial court “may” require such a bond; it is clear that such requirement is completely in the discretion of the trial court. As such, this court will not upset the trial court’s decision where no request therefor was made by plaintiff or any evidence adduced that defendant would not abide by the court’s orders.

Plaintiff next argues that when visitation rights are substantially decreased it is such a change of condition that, as a matter of law, it entitles the plaintiff to present evidence in support of her petition for a modification of a prior order granting custody of the children to the husband. After a full hearing the court had previously determined that the order of removal was in the best interests of the children even though plaintiff’s visiting privileges were modified. We find that this order does not, ipso facto, establish a base for a change in custody. It may be that conditions could arise from the change in residence which would justify the filing of a new petition for a change of custody. See Gerst v. Gerst, 349 Ill App 201, 110 NE2d 470.

In her petition to vacate the judgment plaintiff also requested attorney’s fees. Although the judgment of June 28,1967, reserved the question of plaintiff’s attorney’s fees, the court in its hearing on August 25 stated that plaintiff’s former attorney had told the court that he would not request attorney fees. Defendant’s counsel corroborated the judge’s statement but plaintiff stated “that was without my permission.” The record does not show any waiver of attorney’s fees. Under these circumstances the court should have granted a hearing to determine whether or not there was a waiver and if not, to fix reasonable attorney’s fees.

The judgment of June 28, 1967, is affirmed. The judgment of August 25, 1967, denying the motion to vacate the judgment of June 28, 1967, for a change of custody and other relief is affirmed. The judgment of August 25, 1967, denying the petition for attorney’s fees is reversed and the cause remanded for a hearing thereon.

Affirmed in part, reversed and remanded in part.

McCOEMICK and ENGLISH, JJ., concur.


author: STOUDER, J.

text:
    Phyllis J. Ullman, Individually and as Executor of the Will of Maurice J. Ullman, Deceased, Plaintiff-Appellee, v. Wolverine Insurance Company, Defendant-Appellant.
    Gen. No. 68-34.
    Third District.
    February 6, 1969.
    Rehearing denied March 5, 1969.

      Reidy, Katz, McAndrews, Durkee and Telleen, of Rock Island, for appellant.
    Eagle and Eagle, of Rock Island, for appellee.
   STOUDER, J.

Plaintiff-appellee, Phyllis Ullman, executor of the estate of Maurice Ullman, commenced this action for declaratory judgment in the Circuit Court of Rock Island County seeking a determination that a provision in an insurance policy issued by defendant-appellant, Wolverine Insurance Company, was void. The trial court by its judgment declared such provision void and the insurance company has appealed.

The facts are brief and undisputed. On January 23, 1967, Maurice Ullman sustained injuries and later died therefrom as a result of an automobile collision between his automobile and one operated and owned by an uninsured motorist. The deceased was at the time of the collision, an employee acting within the scope of his employment, and benefits under the Workmen’s Compensation Act in the amount of $14,000 were either paid or payable.

At the time of the collision there was in effect an automobile liability policy issued by the defendant, Wolverine in favor of the deceased. Such policy included uninsured motorist coverage with liability limited to $10,000 per person. With respect to the uninsured motorist coverage provision, the policy provided that its liability with respect thereto should be reduced by any amounts paid or payable under a Workmen’s Compensation Act. It is the latter provision which is the source of this litigation.

Plaintiff, in her complaint for declaratory judgment, alleged that the provision permitting the deduction of workmen’s compensation benefits was void because if given effect it would reduce the amount of coverage under the uninsured motorist coverage provisions to less than required by statute and hence was violative of the statute. The trial court agreed with plaintiff and declared the provision invalid from which judgment the defendant insurance company has appealed.

The sole question before us is whether the provision permitting the deduction of workmen’s compensation benefits is void because it violated Ill Rev Stats 1965, c 73, § 755a. An examination of the statute reveals no specific language either prohibiting or authorizing the deduction in question. It also appears that the question presented is one of first impression, our attention not having been called to any Illinois authorities dealing with the precise issue here involved.

We believe the meaning of the Statute must be determined from its purpose and intent. Consequently, the provision in question may not be deemed valid merely because it is not prohibited and conversely it may not be deemed invalid merely because it is not authorized.

At this time there can be little doubt concerning the reason and necessity for legislative interest and concern in the financial aspects of motor vehicle ownership and operation. Ill Rev Stats 1965, c 951/2, § 7-200, et seq., commonly known as the Financial Responsibility Act, represents an effort by the legislature to encourage and promote the availability of financial resources to compensate persons injured as the result of the ownership or operation of motor vehicles. It adopted the requirement of liability insurance as one of the principal means of achieving such goal. The Financial Responsibility Act does not purport to include all of those circumstances wherein injury may result from the ownership or operation of a motor vehicle. To provide protection to some extent against uncovered hazards the insurance industry evolved the uninsured motorist protection. The legislature has encouraged and promoted the use of uninsured motorist coverage to the point where it is now mandatory in motor vehicle liability policies. Such legislation recognizes uninsured motorist coverage as a practical means for extending the availability of financial resources to compensate for injuries resulting from the ownership or operation of a motor vehicle. Uninsured motorist coverage is by its nature complementary to the requirements of the Financial Responsibility Act. It is not applicable directly to the owner or operator causing the injuries as is the Financial Responsibility Act. Indeed the minimum limits of uninsured motorist coverage required by Ill Rev Stats 1965, c 73, § 755a, are described by reference to Ill Rev Stats 1965, c 951/2, § 7-203.

We believe it follows from the foregoing observations, that the purpose of Ill Rev Stats 1965, c 73, § 755a, is to require that a minimum amount of insurance be available to an injured insured which would place such injured insured in substantially the same position he would have occupied had the offending party complied with the minimum requirements of the Financial Responsibility Act. (See Tindall v. Farmers Automobile Management Corp., 83 IllApp2d 165, 226 NE2d 397 and other cases cited therein.) Indeed, the same principle is announced in Peterson v. Farm Mut. Automobile Ins. Co., 238 Ore 106, 393 P2d 651 (1964), and Standard Acc. Ins. Co. v. Gavin (Fla), 184 So2d 229 (1966), principally relied upon by plaintiff and which we shall discuss later.

In order to determine whether giving effect to the workmen’s compensation deduction provision affords the insured less protection than he would have enjoyed if the third-party tort-feasor had the minimum required liability insurance, it is necessary to consider certain aspects of workmen’s compensation payments. Ill Rev Stats (1965), c 48, § 188.5(b), (Workmen’s Compensation Act) provides in substance that an employee receiving benefits under the Act is required to reimburse the employer (or compensation carrier) from any recovery from a third-party tort-feasor, a lien being provided in favor of the employer to aid in the securing of such reimbursement. An injured employee is therefore entitled to retain that portion of a recovery from a third-party tortfeasor (or his liability carrier) which exceeds the benefits received under the Workmen’s Compensation Act. Thus in the instant case, if the third-party tort-feasor had been covered by minimum required liability insurance ($10,000) the employer would be entitled to reimbursement in the amount of $10,000 and the employee’s recovery would remain the amount of his workmen’s compensation benefits, $14,000.

On the other hand, both parties concede there is no reimbursement obligation with respect to amounts received or paid under uninsured motorist coverage. In the instant case if the deduction of workmen’s compensation benefits is invalid and therefore not applicable, the plaintiff’s net recovery would be $24,000, i. e., $14,-000 workmen’s compensation benefits plus $10,000 uninsured motorist coverage benefits. If the deduction for workmen’s compensation benefits is valid and applicable then nothing would be payable under the uninsured motorist coverage since the benefits received exceed the limits of the policy and the plaintiff would remain with a net recovery of $14,000, the amount of the workmen’s compensation benefits.

Thus it can be seen that if the deduction of workmen’s compensation benefits is given effect, the injured party’s net recovery is the same as he would have received had the third-party tort-feasor carried the minimum amount of required liability insurance. To the extent that workmen’s compensation benefits have been received, the obligation of reimbursement exists regardless of the amount recovered or the total damages sustained by the injured employee.

This brings us to the two cases relied upon by the plaintiff cited above which held workmen’s compensation benefit deductions invalid because violative of compulsory minimum uninsured motorist protection limits. The pivotal issue in the Oregon case, supra, was the Oregon statute regarding reimbursement to the employer of workmen’s compensation benefits. In Oregon an injured employee is required to reimburse his employer only sixty percent of any recovery from a third-party tort-feasor. Thus, if as provided in uninsured motorist provisions, workmen’s compensation benefits were deducted in full, the insured would receive substantially less than he would have received had the third-party tort-feasor been insured. The Court therefore concluded that because of such difference in position the deduction provision did violate the minimum limit requirement.

Although Standard Acc. Ins. Co. v. Gavin, supra, does not discuss Florida’s workmen’s compensation reimbursement statute, Florida like Oregon, does not require one hundred percent reimbursement of workmen’s compensation benefits. Florida permits the division of any recovery from a third-party tort-feasor in accord with equitable considerations by the court. (See London & Lancashire Ins. Co. v. Fairfield (Fla App, 2nd Dist), 132 So2d 459.) Again in Florida it may be said that giving effect to the workmen’s compensation benefit deduction would place the insured in a substantially less advantageous position than he would have occupied had the third party been insured.

Since Illinois requires one hundred percent reimbursement of workmen’s compensation benefits received, it follows that conclusions based on different reimbursement provisions are not controlling. They do, however, illustrate the principle to be applied and are harmonious with our conclusion that the deduction of workmen’s compensation benefits provision is valid because its effect places the insured in an equivalent position to that which he would have occupied had the tort-feasor been insured with minimum coverage.

For the foregoing reasons the judgment of the Circuit Court of Eock Island County is reversed.

Judgment reversed.

ALLOY, P. J. and CULBEETSON, J., concur.


author: ME. PEESIDING JUSTICE ABEAHAMSON

text:
    Judith Sell, Individually, and as Parent and Guardian of Traci Sell, a Minor, and Linda Seibel, Plaintiffs-Appellants, v. John Vlahos, Defendant-Appellee.
    Gen. No. 68-77.
    Second District.
    February 6, 1969.

      James A. Thompson, of Chicago, for appellants.
    Caldwell, Berner and Caldwell, of Woodstock, for appellee.
   ME. PEESIDING JUSTICE ABEAHAMSON

delivered the opinion of the court.

This is an appeal from the Circuit Court of McHenry County. The action was one for personal injuries and the jury returned verdicts in the amount of $15,000 each in favor of appellee, John Vlahos, and his wife, Linda Vlahos. The appeal is from the refusal of the trial court to direct a verdict in favor of the appellants, Judith Sell, Traci Sell and Linda Seibel, and for failure to set aside the verdicts entered against them or to grant them a new trial.

On the morning of February 7, 1965, Judith Sell, accompanied by her daughter, Traci, and her sister, Linda Seibel, was driving north on Route 47 on the outskirts of Woodstock, Illinois, at approximately 10 o’clock in the morning. The weather was extremely foggy. John Vlahos and his wife, Linda, were traveling west on Bypass 14 approaching the point where it intersects with Route 47 on their way to Wisconsin. There are eight stop and go lights protecting this intersection. Each of the highways are two lanes in width until the approach to the intersection, where they widen to four lanes each. The collision occurred in the northeast quadrant of the intersection. The front end of the Sell car had struck the left side of the Vlahos car head-on. After the impact the Vlahos car veered off northwest, coming to rest some 206 feet from the point of impact. The Sell car traveled 96 feet from the point of impact. The roadways were both wet. John Vlahos testified that as he approached the intersection it was very foggy and that he could see approximately 300 feet ahead.

Both parties testified that they entered the intersection on the green light. Both parties claimed they were going at a relatively low rate of speed. On the day after the accident, John Vlahos, while under heavy sedation in the hospital, made a statement to a police officer which in some respects varied from his testimony at the trial. On the day of the accident, Judith Sell made a statement to a police officer which was inconsistent with her testimony at the trial. She was also in some measure impeached on certain aspects of her testimony at the trial by statements she made during discovery depositions.

Judith Sell filed a counterclaim individually and as guardian of her daughter for personal injuries suffered by them. She was joined as a counterplaintiff in this suit by Linda Seibel. The jury returned verdicts of $15,000 each in favor of the Vlahos on the original corn-plaint and denied relief for the counterclaimants. These verdicts in favor of the Vlahos were settled and all costs paid.

On this appeal, appellants complain that the trial court in denying appellants’ motion for a new trial, incorrectly applied the standard set down in Pedrick v. Peoria & Eastern R. Co., 37 Ill2d 494, 229 NE2d 504; secondly, that all of the evidence when viewed in its aspects most favorable to appellee, so overwhelmingly favored appellants, that the verdict could not stand; and finally, it is urged that since the verdict is against the manifest weight of the evidence, this court on review should reverse the trial court and order a new trial.

In the Pedrick case, supra, in considering the standard to be applied to situations involving directed verdicts or judgments notwithstanding the verdict, the court at p 510 stated that the rule should be:

“. . . verdicts ought to be directed and judgments n. o. v. entered only in those cases in which all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand.”

Appellants contend that the trial judge applied this rule to his determination of whether or not a new trial should have been granted. We cannot agree with this contention. The court in its memorandum decision applied the Pedrick rule to that portion of appellants’ post-trial motion wherein they moved for a judgment notwithstanding the verdict. We interpret the memorandum of the court below as holding that, insofar as the defendants in their post-trial motion moved for a judgment notwithstanding the verdict, it could not hold that the evidence so overwhelmingly favored the Sells and Seibel that the verdicts must be set aside and judgment entered for the appellants. We further understand the memorandum decision as turning then to whether the appellants should be granted a new trial. It pointed out that the real issue in this case was the credibility of the witnesses and the probability of their testimony. The trial judge stated that he could not categorically state that he would have reached the same verdict as the jury. He pointed out that while there was some evidence that the testimony of Vlahos had been impeached by a statement he gave to the investigating officer, on the other hand the testimony of Judith Sell had been impeached, not only by a statement she gave to the investigating officer, but by depositions she had given. He also pointed out that a physical fact, that is, that the Sell car struck the Vlahos car head-on in the center of the Vlahos car, in the court’s opinion tended to support arguments in favor of the jury’s verdict. He therefore declined to grant a new trial.

The matter of granting a new trial is within the sound discretion of the trial judge. The presiding judge in passing upon the motion for new trial has the benefit of his previous observation of the appearance of the witnesses, their manner in testifying, and of the circumstances aiding in the determination of credibility. The trial judge is in a better position than a court of review to weigh the evidence. The allowance or refusal of the motion is largely within the discretion of the trial court. It requires much more for this court to set aside a verdict and judgment than is required of the trial judge. Tihay v. Aurora City Lines, 79 Ill App2d 107, 113, 114, 223 NE2d 171; Morelia v. Melrose Park Cab Co., 65 Ill App2d 175, 181-183, 212 NE2d 106.

There is a substantial conflict on the material facts in this case. Both drivers claimed they entered the intersection on a green light. And, as the trial court indicated both drivers were impeached in part. Upon these conflicting versions of fact, it is peculiarly within the province of the jury to determine who was negligent and we cannot say that the verdicts were contrary to the manifest weight and accordingly the judgment entered thereon is affirmed.

Judgment affirmed.

MORAN and SEIDENFELD, JJ., concur.


author: MR. PRESIDING JUSTICE SULLIVAN

text:
    People of the State of Illinois, Plaintiff-Appellee, v. William A. Purnell, Defendant-Appellant.
    Gen. No. 51,790.
    First District, Third Division.
    February 6, 1969.

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

delivered the opinion of the court.

This is an appeal from a judgment of the Circuit Court of Cook County, Criminal Division, finding the defendant, William A. Purnell, guilty of the crime of robbery. The case was tried before the court without a jury, and the defendant was sentenced to a term of two to four years in the Illinois Penitentiary.

The defendant contends: 1) that the trial court erred in excluding certain evidence relative to the identification of the accused; 2) it was error to introduce the defendant’s photograph bearing the legend “Police Department, Maywood, Illinois, 3458”; 3) that the defendant was not proven guilty beyond a reasonable doubt.

At approximately 6:00 p. m. on the evening of December 10, 1965, the robbery victim, Ann Chalifoux, was walking toward her home in the Village of Westchester when she was accosted from behind and thrown to the ground. The attacker took her purse and fled, whereupon Miss Chalifoux went home, called the police and described her attacker.

At about 7:15 that evening, Miss Chalifoux accompanied one Officer Marasco to the police station at which time she viewed 30 to 40 photographs and from these, she picked out a photograph of the defendant but was not sure of her identification as she stated to the police “this could possibly be the fellow.” This photograph showed the defendant with a moustache, but Miss Chalifoux did not remember if her attacker wore a moustache when she gave her original description. When Miss Chalifoux aided the police in constructing a composite drawing of her attacker, the composite did not include a moustache.

On the evening of December 17, 1965, the victim positively identified the defendant in a police showup, and after this identification, the defendant was placed in the custody of the Westchester police.

Two police officers, Officer Pulia and Officer Marasco, testified that on December 19, 1965, the defendant told them while in custody that he was the man they were looking for and that he was the only participant in the robbery and that he had thrown the purse over a bridge in Broadview. Officer Pulia testified that on December 10, 1965, the victim’s purse had been returned to him by a Broadview police officer. The police also stated that the defendant later retracted his admissions and refused to sign a written statement admitting his guilt. Both officers admitted to making out a police report on December 20, 1965, in which was contained the alleged admissions made by the defendant to these officers. Neither officer signed or initialled the report but both admitted that they coauthored the report.

The defense offered the testimony of three witnesses to establish an alibi defense. The witnesses’ testimony accounted for the defendant’s whereabouts from about Four p. m. to Eleven p. m. on the evening of December 10, 1965. The State attempted to rebut the alibi defense and to impeach the alibi witnesses by offering the testimony of Judith Klink who testified that on that evening at about 5:40 p. m. she was accosted in the vestibule of her apartment building at 506 S. Cuyler Avenue in Oak Park, Illinois. She identified her attacker as the defendant and testified that he was dressed in a dark olive jacket, with a hood that had fur around its edges.

The defendant argues that the admission of the police photograph of the defendant from which the victim made a tentative identification was prejudicial error since the photo should only have been admitted with the other photos viewed by the victim. The record indicates that defense counsel’s objection to the photo’s admission was on the sole ground that it bore the legend evidencing a prior arrest. No objection was made regarding the absence of the other photos viewed by Miss Chalifoux. An objection to evidence, based upon a specific ground, is a waiver of objection on all grounds not specified. (People v. Washington, 23 Ill2d 546, 179 NE2d 635.) Hence, it is unnecessary to discuss the merits of this contention raised for the first time on appeal. Moreover, the defendant’s contention is without merit. A photograph of an accused from which a complainant makes an identification is a proper means of identification and can be properly admitted into evidence. (People v. Maffioli, 406 Ill 315, 94 NE2d 191.) The defendant is not correct in urging that there was an improper exclusion of evidence. The State offered one photograph. The defense offered none. The defendant could have had these photos admitted into evidence during the presentation of his case in order to cast doubt upon the weight to be accorded such evidence.

The defendant next assigns as error the admission of the police photograph of the defendant bearing the legend, “Police Department, Maywood, Ill. 3458.” The instant case is readily distinguishable from People v. Williams, 72 Ill App2d 96, 218 NE2d 771, in which the court held that it was improper to admit a photograph bearing the legend “Jackson State Prison” since the defendant did not testify and since the photo served to show that the defendant had been convicted of a crime. In the case at bar the legend complained of does not indicate a conviction of a crime. In People v. Maffioli, supra, the Supreme Court held that admission of photos of the defendant each bearing the legend “Police Dept., Rockford, Ill. 6874 John Maffioli 8-26-49” was proper since the photos were not offered into evidence to show an arrest for another offense but were offered for the relevant purpose of identification. The Maffioli case is controlling in this case, and thus we find the defendant’s argument to be without merit.

In arguing that he was not proven guilty beyond a reasonable doubt, the defendant attempts to characterize this case as one in which his conviction rested solely upon the identification by Miss Chalifoux which the defendant contends was doubtful, vague and confusing. The defendant emphasizes his alibi defense which he claims should not be disregarded since the identification testimony is allegedly vague and uncertain.

This court cannot accept such a characterization of the case before us. The record indicates that the defendant did initially make an oral admission of his guilt to the two police officers. The defendant asserts that the proof of an oral admission was so weakened by impeachment on cross-examination of the two police officers that it hardly merits consideration. The attempted impeachment referred to was directed at certain alleged alterations in copies of the written police report which contained a report of the oral admission. The defendant seemingly ignores the fact that Officer Pulia testified that the defendant admitted the crime to him. The defendant also ignores the fact that Officer Marasco corroborated Pulia’s testimony. Any alleged alterations made in the report by parties unknown does not make the testimony of both officers relative to the oral admission unfit for consideration but merely goes to the weight to be given such testimony. The probative value of the admission is strengthened by the fact that the purse was discovered in the vicinity in which the accused admitted discarding it.

It should also be noted that Judith Klink’s testimony, if believed by the trial judge, would clearly rebut the testimony of the defendant’s three alibi witnesses. Miss Klink significantly had described the defendant as wearing a dark olive green jacket with a hood which had black fur around the edge. This description was identical to Miss Chalifoux’s description of the clothes worn by her attacker. The defendant further asserts that Miss Klink’s testimony is inherently incredible since the distance between the two offenses was too great to have been committed within twenty-five minutes of each other. Neither witness was certain as to the exact time at which the robberies occurred and both gave approximations as to the time of the occurrence. In addition, the record indicates that the distance between the Village of Oak Park and the Village of Westchester is about three to four miles and that both are served by the Eisenhower Expressway. This court cannot conclude that the testimony of Judith Klink was not entitled to any weight by the trier of fact.

The defendant contends that the manner of the one-man showup from which the victim positively identified the defendant was so suggestive as to be entitled to no weight. It must be remembered that the defendant had previously been tentatively identified from his photograph and that the personal view was to ostensibly confirm this identification. The Supreme Court said in People v. Boney, 28 Ill2d 505, 509, 192 NE2d 920:

“However, ‘There is no requirement in the law that an accused person must be placed among a group of persons for the purpose of testing the ability of a witness to identify him as the guilty person,’ (People v. Crenshaw, 15 Ill2d 458, 464), and the manner ‘does not render the identification incompetent, but only goes to the weight of the evidence.’ (People v. Mikka, 7 Ill2d 454, 458-9; People v. Washington, 26 Ill2d 207, 210.)”

It is alleged by the defendant that the victim’s identification of the defendant was vague and uncertain. Great stress is placed upon the fact that the victim was not sure whether the defendant had a moustache even though she admitted to viewing him at close range during the attack. The defendant also emphasizes the tentative nature of the identification made from the defendant’s photograph. The fact that the witness made only a tentative identification must be viewed together with the fact that she positively identified the accused when she viewed him in police custody. It is certainly not unusual for a witness to have doubts as to a party’s identity when confronted with a photograph of unknown age or quality. However, it is somewhat unusual that the victim would not remember whether her attacker wore a moustache on the evening in question. In People v. Marshall, 74 Ill App2d 483, 221 NE2d 133, and in People v. Kincy, 72 Ill App2d 419, 219 NE2d 662, robbery convictions were reversed due to the identifying witness’ failure to remember whether the accused wore a moustache at the time of the robbery. However, these cases and other cases cited by the defendant in which convictions were reversed on the ground of vague and uncertain identification are all distinguishable from thq case at bar. In the cited cases, the convictions were predicated upon eyewitness identification with little or no surrounding circumstantial evidence. In the instant case, the testimony of Officers Pulia and Marasco and of Judith Klink dispel the uncertainties surrounding Miss Chalifoux’s identification. The credibility of these witnesses and the weight to be given their testimony was to be determined by the trial judge. On the strength of the evidence presented by the record, we find no reason to disturb the determination by the trier of fact.

Affirmed.

SCHWARTZ and DEMPSEY, JJ., concur.


author: MR. JUSTICE DEMPSEY

text:
    People of the State of Illinois, Plaintiff-Appellee, v. George Garkus, Defendant-Appellant.
    Gen. No. 52,182.
    First District, Third Division.
    February 6, 1969.
    Gerald W. Getty, Public Defender of Cook County, of Chicago (Saul H. Brauner and James J. Doherty, Assistant Public Defenders, of counsel), for appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and John M. Goldberg, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE DEMPSEY

delivered the opinion of the court.

The defendant, George Garkus, was found guilty of theft, placed on probation for five years and ordered to make restitution of $350 at the rate of ten dollars per month. A year later a rule to show cause why his probation should not be revoked was served upon him and a hearing was held.

At the revocation hearing it was disclosed that three months after Garkus was placed on probation he was indicted on four charges of armed robbery and theft; that six months after receiving probation he was found guilty of theft and was sentenced to thirty days in the House of Correction; that he had not complied with the restitution order, and that there was pending against him a charge of possessing a hypodermic needle. When the hearing was completed the court vacated the probation and sentenced him to from three to ten years in the penitentiary.

The defendant complains that the sentence imposed upon him was too severe and not commensurate with the crime for which he had been convicted. He prays that the sentence be reduced to two to five years and that it be made to run concurrently with the sentences he received on the four indictments for armed robbery and theft mentioned above.

The armed robbery and theft cases are not before us and we know neither the facts nor the sentences imposed. We have no jurisdiction over them and have no authority to correlate the present case with them. We do have the authority to reduce the sentence in the case under consideration (Supreme Court Rule 615 (b) (4)) but we do not believe a reduction is merited.

The punishment given the defendant was within the limits prescribed by the legislature (Ill Rev Stats 1965, c 38, par 16-1) and was imposed in accordance with the statute governing violations of probation (Ill Rev Stats 1967, c 38, par 117-3 (d)). The trial court had placed the defendant on probation despite what was described as a “substantial criminal background.” The court had warned the defendant that if the conditions of probation were violated it would not be sympathetic to him. Despite the court’s leniency, he broke the terms of his probation by continuing to engage in criminal activities. The punishment imposed by the trial court was within its discretion and was fully warranted.

Affirmed.

SULLIVAN, P. J. and SCHWARTZ, J., concur.


author: JUSTICE ALLOY.

text:
    Thomas Hammen, d/b/a Hammen Electric Company, Plaintiff, v. Hansen & Werhane, Inc., Defendant, Third-Party Plaintiff and Appellee, v. Fidelity & Deposit Company of Maryland, Third-Party Defendant, Appellant.
    Gen. No. 68-35.
    Third District.
    February 7, 1969.
    James L. Waring, of Ottawa, and Dent, Hampton & Doten, of Chicago, for appellant; White & Sinon, of Ottawa, for appellee.
   Opinion by

JUSTICE ALLOY.

Not to be published in full.


author: STOUDER, J. ALLOY, J.,

text:
    In the Matter of the Estate of Richard Barnes Stith, Deceased. The University of Illinois, the University of Nebraska, the University of Southern California, California Institute of Technology and Shriners Hospital for Crippled Children, as Beneficiaries of a Testamentary Trust, Petitioners-Appellees, v. Signa Marie Stith, Respondent-Appellant.
    Gen. No. 68-24.
    Third District.
    February 10, 1969.

      McDermott, Will & Emery, of Chicago, Belli, Ashe, Gerry & Ellison, of San Francisco, California, and Heyl, Royster, Voelker & Allen, of Peoria, for appellant.
    Richard H. Radley, Davis, Morgan & Witherell, and Arthur B. Copeland, of Peoria, for appellees.
   STOUDER, J.

Appellees, University of Illinois, University of Nebraska, University of Southern California, California Institute of Technology and Shriner’s Hospital for Crippled Children, filed their petition in the Circuit Court of Marshall County seeking to vacate three orders entered by the trial court in probate proceedings respecting the estate of Richard Barnes Stith. The three orders sought to be vacated were successive orders extending the period during which the surviving spouse, Signa Marie Stith, appellant, could elect to renounce the will of her husband. The trial court vacated the last two extensions of time, from which orders the surviving spouse has appealed, and declined to vacate the first of such extensions, from which order appellees have cross appealed.

Richard Barnes Stith died testate in September, 1964, leaving surviving him a son and a widow, the appellant herein. His will was duly admitted to probate on November 9, 1964. The bulk of his estate was left to a testamentary trust from which his widow and son were to receive $6,000 each per year, the residuary beneficiaries being appellees.

On August 30, 1965, appellant filed her verified petition requesting an extension of the period of time during which she could file her renunciation and on the same day an order was entered extending such time to February 5, 1966. The petition alleged that there was pending in Nebraska, a petition for the discovery of assets and claims totaling $29,000 which had not been allowed, all of which affected her share in the estate.

On February 3, 1966, a second verified petition for the extension of the renunciation period was filed and pursuant to this petition the period was extended to February 5,1967. The petition alleged that litigation was pending affecting the interest of the surviving spouse and referred to litigation in Nebraska and Illinois as well as the discovery petition. It appears that the discovery petition had in fact been dismissed by stipulation in December, 1965, and that the claims totaling $29,000 had been allowed on January 6, 1966, with the consent of the executor.

A third verified petition for extension of time to file her renunciation was filed by appellant on January 5, 1967. This petition alleged that a will construction action had been filed in the circuit court in September, 1966. Pursuant to this petition the period was extended until 90 days after the determination of such action.

Appellees were given notice by mail of the hearing on the admission of the will to probate. None of such appellees filed its appearance in the proceeding or otherwise participated therein prior to August 27, 1967. Appellant did not give notice to any of the appellees of the filing of any of the three applications for extension of time. Notice was given to Jefferson Trust and Savings Bank, executor, of the first application and the executor consented to the two subsequent extensions.

On August 27, 1967, appellees filed their petition which is the subject of this appeal. The petition was filed in the pending probate proceeding and sought to vacate the three orders of extension. The petition sets forth the contents of the three applications for extension of time, the procedure involved and the orders entered pursuant thereto. In particular, the petition alleged that at the time of the first two extensions, no litigation was then pending affecting the share of the surviving spouse because claims filed in the estate did not constitute such litigation and even if so considered, such claims had been allowed by consent prior to the granting of the second extension. Further, the only proceeding pending in Nebraska was ancillary administration of the estate and hence there was no pending litigation in Nebraska affecting the widow’s share. The petition asserts that the applications for extension of time were false and fraudulent and therefore the orders entered pursuant thereto were void for want of jurisdiction. It should be noted that the petition does not assert as grounds for relief, any impropriety in the manner of giving notice, it being conceded that notice to the appellees was not required. Nor do appellees in their petition seek any relief based on lack of notice to them.

At the hearing on the petition the attention of the court was directed to the record concerning the filing and allowance of claims. In addition, there was testimony to the effect that the only proceeding in Nebraska was the ancillary administration and the only proceedings in Illinois were the administration of the estate of Richard Barnes Stith and the will construction case filed in September, 1966.

The trial court, in a detailed memorandum opinion, found that claims filed in a probate proceeding but unallowed did constitute pending litigation affecting the share of the surviving spouse. It further found that claims allowed less than thirty days before application for extension of time did not constitute such pending litigation and that ancillary administration did not constitute such litigation. The trial court, by its order entered in accordance with such opinion, declined to set aside the first order but did set aside the second order on the grounds that it had no jurisdiction to enter such order and also vacated the third order because it had been entered during a period of time invalidly extended.

Appellant on this appeal argues that each of the extensions of time was properly granted and that in any event the allegations of appellees’ petition are insufficient to support the relief sought and granted. Accordingly the trial court properly declined to vacate the first order of extension but erred in vacating the second and third orders of extension.

On the other hand, appellees argue that the allegations in each of the first two petitions were false and fraudulent and hence the orders entered pursuant thereto were void because the trial court lacked jurisdiction to enter them. Accordingly, appellees argue the trial court properly vacated the second extension order but erred in declining to vacate the first.

The statute upon which the extensions of time were predicated is chapter 3, section 17, 111 Rev Stats 1965, which provides, “In order to renounce a will the testator’s surviving spouse shall file at the time and place provided for herein a written instrument signed by the surviving spouse and declaring the renunciation. The time of filing the instrument shall be as follows: (a) within 10 months after the admission of the will to probate or (b) within such further time as may be allowed by the court if, within 10 months after the admission of the will to probate or before the expiration of any extended period, the surviving spouse files a verified petition therefor setting forth that litigation is pending that affects the share of the surviving spouse in the estate. The place of filing the instrument shall be in the court in which the will was admitted to probate. The filing of the instrument is a complete bar to any claim of the surviving spouse under the will. As amended by act approved Aug. 24,1965.”

There would appear to be no disagreement between the parties concerning the general principles relating to renunciation, namely, that the benefits to which a surviving spouse may be entitled under chapter 3, section 16, Ill Rev Stats 1965, are only available after renunciation of the decedent’s will has been accomplished in accord with the provisions of section 17. Pearce v. Pearce, 281 Ill 194, 118 NE 84, and Schaffenacker v. Beil, 320 Ill 31, 150 NE 333. However, there is disagreement in the interpretation and application of section 17, subsection (b), chapter 3, Ill Rev Stats 1965, and in this regard we note that neither party has called to our attention any Hlinois cases interpreting and applying this subsection.

Before considering the statutory provisions, our initial consideration must be directed at the basic assertion of appellees’ petition, namely that the orders of extension were void because of the trial court’s lack of jurisdiction to enter them. This issue has been partially obscured in the arguments of the parties and in the memorandum of opinion of the trial court because of the procedure invoked by appellees. Although appellees’ petition does not so allege, both the parties and the trial court appear to have treated such petition as having been filed under chapter 110, section 72, Ill Rev Stats 1965, dealing with relief from final judgments more than 30 days after their entry. The arguments of the parties have been directed principally to the applicability or nonapplicability of equitable principles to the relief sought. Appellees have directed our attention to section 72, subsection (7) of chapter 110, Ill Rev Stats 1965, which provides, “Nothing contained in this section affects any existing method to procure that relief” and assert as a conclusion therefrom, that judgments which are void because of want of jurisdiction, may be collaterally attacked at any time and equitable principles which might otherwise be applicable to section 72 proceedings are not therefore applicable. However, such conclusion assumes without supporting argument, that the orders of extension by the trial court were void because of lack of jurisdiction. Assuming for purposes of argument that the extension orders were based on false allegations and that the procedure invoked by appellees was appropriate to assert the invalidity of such orders, the initial question to be determined is whether the orders of extension were void because of lack of jurisdiction or merely erroneous.

The power and authority of a court to hear controversies of the general class involved may be said to relate to jurisdiction of the subject matter and the power and authority to hear a particular controversy may be said to relate to jurisdiction of the parties to a controversy within the general power and authority of the court. Ward v. Sampson, 395 Ill 353, 70 NE2d 324. It follows that the propriety of the judgment, i. e., absence of error, does not relate to the jurisdiction of the court. In Ward v. Sampson, supra, the court affirmed a trial court’s decree ordering a conveyance of real estate against the collateral attack of want of jurisdiction in the absence of any allegation or proof of special equities therein as required by statute. The court held that the decree, although clearly erroneous, was entered by a court having jurisdiction of the controversy and its decree was therefore not subject to collateral attack.

The general principle is that after 30 days from its entry, a judgment is not subject to collateral attack or impeachment except for want of jurisdiction to enter such judgment, or that the jurisdiction was invoked through fraud, excusable mistake or duress. The order of a trial court in a probate proceeding is like any other judgment and a final order in a probate proceeding is entitled to all the attributes of finality as is accorded other judgments. Mitchell v. Mayo, 16 Ill 83; Barnard v. Michael, 392 Ill 130, 63 NE2d 858.

In the instant proceeding, the trial court had jurisdiction of the subject matter, namely general jurisdiction to hear probate matters, and it had jurisdiction of the parties, i. e., verified application for extension and appropriate notice as required. We believe this conclusion is supported by Barnard v. Michael, 392 Ill 130, 63 NE2d 858. In Barnard, supra, an executrix applied to the court for leave to sell real estate to pay debts of the estate alleging that such sale was necessary because of an insufficiency of personal assets to pay the claims allowed, or to be allowed, against the estate. Notice of hearing on such petition was given by publication, and sale of the real estate was authorized. Sale of the real estate took place more than 30 days after the entry of the order authorizing the sale and upon application of the executor for approval of the sale, the beneficiaries of the estate objected to such approval because of lack of jurisdiction of the court to authorize the sale by its previous order. The objectors alleged among other things, that the sale to pay debts was unnecessary because one of the claims against the estate was based on a forged note and that the allowance of the widow’s award was excessive. On appeal the court held the trial court had jurisdiction to enter the order authorizing the sale of the real estate and the objections thereto, whether true or not, made more than 80 days after the entry of the order complained of did not affect the jurisdiction of the court.

This brings us to a consideration of the second general basis for a collateral attack or impeachment of a judgment for want of jurisdiction, namely fraud, excusable mistake or duress. In the first place, characterizing facts or conduct as “fraudulent,” is a conclusion and must be supported by allegations of fact from which such conclusion is warranted. In the second place, fraud does not mean that the party making such assertion had a defense to the original action upon which the judgment was based, or that such judgment was erroneous. To constitute fraud it must be shown not only that the party asserting such fraud had a right which he failed to assert in the former proceedings, but that he was deprived of an opportunity to present such right or defense by improper conduct of the party securing such judgment. City of Chicago Heights v. Public Service, 345 Ill App 393, 103 NE2d 519; In re Luer’s Estate, 348 Ill App 324, 108 NE2d 792. In other words, the trial court entering the original judgment is said to have “colorable jurisdiction,” the judgment having been secured by conduct which deprived the opposing party of an opportunity to present claims which would have prevented the entry of the judgment complained of. In City of Chicago Heights v. Public Service, supra, which is illustrative of the general principle applicable, it was shown that the city, the defendant in the original action giving rise to the judgment sought to be vacated, had a defense to such action but that such defense was not asserted because of collusion between the plaintiff and the attorney for the city. From the foregoing case as well as the cases cited therein, it may be concluded that neither error in the judgment nor the existence of a defense to the claim upon which such judgment is based, constitute fraud sufficient to invalidate the jurisdiction of the court.

When we consider the allegations of the appellees in this case it is clear that even if such allegations are true they at best warrant the conclusion that appellees might have had a defense to the applications for extensions of time. Such allegations present no facts from which it can be inferred that the jurisdiction of the court was invoked as the result of any improper conduct of appellant which deprived appellees of the opportunity of asserting any claim in opposition to the request of appellant.

It is therefore our conclusion that the petition of appellees is insufficient to show any want of jurisdiction of the trial court to enter the extension orders. In view of our conclusion it is unnecessary to consider the propriety of the extension orders and although we have assumed, for the purpose of clarifying the issues, that litigation affecting the share of the surviving spouse might not in fact have been pending this does not mean that we intend thereby to express any opinion with respect thereto.

For the foregoing reasons the judgment of the Circuit Court of Marshall County declining to vacate the first extension order is affirmed, and to the extent that such judgment vacates the second and third extension orders, such judgment is reversed.

Judgment affirmed in part and reversed in part.

SCHEINEMAN, J., concurs.

ALLOY, J., dissents.

ALLOY, J.,

dissenting:

I must respectfully dissent from the majority opinion in this case.

We all recognize that renunciation of the will by the widow was required to be made under section 17 of the Probate Act (1965 Ill Rev Stats, c 3, § 17), within ten months of the time of admission of the will to probate or within such further time as is allowed by the court “if, within ten months after the admission of the will, the surviving spouse files a verified petition setting forth that litigation is pending that affects the share of the surviving spouse in the estate.” Such requirement as to renunciation obviously represents the public policy of the State in requiring that renunciation be made within the ten-month period or within an extended time obtained specifically as set forth in the Act. In the case before us, in the application for the second extension, the verified petition recited that litigation was pending which affects the share of the petitioner specifically as follows:

“ (a) litigation in Nebraska in which the court is being asked to pass upon certain questions which will determine the amount of property owned by decedent at the time of his death.
“ (b) litigation in Illinois in which the court is being asked to pass upon certain questions which will determine the amount of property owned by decedent at the time of his death.”

On the basis of the record in this cause, neither of these assertions were true. The trial court treated the verified petition as a misrepresentation of fact when it was disclosed that the assertions were untrue. It is noted that the beneficiaries in the case were given no specific notice (even though it was not required) and consequently could not be estopped to assert or bring to the attention of the court the issue of fraud or misrepresentation at the first opportunity.

In a situation such as confronted the trial court in the present case, the court was in the position outlined in Remer v. Interstate Bond Co., 21 Ill2d 501, at page 514, 173 NE2d 425, where the court says:

“It is true that where a court has jurisdiction of the parties and the subject matter its judgment is not subject to collateral attack. (Cherin v. The R. & C. Company, 11 Ill2d 447.) This does not mean, however, that a judgment obtained by deception may not be questioned after the expiration of thirty days. If proceedings regular in form are tainted with fraud or coercion, the court is not helpless to grant relief. The legislative policy favoring conclusiveness in the county court’s determination does not displace the higher policy of the law which requires a remedy for every wrong. If the order was obtained by fraud, as petitioner alleges, elementary principles of law require that relief be granted.”

I cannot agree with the majority opinion which in effect says in substance that the court is powerless to vacate an order based on misrepresentation, where it had jurisdiction to enter the order. I feel that this would be a backward step in the procedure to correct orders which have been obtained by fraud or misrepresentation. Section 72 of the Civil Practice Act (1967 Ill Rev Stats, c 110, § 72) was never meant to be limited in that sense. Nor do I feel that there was any “pending” litigation which could have been based on the claims which had been allowed and consented to by the estate. Time for objections by persons in interest had passed and there was nothing to show that the judgments were not conclusive or that there was any right of appeal (as a matter of right) in any party. The circumstance that one of the heirs could have filed a motion to vacate, in my judgment, was not the type of “pending” litigation to which the legislature obviously referred in section 17 of the Probate Act.

I do not believe that the case of Barnard v. Michael, 392 Ill 130, 63 NE2d 858, is authority for the conclusion that the trial court in the instant case had no power to vacate the order granting the second extension. That case involved a sale of real estate to pay debts and the Supreme Court itself (at page 137) pointed out:

“This is not a case where the doctrine of restoration or restitution, which we have mentioned earlier in this opinion, would apply in the event of a reversal. Here, the appellee has not received, by virtue of the decree, benefits of property belonging to appellants. The property sold belonged to the decedent and constituted assets of his estate, available for the payment of debts. The benefits derived from the decree approving the sale will inure to all persons interested in the estate. Neither did it rest within the choice or discretion of appellee whether the decree appealed from should be executed. The purchasers had an absolute right, after the expiration of thirty days from the entry of the decree approving the sale, to demand of the executrix a conveyance of the property purchased .... The situation is not analogous to a case where an appellee, after appeal, of his own volition, executes the judgment or decree appealed from, either by selling property of the appellant under execution or other process issued upon the judgment, or by appropriating to himself property of the appellant erroneously awarded by the decree to appellee.”

The emphasis, therefore, is on the circumstance that the benefit is not obtained by the party guilty of fraud or misrepresentation. In the instant case, the benefit accrues to the party guilty of misrepresentation and there are no innocent third parties, or others who are or would be injured by depriving this party of the benefit of an extension obtained, so far as the record is concerned, by misrepresentation.

I do not believe that a trial court is powerless to set aside such order when the facts relating to misrepresentation are presented to the court and where the only consequence of setting aside such order is to deprive the party guilty of such misrepresentation of certain benefits. Accordingly, I believe that the order of the Circuit Court of Marshall County should be affirmed.