text:
    In the Matter of the Estate of Josephine A. Drisch, Deceased. Richard E. Landau, Petitioner-Appellant, v. Estate of Josephine A. Drisch, Respondent-Appellee.
    Gen. No. 69-19.
    Second District.
    August 26, 1969.

      Snyder, Clarke, Dalziel, Holmquist & Johnson, of Wau-kegan, for appellant.
    Runyard, Behanna, Conzelman, Schultz & O’Meara, of Waukegan, for appellee.
   MR. JUSTICE ABRAHAMSON

delivered the opinion of the court.

Richard E. Landau brings this appeal from an order of the Circuit Court of Lake County that denied his petition to restate heirship and for other relief. In said petition he alleged that he was the natural son of Josephine A. Drisch, deceased, or, in the alternative, that Josephine Drisch had entered into a contract to adopt him and, that in either event, he was her sole heir.

Josephine Drisch died on November 16, 1966, and on November 22 a petition was filed in Lake County by Florence P. Witt wherein she alleged that she was a sister of the decedent and her sole heir. Letters of Administration were issued to a Lake County attorney pursuant to the petition since Florence P. Witt was a resident of New York and an inventory subsequently filed that disclosed assets of approximately $27,000.

On July 6, 1967, Richard Landau filed his petition in the estate wherein he alleged that he was the son and only child of the decedent. After the matter proceeded to trial, the petition was amended to include, in the alternative, that the decedent had entered into a contract to adopt Landau. The hearing proceeded, without a jury, and on January 8, 1968, the trial court dismissed, for insufficient evidence, that portion of the petition wherein Landau alleged he was the son of the decedent and took the alternate proposal under advisement. On July 19, 1968, the trial court filed a lengthy memorandum to the effect that the petitioner failed to prove a contract and on July 30, 1968, entered judgment in favor of the respondent. Post-trial motions were denied and this appeal followed. The petitioner here asserts that the finding of the trial court that he was not the son of the decedent was against the manifest weight of the evidence and that the facts proved an enforceable contract to adopt.

It is stipulated by the parties that the real name of Josephine Drisch was Josephine Polk and it further appears. that she was married to a Claude Devinger on August 8, 1921, in Chicago. In 1934, Josephine obtained a divorce from Claude Devinger in Cook County and apparently never remarried. Devinger is also deceased.

Henry Devinger, a brother of Claude, testified for the petitioner that Claude and Josephine lived in Peoria in. 1922 but moved into his parents’ home in Chicago in the summer of that year with Landau, then a baby of two weeks of age. Shortly after they arrived, Henry was present during a conversation when Josephine informed his mother that the baby had been adopted in Peoria. About one month later, Henry heard Josephine state that the child was her own and that she had taken the boy to an orphanage in Peoria because her mother “would have a fit” if she had learned of the birth. He later heard his brother state that he wanted to adopt the child so that he could be named Claude Devinger, Jr.

Harriet Esposito testified that she had been a friend of the decedent for many years and had first met her in Peoria in 1922. She first saw the child in Chicago in 1923 when Josephine told her “. . . he is my son.” Later, Josephine introduced Harriet to a boarder at her mother’s rooming house named Mr. Richard Landau, a “nice, refined gentleman” many years older than Josephine and told her that he was the father of her child. Harriet also testified that Claude Devinger had stated in her presence that he wished to adopt the boy.

Idabell Devinger testified that she was married to Henry in 1929 and that sometime in 1930 she had a conversation with Josephine who informed her that Landau was her son and that the father had been a boarder in her mother’s rooming house. Idabell also heard both Josephine and Claude state that they wished to adopt the boy so that he could be named Claude Devinger, Jr.

Florence Witt was called as an adverse witness under section 60 of the Civil Practice Act and testified that she first saw Landau in 1922 when she was informed he was taken from an orphanage. She further testified, as had the others, that Josephine always referred to Landau as “son” and that he called her “mother.” Numerous letters of the decedent were also introduced where she referred to Landau as her son.

Although no birth certificate apparently exists in this matter, it appears that Landau was born on June 23, 1922, in Ottawa, Illinois, and left at the Guardian Angel Orphanage in Peoria where he was baptized on June 25, 1922, as Robert Edmund Landau. Although Henry Devinger testified that the boy was taken to Chicago when he was about two weeks old, the orphanage records, including a letter signed by Josephine, indicate that the child had been given to the Devingers in December of 1922.

Landau lived with Josephine until his induction into the Army in June, 1940, although he had been returned to Guardian Angel Orphanage for about six weeks in 1936 and to Our Lady of Mercy Mission in 1940 because of disciplinary problems. After his discharge from the service in 1946, Landau returned to Chicago and lived with Josephine until his marriage. A life insurance policy left by Josephine designated “Richard Landau — son” as beneficiary.

Mildred Schriver testified for the respondent that she had been a neighbor and friend of the Polks and knew Josephine well. In 1933, Josephine told her that she would divorce Devinger except that she was fearful the boy would be returned to the orphanage. Violet Wechelberger testified that she was a cousin and close friend of Josephine and saw her often in 1922 and that she had not been pregnant. Subsequently, Josephine told her cousin that she was unable to adopt the boy because of “legal barriers.”

The orphanage records and files maintained by the Catholic Home Finding Association were admitted into evidence in full. A letter dated November 22, 1923, from the Department of Public Welfare of the State of Illinois to the Association appears therein that states that the child had been given to the Devingers “on trial” and that they had moved from Peoria “in the night leaving a lot of unpaid bills and no address and took the baby with them.” In February, 1924, the Department wrote to the Association that the child should be left with the Devingers temporarily but “that no adoption should be entered.” In 1941, Josephine wrote to the orphanage and stated that “I do not have any of the necessary information to fill out the birth certificate blank and I was wondering if it would be at all possible to secure a baptismal certificate for Richard .... Perhaps it would be possible to contact his sponsors and secure some information.”

With this, and much other evidence before it, the trial court concluded that it was not proven that Richard was the natural son of the decedent. We cannot say that this conclusion was against the manifest weight of the evidence. Henry Devinger was 15 years old when he heard the conversation in regard to Landau’s parentage. Harriet Esposito was the only witness to connect the child with the boarder, Richard Landau, whom she had seen only once in her life, approximately 45 years before her testimony. Although these witnesses testified that Josephine had acknowledged in their presence that Landau was her natural son it was the function of the trial court to weigh that evidence with the other facts before it. The extensive records maintained by the Catholic Home Finding Association, including the reports of numerous interviews with Josephine, do not contain even a suggestion that she was, or claimed to be, Landau’s natural mother although that fact would have been of extreme importance and eliminated her anxiety to keep the boy. At Josephine’s request, the orphanage made several attempts to discover a birth certificate for Landau but met with no success. One notation indicates that the boy had been left at the orphanage by two unidentified policemen shortly after his birth. From the language employed by Josephine in her requests for a certificate, it appears that she possessed no more knowledge of his actual birth than anyone else. Although she called Landau “son” and he called her “mother,” that fact is not surprising since she unquestionably raised the boy from infancy. She named Landau beneficiary of her life insurance as “son” but she also named “Edward Drisch— husband” on another policy although she was never married to him.

It was, of course, the province of the trial court to consider all these details and conflicts, to listen to the witnesses and determine their credibility and draw inferences and conclusions from the evidence presented to it. It is not our function to substitute our judgment for that of the trier of fact unless that judgment is against the manifest weight of the evidence. Harvey v. Lippens, 87 Ill App2d 363, 368, 231 NE2d 613.

We do not feel that the trial court improperly discounted the testimony of the petitioner’s witnesses on the mistaken idea that the propositions that Landau was the natural son of Josephine and that she had contracted to adopt him were wholly inconsistent. Although the memorandum submitted by the trial judge mentions that this inconsistency “definitely” affected the weight of Henry Devinger’s testimony, it does not appear that it was of great importance in his ultimate decision.

The petitioner further urges that the facts disclose that the Guardian Angel Orphanage had entered into an oral agreement with the Devingers to adopt him and that the orphanage fulfilled its part of the agreement by delivering him to them in 1922. He concludes that the agreement was binding on the parties and should have been specifically enforced by the trial court.

The Supreme Court in Weiss v. Beck, 1 Ill2d 420, 427, 115 NE2d 768, also considered the specific performance of a contract for adoption. The court reviewed nine earlier decisions on the same point and found that in only three of those cases were the alleged contracts specifically enforced. In each of the three the “. . . proof included either a written memorandum of the alleged agreement to adopt found among the papers of the deceased foster parents, or the positive testimony of some surviving witness who was present and heard the making of the agreement to adopt.”

In the later case of Monahan v. Monahan, 14 Ill2d 449, 153 NE2d 1, cited by both parties as the leading Illinois case on the point, the Supreme Court explained that it had not intended in the Weiss case to hold that a contract to adopt could not, in any case, be proven by circumstantial evidence. In Monahan, the petitioner had been left by his natural parents with the Monahans when he was two years old and the natural mother paid the Monahans $8 a week for board. In 1926, the father abandoned the family and in 1929 the mother gave her consent to the Monahans for adoption. A note written by Mr. Monahan stated “Gave Teddy to me on this day, Ap. 30, 1929.” Thereafter, the Monahans raised the boy as their own, had him baptized as Edward Monahan and on two occasions attempted to legally adopt him but were frustrated in that purpose because of incorrect advice furnished by their lawyer. The court found that a contract to adopt did exist but adhered to the strict requirements of the earlier cases. In commenting on the Weiss decision, the court stated at pages 452 and 453:

“We there indicated that the parol testimony supporting the existence of a contract upon which specific performance may be had must be clear and conclusive of the existence and terms of the contract, leaving no room for reasonable doubt. The court in such case will weigh the evidence scrupulously and with caution. The evidence in support of the alleged contract must be strong and compelling, and the evidence must not be readily harmonizable with any other theory.”

The court did not then dilute the requisites to prove the existence of the contract but only stated that it could, in some situations, be established by circumstancial evidence.

We do not feel that the evidence of a contract to adopt in this case meets the tests of the Monahan and earlier decisions or that it can “. . . not be readily harmonizable with any other theory.”

From the records of the orphanage and the Catholic Home Finding Association, it appears that they were interested in placing their children with families of suitable Catholic background. The visitation records maintained by them indicate that from the beginning this was the problem in this placement since the Devingers were not married in the Catholic Church. Those records indicate that Claude Devinger had been married before and did not attend church on any regular basis. There are repeated references to the fact that the Devingers did not keep their part of the “agreement” but it is clear that the reference is to an agreement to correct their marital relation and attend church rather than an agreement to adopt as contended by the petitioner. That this is so is borne out by the notations of the agent’s reports. On January 14, 1924, the agent noted . . . “give family another trial, awaiting the outcome of their marriage affair . . . .” On September 19, 1924, he noted “Asked her to tell Devinger that he must attend his own parish church so we could check up on his Catholicity . . . that he failed to fulfill any of his part of the agreement.” In September of 1926 Josephine told the agent that Devinger had been “scared good” by a missionary priest and that she was confident he would return to church regularly.

This evidence does not harmonize with the theory that the Devingers had failed, for whatever reason, to keep their promise to adopt the petitioner made when they first obtained him but rather that the orphanage had delivered the child on a “trial” basis to see if a suitable religious environment would be provided. Josephine’s later actions, including her return of Landau to the orphanage during his adolescence, is consistent with this “trial” theory. It is also not established that the orphanage, in any event, had the capacity to enter into an adoption agreement since the origin of their custody is completely unknown.

Finally, the petitioner complains that he should have been permitted to testify despite the strictures of section 2 of the Evidence Act since Florence Witt had testified as to heirship when the estate was first opened.

Section 2 precludes a party to an action from testifying when an adverse party sues or defends as an heir of the deceased person. Clearly, Landau was prohibited from testifying by that Act. When Florence Witt testified it was not an adverse proceeding and she was competent to do so as a routine matter of establishing heirship. Estate of Diak, 70 Ill App2d 1, 217 NE2d 106. She only testified as a section 60 witness once the matter became adverse.

For the reasons stated, the judgment of the trial court will be affirmed.

Judgment affirmed.

MORAN, P. J. and DAVIS, J., concur.


source: Caselaw Access Project

author: STOUDER, J.

license: Public Domain

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Robert W. Tompkins, Defendant-Appellant.
    Gen. No. 68-94.
    Third District.
    August 28, 1969.

      Ronald Coplan, Public Defender, of Morrison, for appellant.
    L. E. Ellison, State’s Attorney of Whiteside County, of Morrison, for appellee.
   STOUDER, J.

After pleas of guilty to the offense of armed robbery, the Circuit Court of Whiteside County sentenced Defendant-Appellant, Robert Tompkins, to a term of 5 to 20 years in the penitentiary. This appeal questions only the propriety of the sentence, defendant arguing that sentence was imposed without appropriate hearing and that it is excessive.

After admonishment, defendant’s plea of guilty was accepted by the trial court. Thereupon the judge asked whether the parties wished to make any statements. The State’s Attorney then made a statement to the court outlining the details of the offense to which defendant pled guilty, recounting the details of an escape from jail and mentioning defendant’s previous record as a juvenile. No objections were made by defendant to the statements of the State’s Attorney. Defense counsel then made a short statement asking that defendant’s youth (17 years) be considered. The judge asked the defendant if he wished to say anything and received a negative reply. The court asked defendant a few questions and then imposed sentence.

Chapter 38, § 1-7 (g), Ill Rev Stats 1967 provides, “For the purpose of determining sentence to be imposed, the Court shall, after conviction, consider the evidence, if any, received upon the trial and shall also hear and receive evidence, if any, as to the moral character, life, family, occupation and criminal record of the offender and may consider such evidence in aggravation or mitigation of the offense.” The foregoing provision recognizes the importance of the court’s function in the imposition of penalties and further that the proper exercise of such function requires the presentation and consideration of all relevant facts. The principles embodied in the Statute are not new but the trend of decisions since its enactment in 1961, reflects an awareness by courts of review that the sentencing function can neither be intelligently exercised or reviewed in the absence of evidence or facts relating thereto. People v. Evrard, 55 Ill App2d 279, 204 NE2d 777; People v. Smice, 79 Ill App2d 348, 223 NE2d 548, and People v. Sessions, 95 Ill App2d 17, 238 NE2d 94.

In the instant case it is conceded by the parties that a defendant is entitled to an opportunity to present evidence favorable to mitigation of the offense thereby affecting the penalty to be imposed. The parties also agree that the right may be waived by the defendant and it is the existence or nonexistence of such waiver that forms the basis of the dispute. The People rely on People v. Muniz, 3 Ill2d 130, 198 NE2d 855; People v. Wakeland, 15 Ill2d 265, 154 NE2d 245; People v. Rummerfield, 4 Ill2d 29, 122 NE2d 179; People v. Hohmann, 72 Ill App2d 374, 219 NE2d 621, and People v. Thurman, 76 Ill App2d 41, 221 NE2d 798, in support of their position that the failure of defendant to request an opportunity to present evidence in mitigation of sentence is a waiver of the right thereto. The inflexibility of the rule as stated in the Muniz, Wakeland and Rummerfield cases has, we believe, been modified in recent decisions such as People v. Evrard, supra; People v. Smice, supra; People v. Sessions, supra, and People v. Harris, 66 Ill App2d 46, 213 NE2d 588. As indicated in People v. Smice, the prevailing view in Illinois, although not completely harmonious, appears to be that a defendant will not be deemed to have waived a right of which he is unaware. Consequently, waiver is not accomplished by mere failure to request a hearing but requires something more, namely conduct indicating waiver of a known right. Defendant’s knowledge need not be shown in any formal sense but we believe the minimum the record must demonstrate is that defendant was aware of his right to present evidence favorable to minimize the prospective sentence and conduct indicating that notwithstanding such knowledge, defendant did not desire to avail himself of such right or opportunity.

In the instant case, the proceedings prior to imposition of sentence were meager and devoid of anything from which it might be reasonably inferred that defendant was aware of his right to present favorable evidence. This fact is in large measure conceded by the People since they rely not upon a knowledgeable waiver but upon defendant’s failure to request the opportunity to present such favorable evidence. As we have said before, such failure to request a hearing is not necessarily a waiver thereof and as a consequence we believe defendant neither had nor waived a proper hearing.

In view of the foregoing it is obvious we are not in a position to express an opinion concerning the alleged ex-cessiveness of the sentence imposed. The judgment of conviction of the Circuit Court of Whiteside County is affirmed but the sentence imposed is vacated and the cause is. remanded to said Court with directions that defendant be granted a hearing in accord with the views expressed herein to determine the proper sentence to be imposed.

Judgment of conviction affirmed, sentence vacated and cause remanded with directions.

ALLOY and RYAN, JJ., concur.


author: ALLOY, J.

text:
    Robert Wolfe, Plaintiff-Appellee, v. Harvey E. Whipple, Defendant-Appellant.
    Gen. No. 68-108.
    Third District.
    August 28, 1969.

      Edward Keefe, of Rock Island, for appellant.
    Frank Schubert, of Rock Island, for appellee.
   ALLOY, J.

Plaintiff Robert Wolfe instituted the present action as against defendant Harvey E. Whipple for personal injuries caused by the alleged negligence of defendant in the operation of an automobile. At the close of all the evidence, the trial court directed a verdict for plaintiff and submitted to the jury only the issue of the amount of damages to plaintiff. The jury returned a verdict assessing such damages at $50,000. On appeal in this Court, defendant contends that the court erred in directing such verdict and, also, that the court erred in entering a certain preliminary order in limine and in excluding certain exhibits.

The record discloses that the plaintiff Robert Wolfe was a police officer working for the City of East Moline. He and officer Van Tyne were on duty around 2:00 o’clock a. m., April 1, 1967, when they received a call to go to a certain destination. They proceeded northerly on Route 84 when the engine on their police car stalled. The engine started again and they proceeded north on Route 84 about 300 feet when the motor stalled again. Plaintiff was driving the car at the time and he put the car into neutral gear and let it roll to a stop. There was some conflict in the evidence as to where the police car finally stopped. The testimony of the driver of a car which stopped behind the police car was that the police car was stopped in the northbound lane heading north and that the car was entirely located within its right-hand side of the highway at such point. Plaintiff and officer Van Tyne both testified that the police car was off on the right shoulder with the exception of the left three feet of the car which was on the highway. The shoulder in the area was about six feet wide and was composed of dirt and cinders. When the accident occurred, it was dark, misty, drizzling, and hazy, and the pavement was wet. Route 84 is level in the area where the police car stopped and there was nothing normally which would obstruct the vision of anyone approaching the police car from the north or south on Route 84.

After the police car came to a stop, plaintiff activated the single, red, revolving light on top of the police car and he also left the police car headlights on and turned on two blinking amber warning lights on the front of the police car and two on the back of the police car. Plaintiff began to direct traffic around the stalled police car, using a flashlight. No flares were put out, and there was testimony that no flares were required by any prescribed regulation. Officer Van Tyne, who was a mechanic, began to work on the engine of the police car. He raised the hood of the police car. There was a conflict in the evidence as to how far he raised the hood. There was specific evidence of a witness who stopped at the rear of the police car that the hood was raised to its full height. There was also testimony that the hood on the 1966 Ford (the type of police car) can be raised about halfway up and it will hold in that position. If it is raised higher, a spring lift is engaged and it lifts the hood up to its highest point. This highest point was shown to be 18.6 inches above the highest point of the car. The oscillating red light on the top of the car is 12 to 13 inches above the top of the car so that if the hood was opened as high as it could be raised, it would extend about 5.6 inches above the red light on the top of the police car and would obstruct the view of that light. There was evidence that if the hood was not raised to the full height, the red light could be seen by someone coming in the opposite direction and easily seen by a 6-foot man standing in the roadway. As we have indicated, however, the witness in the car stopped behind the police car testified that he observed that the hood of the police car was “all the way up.”

Defendant approached the stalled police car from the north proceeding in a southerly direction. There was no obstruction to defendant’s vision as he approached the police car, and he testified that he was driving about 35 to 40 miles per hour. Another automobile in front of the defendant proceeded on past the police car with no difficulty. Defendant testified that as he approached the police car, he had his dim lights on, as it was hazy. He testified that he did not see the red revolving light on top of the police car, until he was two car lengths from the police car. At this time the red oscillating light flashed across his window and he slammed on his brakes, his tires skidded on the wet pavement, and he slid into the northbound lane and struck the plaintiff pinning him against the fender of the police car.

As we have indicated, the witness, a Mr. Winston, who was stopped in a position immediately behind the police car testified that while plaintiff had been directing traffic previously, at the time of the accident plaintiff appeared to be leaning over the left front fender of the police car looking under the hood of that car. Plaintiff stated that he looked in the direction of defendant’s car sliding toward him but was unable to get out of the way and was immediately pinned against the fender of the police car.

There was a conflict in the evidence during the trial as to whether or not defendant was intoxicated as a result of consumption of alcoholic liquors, but in directing the verdict, the trial judge said that he assumed for the purpose of that motion that defendant was sober.

In the course of the trial, a question arose as to the admissibility of income tax returns of the plaintiff. Plaintiff was injured on April 1, 1967, and did not return to work as a policeman until a year later, on April 4, 1968. He had worked as a policeman during the night and as a building contractor during the day and had built six houses in the year prior to the accident. He had worked as a building contractor along with a John Corea and he and Corea did much of the carpenter and masonry work on the houses, although they did hire some of the work done. Plaintiff testified that he completed six homes after the accident but that he had to hire extra or substitute help to perform the work which he normally did himself but was unable to do because of his injuries. He also testified that several of the people for whom he was building houses performed some of the work which he normally would have done and that he gave them credit for such labor performed by them when they settled up for the houses. Plaintiff testified specifically that he had paid out $9,292 in payments to hired help to perform the work he normally would perform and, also, that he allowed $2,750 in credits to others for whom he was building homes, making a total of $12,042.

After plaintiff had testified, defendant attempted to introduce Exhibits 12, 13 and 14, which were plaintiff’s 1965, 1966, and 1967 Income Tax Returns, in evidence. These returns showed wages as follows: In 1965 — $919; in 1966 — $6,239; in 1967 — $6,461. 1967 was the year of the accident. These returns also showed on Schedule C (the business schedule) that the construction business netted the following amounts: 1965 — $5,693; 1966— $5,998; 1967 — $3,792 (1967 was the year of the accident). These returns were offered in evidence by defendant to show that plaintiff had made a prior admission that he had earned wages of $6,461 in 1967 and such admission was inconsistent with his testimony that he had lost wages of $5,950. The returns were also offered to show that there was a question as to the credibility of plaintiff’s testimony that he could have earned $12,042 additional in his construction business if he had not been injured, as the tax return showed a drop in net income from construction business of only about $2,200.

Plaintiff made a motion in limine outside of the presence of the jury for the purpose of excluding such evidence from the trial. At the hearing on such motion to exclude the evidence, which was held in the Judge’s chambers, plaintiff’s attorney attempted to explain the 1967 wages of $6,461 by saying that such payments were concerned with something analogous to workmen’s compensation. It was admitted by both parties that workmen’s compensation payments or similar type payments are not to be included on income tax returns, as such payments are not income. Defendant admitted that if the payments were in the nature of workmen’s compensation they should not be admitted into evidence but the dispute was concerned with whether the payments were similar to workmen’s compensation. It appears that plaintiff may have received the amounts as a substitute for workmen’s compensation payments which were returned or waived so as to give plaintiff his full salary during the period of time he was unable to do his work as a police officer. Defendant, however, denied that this $6,461 shown as wages on the 1967 income tax return was from a collateral source and similar to workmen’s compensation or disability insurance and contended that the jury should determine from the tax return and the testimony of the plaintiff himself, if such sums were from a collateral source similar to workmen’s compensation. The trial judge granted the defendant the opportunity to examine the plaintiff and his accountant outside the presence of the jury to determine if such wages were similar to workmen’s compensation or were actually other wages which should be admitted in evidence. Defendant refused such offer contending that such question as to whether these were or were not wages was a fact question which should be determined only by the jury. The trial judge then refused to admit the returns into evidence and granted plaintiff’s motion in limine.

The fundamental question before us is whether the trial court was correct in directing a verdict for plaintiff on the question of liability. Attorneys for both parties cite Pedrick v. Peoria & Eastern R. Co., 37 Ill2d 494, 229 NE2d 504, as specifically justifying the arguments made by plaintiff for affirmance and by defendant for reversal of this cause. It is noted that in the case of Pedrick v. Peoria & Eastern R. Co., supra, at page 510, the court stated:

“Nor, as earlier stated, does it seem to us that the any-evidence rule or any of its variants (no conflict in the evidence; scintilla rule) is entirely satisfactory, for literal application thereof prohibits direction of a verdict even though the evidence relied upon in opposition is so overwhelmingly rebutted that no verdict based thereon could possibly stand. In such instances no action other than a directed verdict is consonant with efficiency in our judicial system and with a fair and expeditious termination of litigation.
“Rather, we believe the rule is best which in some form finds favor in other States heretofore indicated and which has, in part, been heretofore recognized in this State. In our judgment 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.”

It is recognized in the Pedrick case, that where a substantial factual dispute is disclosed by the evidence, either on the issue of plaintiff’s due care or defendant’s negligence, or where an assessment as to credibility of witnesses and an election between conflicting evidence may be decisive, the constitutional right of the parties to a jury determination should be carefully preserved, and it would be erroneous to direct a verdict in such case. The question, therefore, is whether the record in this case requires or justifies the direction of verdict.

It is true that the circumstance that defendant’s vehicle crossed into plaintiff’s lane where a collision occurred does not establish negligence by defendant as a matter of law if there is evidence explaining the circumstance for coming into the opposite lane from which reasonable inferences favorable to defendant would be permissible (Andres v. Green, 7 Ill App2d 375, 129 NE2d 430). The parties also agree, that if there is no evidence from which inferences favorable to defendant could be drawn to explain the circumstance of his crossing into the plaintiff’s lane where a collision occurred, then it would be proper to direct a verdict for plaintiff (Sughero v. Jewel Tea Co., 37 Ill2d 240, 226 NE2d 28; Tomlinson v. Chapman, 24 Ill App2d 192, 164 NE2d 240).

As related to the case before us, the case of Skala v. Lehon, 258 Ill App 252, affd 343 Ill 602, 175 NE 832, is cited as authority for the principle that a person who gives another reasonable cause for alarm cannot complain when that person so alarmed does not exercise cool presence of mind in reacting to it; that the latter’s conduct should be judged not in the light of what later events reveal would have been better or safer, but against the standard of how a reasonable person would have reacted under the circumstances of the same sudden alarm. In this connection, appellant emphasizes the fact that defendant’s auto skidded into plaintiff’s lane on the wet highway when defendant, being one second away, and sober, applied his brakes in reaction to an alarm created by plaintiff by the flashing oscillating light. Defendant’s evidence was that the oscillating light had been obstructed until that time. There was also evidence that plaintiff was standing in the street in such manner that he could not be seen. It is contended that the question of whether plaintiff was in the exercise of due care and whether defendant was negligent should have been submitted to the jury and that it was error to direct a verdict. We are aware of the cases of Caselman v. Schleifer, 97 Ill App2d 123, 239 NE2d 687 and Waldron v. Hardwick, 99 Ill App2d 36, 240 NE2d 772 (at 774), in which cases the court sustained the principle of allowing direction of verdict under the facts in those particular cases. In those cases, the court indicated that the evidence so overwhelmingly favored the defendant that no contrary verdict would stand. We note also in the case of Nikkinen v. Evans, 90 Ill App2d 438, 232 NE2d 774, in which defendant hit plaintiff’s car in plaintiff’s lane of traffic, the court had set forth a rule stating that where the evidence conclusively establishes that the collision occurred in the lane which was the proper lane for the plaintiff, defendant had a duty to show that his car was in such traffic lane due to some reason other than his own negligence. In Sughero v. Jewel Tea Co., supra, the court also stated that defendant had a duty of showing that the vehicle was there for some reason other than his own negligence. In that case the quick stop was made because of the abrupt stop on wet asphalt of the automobiles in front of him. To the same effect is Calvetti v. Seipp, 37 Ill2d 596, 227 NE2d 758.

In the case before us we have a situation where the police car was stopped at 2:00 o’clock a. m. on the highway in the correct lane. The facts favorable to defendant disclose that plaintiff was leaning in over the motor and that the hood of the automobile was raised to such a position that defendant could not see the red oscillating light. The speed of defendant at such time was 35 to 40 miles per hour. Defendant stated that it was hazy and raining and that when he was only two car lengths north of the squad car and less than one second away the perspective then given by such proximity allowed the oscillating warning light to flash from behind the raised hood across his windshield and alarmed defendant so that he then quickly slammed his brakes causing his car to slide across the center line and into plaintiff.

While we agree that the case as presented is not a strong one from standpoint of defendant, and that we, as triers of fact, would be inclined to favor the plaintiff’s version and determine the issues in favor of plaintiff, the question before us is not one of determining questions of fact but of determining whether the evidence, when viewed in its aspects most favorable to the defendant, so overwhelmingly favors the movant, that a contrary verdict for the opponent could not stand. We have before us a situation where there is in fact a substantial factual dispute, so that assessment of credibility of witnesses may be decisive and where it may be necessary to elect between conflicting reasonable inferences. Under such conditions we do not believe that the Pedrick case requires or authorizes the direction of a verdict. In the Pedrick case the court determined that the inference favorable to plaintiffs upon which they depended to establish their essential element of due care, could have no probative force even if it were accepted by a jury. The nonmoving party is entitled only to those favorable inferences which the law will permit in the context of all the evidence.

The trial court in the cause before us determined as a matter of law (1) that the plaintiff was free of contributory negligence, and (2) that wholly apart from any issue of intoxication, defendant was nevertheless negligent. On the record, the facts were such as to have required that these propositions be submitted to the jury to be decided as questions of fact. We must consider first, viewing the evidence most favorably for defendant, that plaintiff’s car was in the correct and northbound lane and that both plaintiff and his companion were leaning over the open hood of the squad car; that the hood of the squad car was raised all the way up so as to obstruct the view of the red oscillating light; that it was shortly after 2:00 o’clock a. m. and dark, hazy and drizzling and that the pavement was wet; that it was possible that some of the other flasher lights on the squad car might have been obstructed by plaintiff as he leaned into the motor; that all of these circumstances raised a question upon which reasonable men might have differed as to whether plaintiff immediately prior to and at the time of the collision was in the exercise of due care for his own safety, and also as to the nature of defendant’s conduct.

On the basis of the record before us, we believe that the trial court erred in directing a verdict and that this cause should be reversed and remanded for new trial by jury by reason thereof.

Whether the trial court erred in allowing the motion in limine in excluding the defendant’s exhibits consisting of the income tax returns may be involved in this cause on its retrial. It is appropriate, therefore, that we should refer to such issue. The parties recognize that the collateral source rule to the effect that evidence that plaintiff received payments while he was disabled, due to an accident, in the form of workmen’s compensation or disability insurance payments or gratuitous payments, would not be admissible in a civil suit by plaintiff for damages (Hoobler v. Voelpel, 246 Ill App 69, 78). The reasonable rule is that gratuitous payments in such case would not preclude a recovery for loss of time on the theory that the wrongdoer can have no concern with the transaction between employer and employee and the amount so paid is not to be regarded, under the circumstances, as in any sense compensation for lost time but rather as a gratuity given by one to the other out of relations of friendship or sympathy between them. Defendant has argued that the jury should decide from plaintiff’s testimony and his 1967 income tax return, if the $6,461 was such collateral type income. The court at the hearing in chambers on the motion in limine to exclude such evidence gave defendant ample opportunity to examine plaintiff and his accountant to determine the source of such $6,461. Defendant refused again, contending such question was a jury question. We do not agree. The entire theory of the collateral source rule is to keep the jury from learning anything about the collateral income so that it will not influence the decision of the jury. Plaintiff made an offer of proof saying that if plaintiff were to testify as to the source of this $6,461 he would testify that such funds were in the nature of workmen’s compensation or gratuitous payments and that such evidence should be excluded from the jury. Defendant made no counteroffer of proof and did not avail himself of the opportunity to examine plaintiff and his accountant to determine the exact source of the $6,461. Since defendant failed to make such examination, the offer of proof by plaintiff would stand and the court was correct in refusing to admit the 1967 income tax return into evidence as to this issue. Defendant had his opportunity to determine the source of such income in order to make proper objection to the court’s refusal to admit the return in evidence. He did not avail himself of such opportunity. The question of admissibility of such tax return was for the court and not for the jury. The ruling of the court on this issue, therefore, was not erroneous.

As to the issue involved in the income tax return upon which plaintiff contended he had sustained a $12,042 loss by having to hire other workmen and allowing credits on his construction work for labor performed by the home purchaser, the argument of the attorney for plaintiff was that the only issue on the question of damages in regard to plaintiff’s construction business, was the amount of substitute labor hired and the credits allowed for labor performed by the owners. Plaintiff contends that the question of whether the business showed a profit or loss was immaterial. While it is true that plaintiff could place in evidence the cost of his substitute labor and credits, defendant should have been allowed to introduce in evidence the plaintiff’s profit from his contracting business both before and after the accident. In this case the only evidence the jury heard as to plaintiff’s loss of earnings in his contracting business was that he paid out $12,042 to workmen who performed labor which he himself could have performed had he not been injured. Actually, plaintiff’s 1966 and 1967 income tax returns showed that plaintiff’s profits from his business declined only $2,206 in 1967, the year of his accident. In spite of this, only the figure of $12,042 was presented to the jury while the tax returns showed he never made a net of over $6,000 in his contracting business in either the year 1965 or 1966. It was, therefore, not proper for plaintiff to select one area of damages to his business by reason of impairment of earning capacity and say that this should be the entire basis of his claim for damages. While we believe it was proper to show the cost of hiring a substitute and credits, this should be considered along with other evidence of damages to earning capacity, including the profits derived from the business which employed the substitute labor, since this would indicate fully the nature of damage which plaintiff suffered rather than disclose only one aspect of such claim for damages. In the case before us, defendant had offered the entire income tax return including the portion relating to wages which was not appropriate for jury consideration. Had defendant made a request for the court to admit just the business schedule, Schedule C of the return, this would have been appropriate. Such portions of the return could have been made available to the jury in conjunction with the testimony as to the cost of substitute labor and credits.

This cause will, therefore, be reversed and remanded to the Circuit Court of Rock Island County, Illinois, with directions to vacate the judgment entered herein and to grant the parties a new trial on all issues in such cause.

Reversed and remanded.

STOUDER, P. J. and RYAN, J., concur.


author: STOUDER, P. J.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Anthony Insolata, Defendant-Appellant.
    Gen. No. 68-60.
    Third District.
    September 2, 1969.

      Eugene Hayes, of Morris, for appellant.
    Richard Wilder, State’s Attorney, of Morris, for ap-pellee.
   STOUDER, P. J.

This appeal arises from a jury verdict and judgment of guilty on a one-count indictment charging the defendant-appellant, Anthony Insolata, with theft of an automobile of a value in excess of $150. Following a hearing in aggravation and mitigation, the defendant was sentenced to a term of not less than 2 nor more than 10 years in the Illinois State Penitentiary.

In appealing from his conviction and sentence, defendant contends that error was committed in that one, the State failed to prove ownership of the property alleged to be stolen, two, the State failed to prove his guilt beyond a reasonable doubt and three, the sentence imposed by the court was excessive.

With reference to defendant’s first assignment of error it appears that the indictment charged the theft of an automobile owned by Donald Jennings. In his testimony Donald Jennings testified that he leased the automobile from the O K Leasing Company.

Defendant’s principal contention regarding the insufficiency of such testimony is that the terms and conditions of the lease should have been included. We find no merit in such contention. C 38, § 15-2, Ill Rev Stats 1967, provides in part, . . owner means a person, other than the offender, who has possession of or any other interest in the property involved . . . .” The requirement that the ownership of property alleged to have been stolen be alleged and proved is to safeguard the accused against double jeopardy. People v. Kurtz, 69 Ill App2d 282, 216 NE2d 524; see also People v. Jamison, 92 Ill App2d 28, 235 NE2d 849. However, we believe the testimony that Jennings was the lessee of the automobile constituted sufficient evidence of ownership. People v. Kurtz, supra. The evidence of ownership is sufficient to enable the defendant to plead the present conviction in bar of any subsequent prosecution for the same theft and the absence of the terms and conditions of the lease would not affect such right.

Defendant next argues that he was not proved guilty beyond a reasonable doubt. We find no merit to this contention and believe that no extended discussion is required. Defendant was apprehended while driving the automobile alleged to have been stolen. His defense was that he had been given a ride in the automobile which at the time was being operated by a person not previously known to the defendant and that such person had given defendant $5 to drive the car to St. Louis, having turned the car over to the defendant shortly before the defendant’s arrest. Defendant argues that the testimony of the arresting officer is inherently improbable but after reviewing the record it is our conclusion that such testimony is not inherently improbable. Rather the record reveals that the jury declined to accept defendant’s uncorroborated testimony that the automobile was actually stolen by some vaguely described third person. Under such circumstances we believe the jury’s verdict is amply supported by the evidence.

Lastly, defendant argues that the sentence of from 2 to 10 years in the penitentiary is excessive. In this regard defendant argues that the present conviction is his only felony conviction and that the details of the offense itself are such that the serious penalty imposed was not required. In reviewing the record it appears to us if only the offense of which the defendant stands convicted in the instant case is considered, the sentence imposed might be regarded as excessive. However, in reviewing the report of the probation officer, it appears that the defendant had been incarcerated for four separate misdemeanor offenses during the preceding six years and had served two, one-year terms in the Illinois State Farm at Vandalia, Illinois. Thus while it may be said that the auto theft represented defendant’s first felony conviction, in our opinion the court was not required to disregard the defendant’s previous periods of incarceration and when they are taken into account we do not believe it can be said that the present sentence is excessive thereby warranting a reduction in sentence as provided in Supreme Court Rule 615(b).

For the foregoing reasons the judgment of the Circuit Court of Grundy County is affirmed.

Judgment affirmed.

ALLOY, P. J. and RYAN, J., concur.


author: GOLDENHERSH, P. J.

text:
    Estate of Florence Schwendeman, Deceased, Grace L. Barbier, Administrator, Plaintiff-Appellant, v. State Savings and Loan Association and Elmer Hercules, Defendants-Appellees.
    Gen. No. 68-119.
    Fifth District.
    September 3, 1969.
    Raymond J. Nester, of Belleville, for appellant.

      Dixon & McDonnell, of Belleville (Joseph B. McDonnell, of counsel), for Elmer Hercules, defendant-appellee.
   GOLDENHERSH, P. J.

Petitioner, Grace L. Barbier, administrator DBN WWA of the Estate of Florence Schwendeman, deceased, appeals from the judgment of the Circuit Court of St. Clair County dismissing her petition for citation, and adjudging respondent, Elmer Hercules, to be the lawful owner of certain funds on deposit with respondent, State Savings and Loan Association.

The evidence shows that on March 12, 1962, the decedent, Florence Schwendeman, deposited funds with State Savings and Loan Association in account No. E331. She signed a card headed on one side “Individual Savings Account” and on the reverse side “Payable on Death Account.” The card describes her as “Owner” and contains the following provision:

“Upon the death of the owner as named on the reverse side hereof, the person (s) named in paragraph 2 hereof, or in a subsequent written direction accepted as specified in paragraph 3 hereof, shall be be the absolute owner(s) of this account. If more than one of them shall be living, they shall own this account as joint tenants with right of survivorship and the signature of each of them shall be necessary to the validity of any withdrawal application, receipt, proxy, or other instrument requiring member signature in connection with this account.”

It designated three of her brothers as owners of the account upon her death, of whom only respondent survived her.

The parties stipulated that with the exception of one withdrawal by decedent no change was made in the account from its inception to the time of decedent’s death.

The last will and testament of the decedent executed on March 21, 1963, and admitted to probate on March 23, 1966, contains the following provision:

“I give and bequeath to my three brothers, Leo J. Hercules, Albert E. Hercules and Elmer F. Hercules, all the money I have on deposits in both the State Savings & Loan Association, East St. Louis, Illinois, and the First Federal Loan Association, East St. Louis, Illinois; my said brothers to share and share alike provided further, that if a brother of mine predeceases me then and in that event the said deceased brother’s share I give and bequeath to his wife and children that survive him in equal shares.”

Petitioner contends that the trial court erred in its ruling and argues that (a) the signature card executed upon creation of the account shows decedent to be the owner thereof and she remained sole owner until her death (b) as sole owner she had the power to make a testamentary disposition of the funds, and the agreement creating the account in no way limited her right so to do; (c) her will, having been executed subsequent to the opening of the account, prevails over the “payable on death” provision of the deposit agreement which purports to make testamentary disposition of the funds.

Although the factual situation here differs in that the decedent executed a will subsequent to creating the account, the following statement from In re Estate of Gubala, 81 Ill App2d 378, 383, 225 NE2d 646, is applicable here:

“However, while the disposition of funds in a ‘P.O.D. account’ is testamentary in nature and without question is not in compliance with the Statute of Wills, the aforesaid disposition nevertheless is valid since the Illinois Savings and Loan Act was intended to supplant the Statute of Wills in this respect. Section 770(c) of the Act, under which a ‘P.O.D. account’ is authorized, is irreconcilably inconsistent with and repugnant to the Statute of Wills and refers to a specific type of testamentary disposition. Moreover, it was enacted subsequent to the Statute of Wills, which refers to testamentary dispositions in general. A familiar rule of statutory construction is that where there are two statutory provisions, one of which is general and designed to apply to cases generally and the other of which is particular and relates only to one subject, the particular provisions must prevail and must be treated as an exception to the general provision (Board of Education v. City of West Chicago, 55 Ill App2d 401, 404, 205 NE2d 63; People v. Canada, 81 Ill App2d 220, 225 NE2d 639. Moreover, while repeal by implication is not favored, where two statutes are irreconcilably repugnant the latter abrogates the former to the extent that they are inconsistent and irreconcilable, since it cannot be supposed that the General Assembly intends to enact and enforce laws which are contradictions. People v. Maslowsky, 34 Ill2d 456, 468, 216 NE2d 669. Applying these common rules of statutory construction, we find that it was the intention of the legislature to validate the specific testamentary disposition of funds in a ‘P.O.D. account’ even though the form of such disposition is not in accordance with the requirements for testamentary dispositions in general as set forth in the Statute of Wills.”

The Probate Act (c 3, § 46, Ill Rev Stats 1967) governs generally the revocation of wills, but the Illinois Savings and Loan Act (c 32, § 770(c), Ill Rev Stats 1967) contains its own specific provision for designation of changes in P.O.D. accounts, (§ 770(c) (2)). Applying the rationale of Gubala, the specific testamentary disposition made in accordance with section 770(c) prevails over the provision of the decedent’s will.

The judgment of the Circuit Court of St. Clair County is affirmed.

Judgment affirmed.

MORAN and EBERSPACHER, JJ., concur.


author: SMITH, J.

text:
    Kansas Quality Construction, Inc., a Corporation, Plaintiff-Appellee, and Cross Appellant, v. Marshall Chiasson, Robert O. Emrick, William A. Beerup, Individually and as Co-partners, Defendants-Appellants and Cross Appellees.
    Gen. No. 11,040.
    Fourth District.
    September 3, 1969.
    Rehearing denied October 3, 1969.

      Hutchens & Mann, of Winchester (Richard E. Mann, of counsel), for appellants.
    Bellatti, Fay & Bellatti, of Jacksonville (John E. Bel-latti and Walter R. Bellatti, of counsel), for appellee.
   SMITH, J.

Plaintiff, a Kansas corporation, is engaged in the business of building apartments. It purports to have the know-how to get things done. This necessarily includes preliminary assistance and advice just to get things off the ground — literally. Defendants conceived the idea of an apartment and had just the spot. Presumably lacking this know-how, they and plaintiff got together and the following emerged:

it
“1.
“2. Owner (defendants) agrees to retain the services of builder (plaintiff) for the above project, said services to be as follows:
“a. Development of plat layout, to show building placement, total buildings, recreation area, parking, etc.
“b. On approval of area plat by both owner and city, builder will cause plans of proposed buildings to be drawn, for loan submission.
“c. Assist owner in obtaining adequate financing for completion of project, through first and secondary financing.
“d. Erect apartment buildings on owner’s ground in accordance with approved plans and specifications.
“3. Owner agrees to contract with builder to erect all buildings built at the above location, on a turn key basis, as services outlined in paragraphs 2a, b, c and d are performed.
“4. . . .
“5. Cost of the project shall be quoted as a ‘not to exceed figure,’ but in an amount not more than the proceeds from available financing, first and secondary financing. . . .
“. . . In the event owner contracts with a builder other than this company for buildings at the above location it is expressly understood by and between the parties to this agreement that builder shall be due a fee in the amount of $4,000.00, due and payable at that time.”

To us this agreement means that when plaintiff has performed 2a, b and c, defendants can then opt to: (1) have plaintiff “erect all buildings built,” or (2) contract “with a builder other than [plaintiff]” and pay plaintiff a “fee” of $4,000, or (3) build it themselves, or (4) not build at all. Plaintiff did perform 2a, b and c. Defendants opted for (2), another builder, plaintiff says, but failed to pay it the “fee.” It sued and a verdict for $4,000 followed. Plaintiff moved for inclusion of interest in the judgment from the “time” that defendants so opted to judgment, pursuant to § 2 of the Interest Act (Ill Rev Stats 1965, c 74, § 2). The motion was denied. Both appeal.

Defendants’ defenses are many, most in the way of avoidance rather than straight denial. They do deny they opted for (2) and assert it was (3), hence they owe nothing. Did they or didn’t they build it themselves? If they didn’t, then plaintiff is right, for the apartment was built. Our review of the evidence on this point discloses a factual question which was resolved by the verdict, indeed answered specifically. This answer by the jury is not against the manifest weight of the evidence, therefore, defendants’ citation of Pedrick v. Peoria & Eastern R. Co., 37 Ill2d 494, 229 NE2d 504, is not apropos.

In avoidance, defendants argue that plaintiff violated the Illinois Architectural Act (Ill Rev Stats 1965, c 10½) by agreeing to and indeed performing architectural services without being licensed. Plaintiff agrees that it is not a corporation which can offer and engage in such services but denies that it either agreed to or did so. The practice of architecture as defined in the Act, § 2, includes the offering or furnishing of professional services in connection with the construction or erection of any building, structure or project. Is this agreement an offer by plaintiff to perform architectural services? Even if it is not, did they do so in fact? If the answer is yes to either question, plaintiff’s right to recover becomes murky, to say the least.

We are of the opinion that offering to develop a plat layout (2a) to show placement, total buildings, etc., is not so connected with “construction” that it partakes of doing what architects do. If this is so, then performance likewise is outside of the Act. To be sure, there is a nexus between the layout and construction in the sense that placement must precede construction— but then so must the idea itself. “Construction” at the very least, means getting off the ground by going either up or down, not just thinking about it, and plaintiff’s plat layout here, “to show building placement, total buildings, recreation area, parking, etc.” is certainly not construction nor connected with it to the extent that it falls within the statutory definition. The layout was developed first to please defendants and upon their approval, to convince the municipal authorities of the project’s desirability and to gain their approval. To be sure, a plat layout can at times be a very complicated business calling for the collaboration of a battery of experts — surveyors, engineers, planners, landscapers, even lawyers— but in bringing their varied expertise to bear, none are thereby transmogrified into architects — and vice versa. As is said in 5 Am Jur2d 665, § 3, Architects, “[T]he making of a survey of existing conditions, with recommendations and preliminary sketches and layouts, with regard to work needed on a hotel building, constituted nonarchitectural services.”

Likewise with regard to 2b, causing plans of the proposed building to be drawn for loan submission, is not a statement by plaintiff that it will perform architectural services, rather, it is an agreement that they will cause such plans to be drawn for such purpose — loan submission — which may or may not be eventually connected with the projected construction and which may or may not be drawn by an architect — it all depends on how much detail the banker wants. We cannot assume that the implementation of this condition without more renders this contract void from its very beginning. It is neither an “offering” nor a “furnishing” so long as performed for the stated purpose.

The proof is that at plaintiff’s behest a non-Illinois architect prepared these plans for such purposes. In causing such to be prepared and limiting their use to the stated end — loan submission — plaintiff was not playing architect. Of course, since plaintiff did not build the apartment it can hardly be accused of using these plans in “connection” with its “construction,” assuming their suitability. Whether the plans as drawn by the outside architect would have been the ones used had plaintiff been the builder is therefore irrelevant. Likewise, 2c— obtaining financing — has even less to do with architecture — if anything at all. We can only conclude that the contract itself is not void as an agreement by plaintiff itself to play architect, and what it did do, so far as it went, was not the furnishing of architectural services. Recovery cannot be avoided on this score.

Next, defendants say that their contract and plaintiff’s performance of it took place when plaintiff, a foreign corporation, lacked authority to transact business in Illinois, hence plaintiff lacked standing to sue. Section 157.125 of the Corporations Act, (Ill Rev Stats 1965, c 32) provides in part:

“No foreign corporation transacting business in this state without a certificate of authority shall be permitted to maintain an action at law or in equity in any court of this State, until such corporation shall have obtained a certificate of authority.”

It is true that at the time the agreement was entered into and plaintiff did what it did it was without authority to do so. But, it obtained the authority prior to filing suit. We read this section to mean that an out of state corporation with an Illinois based cause of action can’t sue until it has a certificate. This being so, plaintiff is in not out of court.

Even so, defendants tell us that the $4,000 “fee” is really a penalty and not a fee or liquidated damages and since plaintiff neither alleged nor proved damages none can be recovered. The last paragraph of the agreement seems perfectly plain. It says that if defendants select someone other than plaintiff to build after they have performed, there shall be due plaintiff “a fee in the amount of $4,000.00.” On the face of this there is nothing to suggest a penalty. Does the proof belie this ?

The services required of plaintiff on paper were substantial. The fee was to be paid only if they did not get the job. The services were performed — though what actually was done is germane only in discovering whether the words actually used meant something else, that might give us a clue that “fee” means “penalty.” Plaintiff did appear before the plan commission of the city, the change in zoning was effected, it did prepare a feasibility study and the plans did help to secure a commitment for a substantial loan — $190,000. Plaintiff then solicited bids. All this took some doing and in the doing considerable time and some expense. The amount — $4,000 —is not out of line with these services, indeed, reasonable in every respect. Again, we are not saying that the fee should be paid because plaintiff performed these services, rather performance demonstrates that the “fee” is not a penalty — the exaction of an exorbitant sum of money which “does not, in fact, cause anything like equivalent damage to [plaintiff].” Burnett v. Nolen, 336 Ill App 376, 84 NE2d 155. We conclude that the “fee” is not a penalty. Simply put, the agreement gave defendants the option not to contract with plaintiff as their builder but with another and provided in that happenstance for the payment of a sum as liquidated damages as a reasonable recompense for the work they would have already done, since they would be denied the opportunity to be the builder, presumably something that would make up for their labors.

If defendants hadn’t built the building there would have been no fee. If defendants had built it there would have been no fee, and if plaintiff had built it, again, there would have been no fee. But, as we have seen, defendants opted otherwise, and the fee condition became operative. It doesn’t seem a bit unreasonable to us that a very important part of the consideration for this contract was plaintiff’s hope that the apartment would be built and that it would build it, but if not, it should be reasonably recompensed for an agreed figure for the trouble it anticipated it would be put to in performing what was required. Defendants not only agreed that such would be the case under a given circumstance, but they had the right to create the circumstance and they did just that.

Apropos here is the following from Burnett v. Nolen, 336 Ill App 376, 84 NE2d 155, pp 156-157:

“. . . For many years it has been the policy of the courts to constitute themselves the guardians and protectors of the individual who, though competent to contract, has entered into an improvident agreement to pay an exorbitant sum of money in event of his default in some respect which does not, in fact, cause anything like equivalent damage to the other party. Such a provision is called a ‘penalty,’ and the courts refuse to enforce it. On the other hand, courts do not desire to prohibit the parties from agreeing upon a reasonable sum as liquidated damages for breach of contract, especially where the possible damages are of such a nature they cannot be readily calculated or proved. . . .
“The following are some, but not all, of the elements considered by the courts in an attempt to solve the problem: ... (3) The fact that the contract does not purport to require or prohibit a certain act, but merely gives the option to do a particular thing or, in the alternative, pay a stipulated sum. The court may then hold the party had his election.”

What about fraud? Defendants say that they were lulled into the agreement by misrepresentations that the building would not exceed a certain sum. Misrepresentations, as we know, can in some circumstances constitute a fraud and vitiate an agreement. It is an affirmative defense in our context. Thus it must be alleged and proved by clear and convincing evidence. It is not alleged nor would the proof sustain such had it been. It is hard to see how the representations given as to the “not to exceed” figure, induced defendants to enter into this contract. The representation was as to future cost— an opinion — and the differential even then, between it and the final figure was hardly alarming in this day of rising construction costs — which we notice judicially— and the final figure was within the “available financing.” The Court’s various rulings in denying its effect as a defense was not error. What is more, the question of its presence was passed to the jury and their answer, implicit in the verdict, is most assuredly not against the manifest weight of the evidence. We hold that upon defendants’ choice of option (3), terminating plaintiff’s services and contracting with another builder rendered defendants liable for the payment at “that time” of the fee of $4,000 to plaintiff.

Is plaintiff entitled to interest from “that time,” May 1, 1965, to be included in the judgment rendered December 8, 1967? Section 2 of the Interest Act, Ill Rev Stats 1965, c 74, reads:

“Creditors shall be allowed to receive at the rate of five (5) per centum per annum for all moneys after they become due on any bond, bill, promissory note or other instrument of writing; . . . .”

For interest to attach, prior to judgment, absent an agreement, the amount must be fixed, or determinable, and due, in the sense, that a debtor-creditor relationship has come into being. Here, the instrument very clearly said that the fee — indubitably, a fixed amount— would become “due and payable at that time” that defendants opted not for plaintiff but for another builder. It seems clear to us, at that instant interest began to run. The fact that the parties could reasonably differ as to defendants’ liability is not a consideration so far as the statute is concerned. Clark v. Dutton, 69 Ill 521. The fact, too, that the complaint did not ask for interest is of no moment as the Act, where applicable, will be read into the complaint. Haley v. Supreme Court of Honor, 139 Ill App 478. The procedure followed by plaintiff in moving after verdict and before judgment for the inclusion of interest was the proper course and its motion for interest should have been allowed.

Accordingly, the judgment against defendants will be affirmed and the cross-appeal of plaintiff allowed. The cause is remanded with directions that plaintiff’s motion be allowed.

It is so ordered.

Affirmed in part; reversed in part and remanded.

CRAVEN, P. J. and MILLS, J., concur.


text:
    City of Springfield, a Municipal Corporation, Plaintiff-Appellee, v. Dorothea Sager and Helen Runyan, Trustees Under Trust Agreement Dated February 15, 1951, and Carleton Company, a Delaware Corporation, Defendants-Appellants, and Related Causes.
    Gen. No. 10,956. (Abstract of Decision.)
    Fourth District.
    September 3, 1969.

      Graham & Graham, and Brunsman, Beam & Crain, of Springfield, for appellants;
    W. J. Simhauser, and I. J. Feuer, of Springfield, for appellee.
   Opinion by PRESIDING JUSTICE GOLDENHERSH. Not to be published in full.


text:
    Grant R. Ehret, Plaintiff-Appellee, v. Loyal Protective Life Insurance Company, a Corporation, Defendant-Appellant.
    Gen. No. 68-93.
    Fifth District.
    September 3, 1969.

      Wagner, Conner, Ferguson, Bertrand & Baker, of East St. Louis (John M. Ferguson, of counsel), for appellant.
    Sam S. Pessin, of Belleville, for appellee.
   GOLDENHERSH, P. J.

Defendant, Loyal Protective Life Insurance Company, appeals from the declaratory judgment entered in the Circuit Court of St. Clair County after a jury trial. The judgment declares a Major Medical Expense Policy issued by defendant insuring plaintiff and members of his family against loss from sickness and accidental injury to be in full force and effect, that it was not procured by any false, fraudulent or untrue representations of plaintiff, and plaintiff and members of his family are entitled to all benefits pursuant to the terms and provisions of the policy. It further found that plaintiff is entitled to recover any sums expended in payment of medical expenses which defendant owed under the policy provisions, together with interest thereon.

Plaintiff’s complaint alleges the issuance of the insurance policy and payment of the premium; that his wife Dehlia contracted multiple sclerosis, the incurring of medical expenses, and defendant’s refusal to pay in accordance with the terms of the policy. Defendant’s answer sets up as affirmative defenses plaintiff’s failure to reveal prior medical treatment undergone by Dehlia, fraud, and reliance upon plaintiff’s representations in issuing the policy.

The evidence shows that sometime prior to July 12, 1963, plaintiff had purchased from the defendant a Major Medical Expense Policy. On that date Rudolph C. Whitehead, hereafter called Whitehead, an agent of the defendant who had known plaintiff for some time, called at plaintiff’s office; the purpose of his visit was to advise plaintiff that defendant intended to withdraw that particular policy from the market and substitute a more restrictive type; Whitehead suggested to plaintiff that he might wish to amend the policy or rewrite it to include all members of his family within the coverage.

Plaintiff and Whitehead discussed the existing policy and it was decided by plaintiff to include all members of his family.

Mr. Whitehead, reading from the application which he brought with him, read questions concerning the medical information. These questions called for “yes” or “no” answers; as the plaintiff indicated his responses, Whitehead would place an “X” in the appropriate place in the application.

There is a dispute in the testimony with respect to whether plaintiff told Whitehead of his wife’s treatment by a Dr. Teagle and whether when plaintiff signed the application it was filled in, or blank.

Subsequently, Dehlia M. Ehret contracted multiple sclerosis. A claim was made under the policy, denied by defendant, and this litigation followed.

Defendant contends the trial court erred in admitting, over objection, testimony of plaintiff’s statements to Whitehead covering information not reflected by or contained in, and contradictory to the application. Defendant argues that plaintiff represented that the answers and statements contained in the application were true and complete and defendant relied thereon in issuing the policy. In further support of its argument defendant cites the following policy provision:

“No Agent or medical examiner, if any, is authorized to accept risks or pass upon insurability, and no statement made to or by, and no knowledge on the part of, any Agent or medical examiner shall be considered, as having been made to or brought to the attention of the Company unless contained in this Application.”

Defendant contends that plaintiff is charged with knowledge of the contents of the application, and is bound by the terms thereof regardless of whether he read it prior to signing, subsequently, or not at all.

The trial court correctly held parol evidence admissible to show that the application was filled out by Whitehead with full knowledge of the facts of Dehlia Ehret’s prior medical treatment, Andes Ins. Co. v. Fish, 71 Ill 620; Phenix Ins. Co. v. Stocks, 149 Ill 319, 36 NE 408; and the policy provision purporting to restrict the authority of defendant’s agent does not render it inadmissible, Royal Neighbors of America v. Boman, 177 Ill 27, 52 NE 264.

We have examined Jacobson v. Equitable Life Assur. Soc. of the United States, 381 F2d 955, and Carroll v. Preferred Risk Ins. Co., 34 Ill2d 310, 215 NE2d 801, cited by defendant, and do not find them persuasive. In fact, language on page 959 of the opinion in Jacobson tends to support plaintiff’s contention that the evidence was admissible.

In the course of the conference on instructions defendant requested the court to submit the case to the jury upon six special interrogatories pertaining to specific findings of fact, and that no general verdict be submitted. The court submitted the special interrogatories and also a general verdict, and defendant contends that in submitting the general verdict, the court erred. It also argues that the answers to the special interrogatories are inconsistent with the general verdict, and the general verdict finding the issues in favor of defendant cannot stand.

The Declaratory Judgments statute (c 110, § 57.1(4), Ill Rev Stats 1967) provides:

“If a proceeding under this section involves the determination of issues of fact triable by a jury, they shall be tried and determined in the same manner as issues of fact are tried and determined in other civil actions in the court in which the proceeding is pending.”

Section 65 of the Civil Practice Act (c 110, Ill Rev Stats 1967) provides:

“Unless the nature of the case requires otherwise, the jury shall render a general verdict. The jury may be required by the court, and must be required on request of any party, to find specially upon any material question or questions of fact stated to them in writing.”

Section 154 of the Illinois Insurance Code (c 73, § 766, Ill Rev Stats 1967) provides that no misrepresentation or false warranty made by an insured in an application for insurance shall defeat or avoid a policy “. . . unless it shall have been made with actual intent to deceive or materially affects either the acceptance of the risk or the hazard assumed . . . .”

The materiality of false representations in an application for insurance is a question of fact for the jury, Mooney v. Underwriters at Lloyd’s, London, 33 Ill2d 566, 213 NE2d 283. The existence of an actual intent to deceive is ordinarily a fact question. 37 CJS 454. Nothing indicates that the nature of the case “requires otherwise” and the court properly submitted a general verdict to the jury. The answers to the three special interrogatories (numbers 3, 5, and 6) which are material to the issues are consistent with the general verdict, and answers to special interrogatories numbered 1, 2, and 4, could not control the general verdict because under the provisions of Section 154 of the Illinois Insurance Code (supra) they could not defeat or avoid the policy.

Defendant’s special interrogatory number 6 reads:

“Do you find that the medical complaints, disorders and treatment of Dehlia Ehret, the wife of the plaintiff, prior to the date of the application for insurance from defendant on July 12, 1963, were material to the risk of defendant in issuing the insurance policy ?”

The jury answered it “no” and defendant contends the answer is not supported by the evidence. From our examination of the testimony of Dr. Teagle we do not agree.

Defendant contends the trial court erred in not permitting it to open and close the final argument. In order to prevail plaintiff was required to prove certain allegations of the complaint denied in defendant’s answer and the court did not err in its ruling. Liptak v. Security Benefit Ass’n, 350 Ill 614, 183 NE 564.

Defendant contends that plaintiff’s counsel, in closing argument, improperly referred to the interrogatories and the court erred in overruling an objection made at that time. The record shows that counsel told the jury what the interrogatories would be and suggested what the answers should be. This was proper, Chicago & A. R. Co. v. Gore, 202 Ill 188, 66 NE 1063, and the record does not reflect argument of the type condemned in Sommese v. Maling Bros., Inc., 36 Ill2d 263, 222 NE2d 468 or erroneous instruction as in Swanson v. Chester Johnson Elec. Co., 5 Ill App2d 175, 125 NE2d 304, cited by defendant.

For the reasons stated, the judgment of the Circuit Court of St. Clair County is affirmed.

Judgment affirmed.

MORAN and EBERSPACHER, JJ., concur.


author: RYAN, J.

text:
    Brian Gengler, Plaintiff, v. Albert D. Hendrick and Schwerman Trucking Company, a Wisconsin Corporation, Defendants-Third-Party Plaintiffs-Appellants, and Mack Trucks, Inc., and Bendix-Westinghouse Automotive Air-Brake Company, a Corporation, Defendants-Third-Party Defendants-Appellees, v. Mack Trucks, Inc., and Bendix-Westinghouse Automotive Air-Brake Company, a Corporation, Third-Party Defendants-Appellees.
    Gen. No. 68-50.
    Third District.
    September 9, 1969.

      Bozeman, Neighbour, Patton, Henss and Noe, of Moline, for appellants.
    Peter H. Lousberg and Ira J. Melaas, of Rock Island, for appellees.
   RYAN, J.

This case arose out of a collision between a Honda motorcycle and a Mack truck pulling a cement trailer. The collision occurred when the truck entered a through highway without stopping for a stop sign and proceeded into the path of a motorcycle which was being operated on the through highway. One Gengler, who was the operator of the motorcycle, survived to bring a suit for damages against Albert D. Hendrick, who was the truck driver, and against Schwerman Trucking Company, who was the owner of the truck and the employer of Hendrick. By an amended complaint, plaintiff added Mack Trucks, Inc., who was the truck’s manufacturer, and Bendix-Westinghouse Automotive Airbrake Company, who was the manufacturer of the truck’s brake, as additional defendants on the theory of a defective brake. Hendrick and Schwerman filed their answer and denied the material allegations of the complaint and alleged that there was a brake failure which was not the result of any negligence on their part but was solely and entirely caused by a defective product. Hendrick and Schwerman further filed a third-party complaint against Mack Trucks and Bendix seeking indemnity in the event they were held liable. After four days of testimony and at the close of all the evidence, Hendrick and Schwerman moved to amend their third-party complaint by changing their theory of third-party defendants’ liability. The original third-party complaint alleged that the accident occurred only by reason of brake failure. The proposed amended third-party complaint alleged that the fault of Hendrick and Schwerman, if any, was of a less substantial nature or degree than the fault of Mack Trucks and Bendix; and, that Hendrick and Schwerman were only secondarily responsible, if at all, while Mack Trucks and Bendix were primarily responsible for the accident. The Court denied the motion to amend the third-party complaint and granted a motion to strike it. The jury was instructed as to the negligence theory against Hen-drick and Schwerman and as to the strict liability theory as to Mack Trucks and Bendix. The jury returned a verdict in favor of the plaintiff, Gengler, and against the defendants Hendrick and Schwerman. No liability was found as to Mack Trucks or Bendix. Judgment was entered on the verdict.

Hendrick and Schwerman have appealed, alleging as errors the rulings of the Trial Court in denying the motion to amend the third-party complaint and in granting the motion to strike it.

The accident in question occurred at the intersection of two state highways, Route 6, which is an east-west highway, and Route 150, which is a north-south highway. At the place of the collision, Route 150 joins Route 6 from the south only in the form of a T. Route 150 traffic is required to stop at its intersection with Route 6, which is a through highway. Immediately prior to the accident, Hendrick was operating the Mack truck on Route 150 and proceeding in a generally northerly direction as he approached the T intersection with Route 6. Hendrick testified at the trial that when he was some 700 feet from the intersection and traveling at a speed of approximately 45 miles per hour, he applied the foot brake but it failed to respond, and after several attempts in which there was no action, the truck rolled through the intersection at about 35 miles per hour. However, he did not sound the truck’s horn or give any kind of light signals as a warning to other vehicles. He did not turn off the ignition. He did not activate the arm on the steering column or hand lever on the dashboard which controlled the trailer brakes until he had passed the intersection. After crossing the intersection, he finally used the hand lever on the dashboard to apply the trailer brakes and stopped the truck immediately. Hendrick further stated that it would only take about one-half second to activate the trailer brakes in this way. A former shop foreman for Schwerman testified that at a speed of 40 miles per hour the truck could be brought to a stop in a distance of 120 feet by applying the trailer brakes only.

The immediate cause of the brake failure was the breaking of an adapter plate which is a part of the braking mechanism. The adapter plate was made of aluminum and fastened with steel bolts. Schwerman had removed the plate for maintenance three days before the accident. The bolts had most probably been cross-threaded during such maintenance by Schwerman and such cross-threading most probably brought on the failure. There was some testimony to indicate that the cross-threading and consequent breaking might not have occurred if the plate had been made of a harder material than aluminum. On the other hand, there was nothing wrong with the adapter plate. It was sufficiently strong to fulfill its function and would not have broken except for the cross-threading. At the time of the accident, the truck was approximately five years old with 200,000 miles on it. As cross-threading would have caused the plate to break shortly afterwards, the cross-threading could not have taken place during the manufacture or assembly of the brake or truck by Bendix or Mack Trucks.

What appellants are seeking by this appeal is a new trial of a matter that has been thoroughly litigated between the parties. Their only complaint concerns the disposition of the Trial Court with reference to their third-party complaint. There is no complaint about the verdict of the jury which found no negligence on the part of Mack Trucks or Bendix but which found active negligence on the part of Hendrick and Schwerman.

Essentially the same situation occurred in the case of Chas. Ind Co. v. Cecil B. Wood, Inc., 56 Ill App2d 30, 205 NE2d 786. In a prior trial a personal plaintiff sued Ind, Wood and the City of Rockford. The jury found for the plaintiff against Ind, but found Rockford and Wood not guilty. During that jury trial Ind attempted to show the accident was caused by the negligence of Wood. The jury found Ind solely responsible. Ind satisfied that judgment and brought suit against Wood for indemnity. The trial court found for Wood and on appeal was affirmed on the grounds Ind was barred by the verdict in the original action. On rehearing, the court adhered to its opinion. Leave to appeal was denied. At page 790 of 205 NE2d, the court stated:

“The parties here do not dispute that if Ind were guilty only of technical or passive negligence by virtue of the active negligence of Wood, imputed to it, Ind would then have a right to indemnity against Wood. But just as certainly, Ind cannot prevail upon this theory unless Wood is first found guilty of negligence. It is an essential part of the jury’s verdict in the first case that Wood was found to have been guilty of no negligence giving rise to plaintiffs’ injuries. Ind, having, in fact, actively sought in the first suit to establish responsibility upon Wood for the injuries complained of there, is now estopped from again asserting that it was the negligence of Wood which caused these injuries. The jury’s verdict has settled that matter. Ind did not appeal that judgment imposing liability solely on it, although it here suggests not only that the finding of no negligence on the part of Wood is contrary to the manifest weight of the evidence, but also that a contrary finding should have been made as a matter of law. Having once litigated that question, and having failed to appeal an adverse decision, Ind may not now seek a second day in court in the form of this action to relitigate the same question.”

The doctrine of estoppel by verdict was reaffirmed in Creeco Co. v. Northern Illinois Gas Co., 73 Ill App2d 218, 219 NE2d 257. The Court stated:

“Briefly stated, the doctrine of estoppel by verdict is that when some specific fact or question has been actually and directly an issue and has been adjudicated in a former suit and the same fact or question is again put in issue in a subsequent suit between the parties or their privies who were parties in a former suit, the determination of that fact or question in the former suit, if properly presented and relied on, is conclusive upon the parties and their privies in the latter suit, without regard to whether or not the cause of action is the same in both suits. It is not necessary that the parties in the prior litigation were on opposite sides or that the issues between them were raised by pleadings so long as the parties were adversaries in fact.”

Although the instant appeal does not involve a separate suit, it clearly involves the doctrine of estoppel by verdict. After the original third-party complaint had been filed, the plaintiffs amended their complaint and added an additional count raising exactly the same questions against the third-party defendants as the original defendants had raised against the third-party defendants in their third-party complaint. Hence, dismissal of the third-party complaint took nothing from the jury so far as the issues were concerned so long as the amended complaint of the plaintiff remained. Furthermore, inasmuch as the original third-party complaint was not stricken until at the close of all the evidence, the original defendants and the third-party defendants were in fact adversaries. This situation makes moot the question of the correctness of the Court’s ruling in striking the third-party defendants’ complaint. The matter has been thoroughly litigated. In this case Hendrick and Schwerman had a common interest with plaintiff Gengler to show a defective product. Schwerman made available to plaintiff its expert witness, whose testimony was adopted by him. Former employees of Schwerman were called as witnesses by plaintiff and Schwerman would make the witness his witness for additional questions. In final argument to the jury, plaintiff’s attorney argued defective product and Schwerman’s attorney devoted a major part of his final argument attempting to lay the blame on the manufacturers. The jury was instructed as to the law regarding manufacturer’s liability for defective products. The jury found Hendrick and Schwerman guilty of negligence. It absolved Mack Trucks and Bendix. Under the facts, the negligence of Hendrick and Schwerman could not have been deemed passive but was, in fact, active negligence. A finding of active negligence would bar a joint tort-feasor from indemnity. There appears to be little question concerning the law in Illinois regarding indemnity between joint tort-feasors. In the case of Miller v. DeWitt, 37 Ill2d 273, 226 NE2d 630, our Supreme Court said at page 641:

“. . . while Illinois does not allow contribution among joint tort-feasors, it does allow a passively negligent tort-feasor to obtain indemnification from an actively negligent tort-feasor. Griffiths & Son Co. v. National Fireproofing Co., 310 Ill 331; Chicago and Illinois Midland Railway Co. v. Evans Const. Co., 32 Ill2d 600.”

The corollary is that if a tort-feasor is guilty of active negligence, he is barred from indemnity. Spivack v. Hara, 69 Ill App2d 22, 216 NE2d 173.

Since we believe that the jury verdict necessarily involved a finding of active negligence on the part of Hendrick and Schwerman, we can only conclude that the alleged error of the Trial Court in refusing to allow an amendment of the third-party complaint is likewise moot. The doctrine of estoppel by verdict applies with equal force here.

For the reasons given, the judgment of the Circuit Court of Rock Island County is affirmed.

Affirmed.

STOUDER, P. J. and ALLOY, J., concur.