author: MR. JUSTICE ABRAHAMSON

text:
    Miller Bros. Industrial Sheet Metal Corporation, an Illinois Corporation, Plaintiff-Appellant, v. La Salle National Bank, etc., et al., Defendants-Appellees, Thomas J. Duffey, et al., Appointed and Presently Acting as Trustees of The Central States, Southeast and Southwest Areas Pension Fund, Holders of Notes Secured by Documents Nos. 1046444 and 1075681, Counterclaimant-Appellees in Mortgage Foreclosure, Armco Steel Corporation, et al., Pittsburgh Plate Glass Company, et al., and Unknown Owners, Cross and Defendant-Countercomplainant-Appellees in Mechanic’s Lien Foreclosure.
    Gen. Nos. 69-20, 69-24. (Consolidated.)
    Second District.
    December 31, 1969.
    Rehearing denied March 16, 1970.

      Charles A. Marshall, Jr., of Chicago, for appellant.
    Teitelbaum, Wolfberg and Guild, of Chicago, and A. Edmund Peterson and Leonard Higley, of Chicago, Ronald J. Guild, Leonard Higley, of counsel, for Trustees of the Central States Southeast and Southwest Areas Pension Fund, appellees.
    Robert M. Woodward, Robert M. Grossmann, Albert E. Arnstein, Amstein & Levin, Marvin Green, Hoffman and Davis, Seyfarth, Shaw, Fairweather & Geraldson, Craven, Stege & Markels, Ashcraft, Olson, Beach, Kimball, Alexander & Edmonds, O’Brien, Heywood & Evans, Wexler & Wexler, Samuel H. Cohon, and Robert Irmiger, all of Chicago, Murphy & Griffin, Ruddy, Myler & Bartsch, Charles H. Atwell, Dreyer, Foote & Streit, Reid, Ochsenschlager, Murphy & Hupp, Alschuler, Putnam, McWethy, Weiss & Weiler, O’Brien, Burnell, Puckett & Barnett, and Colonel Charles H. Edwards, Edwards, Brunnemeyer & Hughes, all of Aurora, Smith & McCracken, of Geneva, Ronald Burstein and Edward A. Glaeser, of Dundee, Kirkland, Brady, McQueen, Martin & Callahan, of Elgin, Samuel Andreano, of Joliet, and Redman, Shearer & O’Brien, of St. Charles, for, other appellees.
   MR. JUSTICE ABRAHAMSON

delivered the opinion of the court.

Two separate appeals have been prosecuted from a decree of foreclosure and sale entered by the Circuit Court of Kane County and have been consolidated for purpose of consideration by this court. Although the suit involved a large number of parties and the trial record is voluminous, the issues before this court are relatively few and the facts need only brief exposition.

On May 20, 1965, La Salle National Bank as Trustee, the record owner of the property commonly known as the Aurora Downs Race Track, executed a trust deed to Chicago Title and Trust Company as trustee to secure a note in the principal amount of $850,000. The note was held by the Trustees of the Central States, Southeast and Southwest Areas Pension Fund (hereinafter called “Pension Fund”) as evidence of their loan in that amount to finance the purchase of the property. On August 20, 1966, La Salle executed a second trust deed to Chicago Title to secure a note in the amount of $750,000 for funds advanced by the Pension Trust to partially finance a modernization of the track. The proceeds from both loans were disbursed through escrows established at Chicago Title.

On March 15, 1967, Miller Bros. Industrial Sheet Metal Co. (hereinafter called “Miller Bros.”) filed a complaint to foreclose a mechanic’s lien claimed on the property and alleged that the lien was superior to the interest claimed by Chicago Title and made them party defendant. On May 3, 1967, the complaint was amended to name numerous other lien claimants as parties including Pittsburgh Plate Glass Company (hereinafter called “Pittsburgh”) and the Pension Fund. Pittsburgh and the other claimants answered the amended complaint and filed counterclaims to foreclose their own alleged mechanics’ liens against the property for labor and material expended in the modernization of the track.

On June 16, 1967, Chicago Title as trustee under the two trust deeds and the Pension Fund answered the amended complaint and various counterclaims and denied that their liens were subject or subordinate and, by countercomplaint, the Pension Fund sought foreclosure of the trust deeds for default in the repayment of the loans made by them. Thereafter, the record is filled with petitions of other claimants to intervene, cross-claims, answers, motions and other pleadings filed by the seventeen, different attorneys that appeared in the cause.

On October 25, 1968, the trial court entered a decree of foreclosure that found that the Pension Fund had a first lien against the property in the amount of $1,013,-840.16 for principal, interest, costs and attorneys fees by virtue of the trust deed recorded in 1965 and a lien in the amount of $787,070.56 by virtue of the trust deed recorded August 20, 1966, that was junior to the lien of the first trust deed but senior to the rights of all other parties. The decree further found that certain mechanic’s lien claimants had perfected their liens and reserved the question of “enhancement” to the property pursuant to section 16 of the Mechanics’ Lien Act (Ill Rev Stats 1967, c 82, § 16) for further determination. A further provision found that certain other claimants, including Miller Bros, and Pittsburgh, had proven their claims only against the realty and the owner and that their liens were junior both to the Pension Fund and to the perfected liens of the other claimants. Miller Bros, and Pittsburgh both appealed from that decree on the grounds that they were entitled to the priority of perfected lien claimants and for other reasons.

On June 16, 1966, Pittsburgh entered into a contract with G.T.O. Steel Erectors, Inc., the general remodeling contractor, to furnish the labor and material for the installation of a plate glass curtain wall at the track for an agreed consideration of $58,500. On July 1, 1966, Pittsburgh entered into an identical agreement with the Haber Corporation to do the same work for the same consideration as an additional security for payment. The second contract was personally guaranteed by the beneficiaries under the land trust that held legal title to the property. The contracts provided that payments would be made as the work progressed on the basis that 90% of the value of all materials delivered and work completed during a month would be paid by the 10th day of the following month and the balance paid in full upon completion of the contract.

As the work progressed, Pittsburgh submitted applications for payment in August, September and October, 1966, for 90% of the work completed during the prior months. The application dated October 11, 1966, showed that $40,000 of the work had been completed and that, after the 10% retention, $36,000 was then due. On October 20, Pittsburgh was paid the $36,000 from the construction loan escrow after it had submitted a partial waiver of lien for work done to that date.

On November 1, a further application was submitted that stated that all of the work had been completed including $161 in “change orders” and that $22,661 was due as of that date. The application was marked as “Final” in two places and no part of the total amount due was to be retained. Identical statements were submitted in the months following and were never paid.

On March 6, 1967, Pittsburgh served the record owner, La Salle, with notice that $22,661 was due them and stated that the work had been completed December 6, 1966. On March 8, 1967, a claim for lien in that amount was filed with the office of the recorder of Kane County that also stated that the work was completed December 6. Pittsburgh’s counterclaim and amended counterclaim to foreclose their lien also alleged the work had been completed December 6.

On appeal, Pittsburgh maintains that it was uncontested that they had completed the work provided in the contracts with G.T.O. and Haber; that they were still owed the balance of $22,661; and, that they had perfected their lien rights as provided in the Mechanics’ Lien Act and were entitled to the priority afforded to the other perfected claims in the decree entered by the trial court. They further contend that the trial court erroneously provided that interest on the amount due would be computed from the date of the decree rather than the date the full amount was due.

Although the decree does not contain any factual findings to support the priorities of claims, it is apparent that the court concluded that Pittsburgh had failed to record a notice of lien within four months after completion of the work. Section 7 of the Act (Ill Rev Stats 1967, c 82, § 7) provides that no contractor “shall be allowed to enforce such lien against or to the prejudice of any other creditor or encumbrance . . .” unless, within four months after completion of the work or within four months of the completion of “extra or additional” work the contractor has brought suit to enforce his lien or filed a verified claim for lien in the office of the recorder of deeds.

The only testimony offered in regard to the Pittsburgh claim was that of Normal W. Allen, the branch manager. Allen identified numerous invocies that indicated the dates work was done at the track. From the invoices, he testified that men were dispatched to the job on January 11, 1967, and the work “completed” one or two days later. The invoices did not indicate that any work was done between October 31 and January 11.

On cross-examination, Allen testified that three glazers were sent to the job on January 11 to reset some gasket material on certain lights that had worked loose. He stated that the work had been previously “in general completed” and that the resetting was “. . . something that may have been omitted or corrective work. . . .” There was no additional billing to Haber or G.T.O. for the work in January and the invoice was charged to the “contract,” or considered part of the agreed contract price.

Pittsburgh here contends that the work done on January 11 was an integral part of the original contract and that therefore its notice was filed within the time limit of the statute. Both parties have cited our recent decision rendered in De Anguera v. Arreguin, 92 Ill App2d 381, 234 NE2d 808. In that case, the lien claimant furnished windows and doors in a new home in March, 1965. In November, 1965, he returned to the home and installed clamps and handles that were necessary to make the windows operable. We held that the issue was whether the work done was “trivial and inconsequential in character or was essential to the completion of the contract” and concluded that the finding of the trial court that the work of November, 1965, was not inconsequential was not against the manifest weight of the evidence.

We likewise conclude here that the finding of the trial court that Pittsburgh had completed the contract within the meaning of section 7 prior to November 1, 1966, was not against the manifest weight of the evidence. The applications for payment prepared and submitted by Pittsburgh clearly indicate that they considered the work completed prior to that date and that they were entitled to the entire balance due on the contract. Although Allen’s testimony that three glazers returned to the track on January 11 was unrefuted, it is evident that their activity was in the nature of maintenance of a completed job rather than the completion of the contract itself. A “re-setting” of the loose gaskets obviously implies that there had been an earlier “setting” and that the subsequent work was to correct some malfunction. It would be inconsistent with the rules of strict construction that must be used in relation to the Mechanics’ Lien Act to find that the time to file a lien could be extended by maintenance or correction of completed work. Accordingly, we find that the position of the Pittsburgh claim among the priorities established by the trial court was not in error. Since we conclude that Pittsburgh had no enforceable lien against the Pension Fund, the issue as to when interest should commence is not material to this appeal.

The claim of Miller Bros, is based on a contract dated June 20, 1966, with the Haber Corporation (and also guaranteed by the beneficiaries of the La Salle land trust) to repair and renovate the heating and ventilation systems at the racetrack and furnish the other sheet metal work. Miller Bros, was to be paid on the basis of labor expended and materials furnished with an additional 10% of the costs of the materials as profit and overhead.

On March 15, 1967, as we have discussed above, Miller Bros, filed a complaint to foreclose its alleged mechanic’s lien against the property and for judgments against the Haber Corporation on the contract and against the guarantors. The complaint alleged that the work had been completed December 22, 1966, and that they had been paid $155,738.20 with an unpaid balance due of $163,849.03. The Haber Corporation and the guarantors in their answer alleged that Miller Bros, had already been overpaid on the contract and brought counterclaim for $350,000 for allegedly defective work furnished by them. The complaint against Haber and the guarantors and the counterclaims were subsequently dismissed on the stipulation of the parties.

Miller Bros, maintains that since their notice was properly recorded and suit instituted within four months of the completion of their work, that their lien was effective as of the date of their contract (June 20) pursuant to section 1 of the Mechanics’ Lien Act (Ill Rev Stats 1967, c 82, § 1) and had absolute priority over the trust deed of August 20 and that they were entitled to prove enhancement as to the earlier encumbrance. The trial court found that Miller Bros, had perfected their lien only against the owner and the property and in the amount of $122,230.29 since a portion of their total claim was owed other subcontractors that had established prior liens.

On January 18, 1967, Miller Bros, executed and delivered to the Haber Corporation a document entitled “Partial Waiver of Lien” that stated that in consideration of the payment of $56,851.23 Miller Bros. “. . . hereby waive and release any and all lien or claim or right of lien under the Statutes of the State of Illinois . . . on account of labor or services, material, fixtures or apparatus heretofore furnished to this date. . . .” Philip C. Miller, the president of Miller Bros., testified that the $56,851.23 had been paid in three installments and that on January 18 they received only the last installment of $10,611.03. Affidavits were submitted by Miller and by Thomas Cooper, the president of Haber, to the effect that both parties understood that there was a substantial balance owed Miller Bros, on January 18 and that the waiver was partial only and was not intended, despite its language, as a complete waiver for all work done to that date.

On appeal, Miller Bros, contends that the trial court should have permitted Miller and Cooper, who were present in open court, to testify as to their intentions at the time the waiver was executed and delivered and that the court should have reformed the waiver in accordance with the intention of the parties since the instrument was itself ambiguous and contradictory.

It is of course axiomatic that a written instrument is presumed to show the intention of the parties and will not be reformed unless the evidence of mutual mistake or other grounds for reformation is strong and convincing. Michigan Mut. Liability Co. v. Type & Press Co. of Illinois, 62 Ill App2d 364, 210 NE2d 787; Almer Coe & Co., Inc. v. American Nat. Bank & Trust Co. of Chicago, 44 Ill App2d 104, 110, 194 NE2d 14; Hardy v. Greathouse, 406 Ill 365, 94 NE2d 134. It has been said that the evidence that the written agreement does not express the intention of the parties must be “. . . such as will strike all minds alike as being unquestionable and free from reasonable doubt.” Christ v. Rake, 287 Ill 619, 122 NE 854.

We do not think the evidence submitted met this strenuous test. The affidavit of Thomas Cooper was contradicted by his prior averment on behalf of Haber Corporation that Miller Bros, had been in fact overpaid. The waiver itself expressly stated in the body that any and all liens or claims of liens were waived for work done to the date it was signed. As further argument that the parties intended only a partial waiver, Miller Bros, cites the patent absurdity of delivering a complete waiver when over $160,000 was still due. However, at the time the waiver was delivered they had the written promises of both the Haber Corporation and the owners of the beneficial interests in the land trust to make complete payment.

Under the circumstances, we do not feel that the trial court erred in its refusal to reform the waiver of lien dated January 18, 1967. Since Miller Bros, did no work after that date, we are of the opinion that the decree of the trial court was correct in all respects and should be affirmed.

Affirmed.

DAVIS and SEIDENFELD, JJ., concur,


source: Caselaw Access Project

author: ALLOY, J.

license: Public Domain

text:
    Charlotte Proud, Plaintiff-Appellee, v. W. S. Bills & Sons, Inc., an Illinois Corporation, Defendant-Appellant, and Union Corporation, an Illinois Corporation, Defendant.
    Gen. No. 69-57.
    Third District.
    January 8, 1970.
    Rehearing denied February 12, 1970.

      Gates W. Clancy, of Geneva, for appellant.
    Berry & O’Conor, of Streator, for appellee.
   ALLOY, J.

This is an appeal from a judgment of the Circuit Court of LaSalle County, entered pursuant to motion for summary judgment, against defendants, W. S. Bills & Sons, Inc., a corporation, and Union Corporation, a corporation, in the sum of $27,000 plus costs.

The action was instituted by plaintiff, Charlotte Proud, for damages sustained when a building on her property collapsed as a result of excavations made on adjoining property. The defendants in the action were the owner of the property, Union Corporation, an Illinois Corporation, and W. S. Bills & Sons, Inc., the contractor excavating for the owner. The defendant-contractor, W. S. Bills & Sons, Inc., appeals from such judgment.

The building owned by the plaintiff was located on Main Street in Streator, Illinois. Defendant Union Corporation was the owner of the adjacent property. Union Corporation intended to demolish the building on its property in order to construct a new bank building on the site. The new construction required an excavation extending more than eight feet below the surface.

The provisions of chapter 70 of 1967 Ill Rev Stats, par 10, dealing with Protection of Adjacent Landowners became applicable. This statute provides that if an excavation is to be made which is less than eight feet in depth and is such as might cause damage to a building on adjoining land, the “owner or possessor” of the land on which the excavation is to be made, shall notify the adjoining property owner of such work and allow him 30 days in which to take steps to protect the building from damage. In section 2 of said Act, it is expressly provided that if the “owner or possessor” of the land on which the excavation is to be made fails to comply with the statute, he is liable for damages to the building on the property adjoining the excavation site.

Section 5 contains provisions in the event the excavation is deeper than the eight-foot standard depth foundations. Such section provides expressly:

“If the excavation is intended to be or is deeper than the standard depth of foundations as herein defined, then the owner of the land on which the excavation is being made, if given the necessary license to enter on adjoining land, and not otherwise, shall protect the said adjoining land and any building or other structure thereon, without cost to the owner thereof, by furnishing lateral and subjacent support to said adjoining land and all buildings and structures thereon, in such a manner as to protect the same from any damage by reason of the excavation and shall be liable to the owner of such property for any damages to the land or to any buildings or other structures thereon.”

Section 6 of the Act provides:

“The owner or possessor of the land upon which the excavation is being made shall also be liable to occupants and tenants of such adjoining lands or structures thereon for any damage to their property or business, proximately resulting from injury to such land or structures, caused by the failure of such owners or possessor, making such excavation, to fulfill the duty set forth in subparagraph 5.”

Union Corporation notified plaintiff of its intention to excavate, and the two parties entered into an agreement with respect to the party wall and the excavation. This agreement was entered into on December 29, 1966, and provided that the party wall was to be the sole property of plaintiff, Charlotte Proud. In such agreement is found the following provision:

“It is, however, further agreed between the parties hereto that said first party [Union Corporation] in order to protect the old party wall may construct such additional supports or underpinning as may be considered advisable by its engineers or agents and will have the right to cap said old party wall and the new wall to be constructed by said first party as in its opinion, or in the opinion of its engineers or agents will be advisable to avoid the accumulation of moisture between the old party wall and any additional wall that may be built by said first party. Said first party shall protect and save harmless the said second party [Charlotte Proud] from any structural damage to said old party wall occasioned by the construction as above provided of additional supports or underpinning in, or under the foundation of said old party wall, or in the capping of said old party wall by said first party herein described.”

On January 6, 1967, defendant Union Corporation entered into a contract with W. S. Bills & Sons, Inc. whereby the contractor, W. S. Bills & Sons, Inc. agreed to perform all services and furnish all materials necessary to erect the new bank building for Union Corporation. The contractor also was to excavate and protect the west wall of the Proud building. The agreement also provided that the contractor was to hold Union Corporation harmless of any claims for damages as a result of the contractor’s work, including any damages to the Proud building.

The contractor began the excavation and dug to a depth of twelve feet, putting underpinnings under the Proud building foundation every six feet. On May 21, 1967, the west wall of the Proud building began to separate from the south wall at the grade line and dirt was observed falling away from beneath the wall. That night the entire west wall fell, causing the Proud building to collapse.

Plaintiff Charlotte Proud filed a complaint against both defendant-owner, Union Corporation, and the contractor, W. S. Bills & Sons, Inc. The complaint was in one count and it alleged the facts referred to generally herein, including the indemnity agreement between the owner and contractor. The complaint charged that the defendant-contractor failed to install the necessary support for the west wall of the Proud building and as a proximate result of such failure, the west wall of the Proud building collapsed causing damages to plaintiff’s building of $28,000. The contractor’s motion to strike such complaint was denied and contractor then filed an answer denying all but the ownership and location of the lots. Defendant-owner also answered the complaint.

Plaintiff thereafter moved for summary judgment and attached four exhibits in support of the motion. One exhibit was the affidavit of a Mr. McNamara, Chairman of the Board of the Union National Bank of Streator. This affidavit specified that the bank owned the property and referred to the agreement with Charlotte Proud as to the west wall of her building and the agreement with the contractor, including the indemnity provisions. The affidavit likewise stated that the excavation was deeper than the eight-foot standard of the Illinois statute and that supports installed by the defendant-contractor were not sufficient, causing the Proud building to collapse. The affidavit also disclosed that Union National Bank had purchased the property from plaintiff on January 31, 1968, after the collapse of the building, for $8,000. Plaintiff had at the same time assigned her cause of action for destruction of the building to Union National Bank for $27,000. Another exhibit attached to the motion for summary judgment was an excerpt from a deposition of W. S. Bills in which he explained that the underpinning of the Proud wall went to a depth of twelve feet but failed to hold the wall. A third exhibit was the affidavit of a real estate broker, James Thorpe, who stated that on May 31, 1967, the Proud building was worth $23,000 and that the lot was worth $12,000, making a total valuation of $35,000. He also stated that it would cost $4,000 to clear the rubble, making the net value of the property (after the building collapsed) $8,000 (this fixed the loss due to the collapse of the building at $27,000, i. e„ $35,000 less $8,000). Another exhibit was an affidavit establishing that it would cost $42,000 to reconstruct the building.

The record indicates there is controversy as to when notice of hearing on the summary judgment motion was given to attorneys for the defendant-contractor. Proof of mailing of the notice of the hearing together with a copy of the motion for summary judgment and supporting affidavits, was filed in court showing mailing on November 4, 1968. The attorney for the contractor denied receiving such notice. On November 27, 1968, the date of the hearing on the motion for summary judgment, such attorney failed to appear. The hearing was then continued until November 29, 1968, and the attorney for the contractor was personally notified of this new hearing date. The attorney for the defendant-contractor appeared on November 29, 1968, and the matter was then heard. The record discloses no written request for a continuance made by attorney for the contractor when he appeared on November 29, 1968, although an oral request therefor was apparently made. Summary judgment was entered on November 29, 1968, against both defendants in the amount of $27,000. The contractor filed a post-trial motion and attached an affidavit of a Mr. Thorson. The affidavit based on information and belief stated that the value at $35,000 set for the Proud building resulted from an offer to purchase which was made by Union Bank to Charlotte Proud prior to May 31, 1967. The post-trial motion of the contractor was denied.

On appeal in this Court, defendant-contractor asserts that the judgment was improper for the reason that there could be no action under chapter 70, paragraph 10, 1967 Ill Rev Stats, on the strict liability theory as against the contractor as opposed to an owner or possessor of the land; that plaintiff could not sue directly on the contract of indemnity from the contractor to the owner; that plaintiff’s complaint does not sufficiently allege the granting of the necessary license to the “owner or possessor” required by the statute; that there were material issues of fact capable of different inferences by reasonable men so that summary judgment was, therefore, improper; and, that it was an abuse of discretion in the trial court to hold the hearing for summary judgment on November 29,1968.

The basic issue before us in this cause is whether the Illinois statute relating to “Protection of Adjacent Landowners” permits a direct action not only as against the record title owner of the land but also against an independent contractor working for the record title owner.

The statute under consideration was passed in 1957 and it changed the common-law rule with regard to the duty to support adjacent land. Under common-law precedents, the owner of improved property adjoining an excavation site had the duty to protect his own property from damage resulting from an excavation on adjoining property. The statute under consideration changed this duty when the excavation exceeded eight feet and placed the responsibility on the party excavating to support the land and adjacent property. It is apparent that the policy of the 1957 statute was to protect property owners with improved property whenever an excavation was being made on adjoining land which exceeded eight feet in depth. It is argued that if the contractor making the actual excavation were to be held subject to such strict liability along with the property owner, he would tend to be more diligent in making his excavation, and, thus, protection of the adjoining property owner (the objective of the statute), would be better served. Since the policy of the statute is to protect the adjoining property owner, then the statute should reasonably be construed in such manner as to make the protection effective. Under the rules relating to statutory construction, a statute such as the Illinois Statute passed in 1957 should not be construed as changing common-law interpretations unless there is a clear and specific intent expressed in the statute. Under the common law, action against both the property owner and the excavator was permitted in lateral support cases, such as provided for in section 1 of the Illinois Act, where reference is made to “owners and possessors,” with no other specification.

There have been no Illinois cases which have been called to our attention or which we have discovered which determined whether an excavator can be sued under the provisions of chapter 70, paragraph 10, 1967 Ill Rev Stats. Prior, to the 1957 Act, the common law of Illinois governed the question of lateral support. As we have indicated, under the common law in Illinois, a landowner had the right to recover for injury to unimproved land caused by removal by his neighbor of lateral support even though there was no negligence involved. If the excavator was negligent, the adjoining landowner could recover for injuries to both his land and his buildings even though there would have been no damage without the added weight of a building. Where an excavation was performed without negligence and the excavation resulted in injury to improved land next adjoining, there was no recovery if the injury would not have occurred if there had not been added the weight of the building.

Because of apparent confusion in certain cases in the State of Illinois relating to a nonnegligent excavation where property had been improved and was damaged by excavation on adjoining land, the legislature passed the Act under consideration in this case. In subparagraph 1 of this statute, it is expressly stated that the Act applies to “any owner or possessor of land intending to make or permit an excavation to be made upon his land,” and such subparagraph requires that the owner or possessor notify the adjoining landowner and places the burden of providing support on the adjoining owner if the excavation is eight feet or less. Under subparagraph 5, however, if the excavation is to be in excess of eight feet “then the owner of the land on which the excavatian is being made,” if given a license to do so, is required to provide support for the adjoining land. One question before us is whether this reference in the statute to “owner or possessor” in section 1 and the use of the word “owner” in section 5 relates only to the record owner of the land or whether it also covers an independent contractor making an excavation for the record owner.

In some states, liability has been imposed specifically both upon the record owner and the excavator, and in some of such states the liability was imposed under the common-law interpretation, and, in others by statute (1 Am Jur2d, “Adjoining Landowners”, §45). In section 72 of 1 Am Jur2d, it is pointed out that the general rule is that an action may be maintained against anyone who causes injury, “whether he is the owner of the adjoining land or not.” It is stated that this follows because the right of the landowner to have his soil sustained by that adjacent to it is an absolute right and the right to have artificial structures supported is, when it has been acquired, of the same absolute character. In the annotation it is stated (section 72):

“Moreover, on the principle that all who participate in a tort are answerable for damages resulting therefrom, not only a person who makes an excavation, but any person who directs the excavation to be made or under whose authority it is made, may be held liable for the resulting injury to the adjoining land. Accordingly, an independent contractor excavating land under a contract with its owner may be held liable for damage to the adjoining landowner’s buildings or other structures proximately resulting from the contractor’s negligent acts or omission, or the owner and his contractor may be sued jointly for such damage.”

In a case referred to in the American Jurisprudence Annotation, New York Cent. R. Co. v. Marinucci Bros. & Co., 337 Mass 469, 149 NE2d 680, a railroad sought to recover damages to its right-of-way caused by an excavator who dug a trench along the right-of-way to lay a sewer. The action was against the excavator only and the court allowed recovery and stated, at page 682 of 149 NE2d:

“It is well settled that for an excavation causing an injury to the soil of an adjoining owner in its natural state an action will lie, but that no recovery will be allowed in the absence of negligence or a direct trespass for an injury to structures by excavating the adjoining land .... Irrespective of the absolute liability for damage to the soil in its natural condition, an excavator owes a duty to an adjoining landowner to use reasonable care in his operations, and if as a result of his failure to use reasonable care he removes the lateral support of an adjoining owner he will be liable for all damages proximately caused.”

There was no statute involved in the Massachusetts case referred to but the action against the excavator was based upon the common law.

When a statute is enacted which covers an area formerly covered by common law, such statute should be construed as adopting the common law unless there is clear and specific language showing that a change in the common law was intended by the legislature. As stated in Cedar Park Cemetery Ass’n v. Cooper, 408 Ill 79, at 82, 96 NE2d 482:

“A statute will be construed as changing the common law only to the extent the terms thereof warrant, or as necessarily implied from what is expressed. (Thompson v. Weller, 85 Ill 197.) It will not be presumed that an innovation was intended beyond what is specifically or clearly implied.”

Although there was no direct Illinois common-law case involving lateral support of the character being considered in this case, where the court allowed an action directly as against the independent contractor actually performing the job, it is clear from cases in other jurisdictions and from the references to which we have alluded in this opinion, that under the common law, the excavator could be sued directly in a lateral support case along with the record owner of the land. Consequently, it is our conclusion that the statute under consideration in this case should not be construed as making a change in such common-law right to sue the excavator unless a change is specifically or clearly implied from the language of the statute.

Subparagraph 1 of the statute refers to the “owner or possessor of land.” It is clear that sentence of subparagraph 1 is meant to apply to all excavations regardless of depth. Under the circumstances, it is our conclusion that the term “owner or possessor of land” should be construed to mean not only the record title owner but any person in possession of the land for any reason. This would include an excavator or contractor as a “possessor” of the land under the terms of the statute. It is true that possession of the contractor may be merely for the purpose of making the excavation or the construction of a building, but he nevertheless has lawful “possession” of the land and should be construed to be a “possessor” as defined in subparagraph 1. The definition of “possessor” where it is used in a statute is not necessarily restricted to owners, lessees or similar occupants, where the objective of the Act is to control activities of “possessors,” however fleeting such possession may be.

We attach no significance to the fact that paragraph 5 in dealing with excavations of over eight feet refers to “owner” of the land only and not to “owner or possessor.” We note that in subparagraph 6 the words “owner or possessor” are used in providing for liability in excavating below eight feet. It is significant that in this subparagraph 6, the language “owner or possessor” is used when referring to the “duties set forth in subparagraph 5.” It is our conclusion that the failure to mention “possessor” in subparagraph 5 was, therefore, a mere oversight and that subparagraph 5 applies to both “owners and possessors.” It is also our conclusion that the word “possessor” should be given the broad construction consistent with the objectives of the Act.

It is, therefore, our conclusion that since action could be taken against excavating contractors in ordinary lateral support actions, under common law, the Illinois lateral support statute to which we have referred herein should not be construed as limiting liability to owners, lessees or similar persons in occupancy. Action should be permitted as against the excavator as well as the owner of the land to give the statute its intended effect. To conclude otherwise would create undesired results such as the anomalous situation where the owner could be held responsible under the strict liability provision of the statute as a result of the contractor’s acts, and where, nevertheless, such owner could not recover from the contractor because the contractor could establish that his acts involved nonnegligent standard procedures. We believe that the legislative intent was to give broad protection to adjoining landowners and that the use of the language “owners and possessors” was meant to include excavating contractors.

Although the indemnity provision of the contract between Union Corporation and W. S. Bills & Sons, Inc. was pleaded as part of the background for the action, the action was not based on the indemnity agreement in the present case. While the contractor would ultimately bear the financial burden of the loss in any event, it was not plaintiff’s theory to invoke the indemnity provision, since she filed an action directly as against the contractor along with the owner of the premises alleging a direct liability.

Another issue presented for consideration was whether the defendants had been given the necessary license required by statute to go upon the property of plaintiff to make the necessary supports. The statute provides that an adjoining property owner, in order to have a statutory right to sue for damages, must give “the necessary license to enter” on plaintiff’s land in order to install necessary lateral supports. The record shows that the written agreement between the Union Corporation and Charlotte Proud provided that the Union Corporation, in order to protect the old party wall, could construct such additional supports or underpinning as may be considered advisable by its engineers or agents, etc. The written agreement between the plaintiff and the Union Corporation clearly granted the license required by the statute. There is no requirement in the statute that there be a separate written agreement for a license to install the supports, and as a matter of fact the statute does not require a written understanding with respect to the license. On the basis of the record, it is our conclusion that plaintiff fulfilled the statutory requirements with respect to granting a license in the case before us.

We do hot believe that the counteraffidavit filed in the cause before us raised any issue of fact which would make summary judgment unavailable in the instant case. The facts alleged were consistent with what the plaintiff contended the damages were so that there was no issue to be passed upon by the jury under such circumstances. The affidavit specified that the $35,000 figure was based upon an agreement between the bank and the adjoining property owner. This was not inconsistent with the val-nation established by the affidavit of the real estate broker.

The final issue for consideration by the Court is whether the trial judge abused his discretion by proceeding with the hearing on November 29, 1968, as a result of the confusion with respect to notice to the contractor’s attorney. When the contractor’s attorney failed to appear on November 27, the court granted the attorney an additional two days and set the hearing for November 29. The attorney appeared on November 29, 1968. There was no showing that the defendant’s attorney made any written request for a continuance. If he wished to preserve the action of the court as error in this respect, such attorney could have filed a written motion for a continuance and attached affidavits showing why he would be prejudiced in being unable to proceed with the hearing at such time. We note also that there was nothing in defendant’s post-trial motion or supplementary arguments which raised any factual issues. Accordingly, we believe there was no abuse of discretion on part of the trial court in the entry of summary judgment.

The judgment of the Circuit Court of LaSalle County will, therefore, be affirmed.

Affirmed.

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


text:
    Department of Public Works and Buildings of the State of Illinois, etc., Petitioner-Appellee, v. William Klinefelter and A. Cecelia Klinefelter, Defendants-Appellants.
    Gen. No. 69-43.
    Third District.
    January 12, 1970.

      McNeilly & Olivero, of Peru, and William J. Wimbiscus, Jr., of Spring Valley, for appellants.
    William J. Scott, Attorney General of State of Illinois, of Springfield (Bruno P. Bemabei, Special Assistant Attorney General, of Spring Valley, Donald C. Martin, Special Assistant Attorney General, of Princeton, of counsel), and Trimble & Trimble, of Princeton, for appellee.
   ALLOY, J.

This is an appeal from an order of the Circuit Court of Bureau County granting leave to petitioner, Department of Public Works and Buildings of the State of Illinois, to amend its petition for condemnation, to correct the legal description of a certain tract. The order further found that defendants-appellants are not the owners of a certain triangular tract of land containing approximately 2.7 acres (which tract was included in the original petition for condemnation). The trial court denied a motion for a new trial in the cause.

The action for condemnation was filed on August 30, 1967, in furtherance of construction of Interstate 180 in Bureau County, Illinois. The petition named the defendants William Klinefelter and A. Cecelia Klinefelter as the record owners of tract numbered F-4 and F-4 Access. Listed in the petition as “others interested” were Einer C. Swenson, Trustee under the will of Florence Swenson; and Conrad and Sheila Swenson (whom the petition designated as “persons having a possible interest by virtue of boundary line dispute”). On May 16, 1968, plaintiff filed a motion for leave to amend the petition for condemnation and for correction of the legal description of Tracts F-4 and F-4 Access which involved the 2.7 acres. The motion also requested the dismissal-of Einer C. Swenson, Trustee, and Conrad and Sheila Swenson as parties defendant. The Swensons filed an answer to such motion in which they concurred in such motion to amend and to dismiss the Swensons, but set forth in their answer that Klinefelters had no interest in the 2.7-acre tract as such 2.7-acre tract was the property of Einer C. Swenson, Trustee. Defendants-appellants, Klinefelter, moved to strike the answer of Swenson. As a result of the motions the issue was raised as to whether or not the Klinefelters were the owners of the 2.7-acre tract.

On November 26, 1968, an order was entered in the trial court finding that the Klinefelters had no interest in the 2.7-acre tract. The order made no finding as to who actually did own the 2.7-acre tract, but merely found that the Klinefelters did not own such tract. The evidence presented in the cause disclosed that the Klinefelters claimed title to the 2.7-acre tract by reason of a deed from John E. Nordstrom and wife dated February 28, 1949. The deed contained the following description:

“The East Half of the Northwest Quarter of the Southwest Quarter of Section 24, in Township 15 N., R. 9 E. of the 4th P. M.;
“The East Half of the Southwest Quarter of said Section 24; and “Forty-two (42) acres off of the North end of the West Half of the Southeast Quarter of said Section 24, excepting therefrom the following:
“a. All that part thereof lying North of the public highway, containing ten and one-half (10%) acres, more or less, and heretofore deeded to Alba Miller, by deed recorded in Book 125 of Deeds at page 172, in the Recorder’s Office of Bureau County, Illinois; and also
“b. Seven (7) acres off of the South side thereof, as particularly described in deed heretofore executed by Bessie 0. Smith dated May 20, 1922, and recorded in said Recorder’s Office in Book 197 of Deeds at page 395, and also
“c. All that part thereof lying East of the public highway running Northerly and Southerly over, through and across the East side of said West Half of said Southeast Quarter of said Section Twenty-four (24);
“subject to all rights of way thereon, thereover and thereacross;
“all of said real estate conveyed consisting of 123.5 acres, more or less, and being situated in the County of Bureau, in the State of Illinois.”

There is no issue as to the correctness of the exceptions “a” and “b” for the ten and a half and seven acres shown respectively in the deed. Exception “c” is the exception involving the 2.7 acres in question in the instant case. A plat of the area admitted in evidence showed the Klinefelter tract with the road branching off from the old Route 29 going north and south along the easterly side of the Klinefelter tract and continuing in a southwesterly direction along the south side of the Klinefelter tract. It is asserted that if 10% acres were taken from the general description under exception “a” and seven acres under exception “b” and the acreage under exception “c,” this would leave 24.5 acres to go along with the 100-acre additional tract covered by the deed. It is thus contended that this would only leave 121.8 acres which was less than the “123.5 acres more or less” referred to in the deed. It is also noted that if the 2.7-acre tract was added to the Klinefelter tract, the Klinefelters would have 124.5 acres or 1 acre more than described in the deed, where the acreage was described as “123.5 acres more or less.”

It was also shown at the hearing that the Klinefelters had paid the 1966 taxes on property described in the tax roll as follows:

"S rd NE&W1/2 SE Sec. 24-13-9 23.50A”
“El/2 SW & E1/2 NW SW Sec. 24-15-9 100. A”

Such amounts on the tax bill would total 123.5 acres but there is nothing in the tax receipt or bill to show that the 2.7-acre tract was included. Testimony on behalf of Klinefelters was to the effect that taxes had been paid in this manner for more than seven years. Although there were other contentions made as to this issue, it is not necessary that we consider them in view of our determination of the issue.

Testimony in the cause showed that the 2.7 acres in question was not tillable but was hilly and contained a gully. Cecelia Klinefelter testified that she and her husband had occupied the 2.7 acres in question since 1949 when they obtained the deed from the Nordstroms. She testified, “We own south of the road” referring to the south fork of the road. She stated, however, that she had never personally been on the 2.7-acre tract herself and had never seen any weed mowing or timber cutting on the tract. She was vague as to whether there had been any activity in the tract and stated that she felt they were in possession “according to our taxes.”

William Klinefelter, Jr., testified that he lived with his parents in 1949 until 1956 when he married. He described the 2.7-acre tract as “a gully wash.” He stated that he cut firewood on the 2.7-acre tract from 1949 until 1956 and also hunted squirrels and collected walnuts on the tract during this period up until approximately two years before the condemnation. He stated that no one ever asked him to leave the 2.7-acre tract and he never asked for permission to hunt or cut trees on such tract since he believed his folks owned it. He stated that neither he nor his father ever farmed the 2.7 acres as it was not tillable. He did know that Alba Miller and the Swensons farmed the tillable ground south of the 2.7 acres in question. His testimony about fences was rather vague, although he stated that at one time the entire 2.7-acre tract was enclosed within a fence.

Alba Miller testified for the plaintiff. He stated he had lived in the area all of his life and had farmed the tillable ground south of the fork and testified it had been farmed for about 47 years. Mr. Miller never owned this land but farmed it as a tenant until Conrad Swenson began to farm it in 1961. He testified that he repaired the fence along the south side of the south fork of the road and made repairs on this fence as late as around 1949 and 1951. He stated he remembers no other fences around this 2.7 acre tract. He had cattle on the 2.7-acre tract until he stopped farming in 1951 and he knew of his own knowledge that Swenson had cattle on the tract after 1951 as he remembers seeing them on the tract. He stated he had been on the tract since 1951 as he helped Swenson pick corn and make hay in the area south of the south fork. He stated that he never saw any of the Klinefelters on the 2.7-acre tract and never saw any evidence that anyone cut firewood on the tract. He also has hunted squirrels on the tract.

Einer Swenson testified that he was involved in an estate which he stated owned the 2.7-acre tract, and was familiar with the tract since 1924. He stated that from 1924 to 1940 he was on the 2.7-acre tract two or three times a year, but after 1940, he was on it two or three times a month as his son farmed the tillable land just south of the 2.7-acre tract. In 1954 he also moved into a home which was close to the 2.7-acre tract. He testified that he hunted on the 2.7-acre tract regularly and never saw any of the Klinefelters or anyone else other than members of his family or guests upon the 2.7-acre tract. He never saw evidence of any timber or firewood being cut on the 2.7-acre tract, such as stumps or branches, although he did testify that a Mr. White cut some timber on the tract in 1958 after he 'had given Mr. White permission to do so. Swenson also testified that the only fence he knew on the property was the fence on the south side of the south fork of the road and he helped to maintain this until they quit putting cattle in the area when the fence was not kept in repair. He stated that this fence was about 200 feet from the south fork of the road to the tillable land on the south. The description of the fence would show that it was designed to enclose the 2.7-acre tract with the land to the south.

The trial judge allowed the motion by plaintiff to amend the petition for condemnation which motion requested that the 2.7 acres be excluded from the proceeding. In effect, the court found that the Klinefelters had no interest in the 2.7-acre tract. The court made no finding as to the actual ownership of the 2.7-acre tract but merely found that the Klinefelters did not own it for the purposes of the case. As indicated, the Klinefelters moved for a new trial and such motion was denied.

The issues, therefore, were (1) whether the Klinefelters established title to the 2.7-acre tract by their deed from John E. Nordstrom and wife referred to, and (2) whether the Klinefelters had established any title to the 2.7-acre tract by virtue of any section of the Limitations Act; that is, whether the Klinefelters could establish title by adverse possession or could claim adverse possession under section 7 of the Limitations Act (1967 Ill Rev Stats, c 83, § 7).

It is clear that exception “c” excepted from the 42 acres “all that part thereof lying East of the public highway running northerly and southerly over, through and across the east side of the west half of the southeast quarter of Section Twenty-four (24); ” and, also, that the deed specified that it conveyed 123.5 acres “more or less.” From the plat in evidence it is clear that the road referred to was Township Road No. 287 which actually runs more east and west than north and south and it forms the north boundary of the 2.7 acres in question. This road, however, does run northerly where it joins Township Road No. 347, and after it goes to the west end of the 2.7-acre tract it does go southerly. We, therefore, feel that the trial court correctly concluded that the deed was referring to Township Road No. 287 when it spoke of “the public highway running northerly and southerly” over the east side of the tract being conveyed. Apparently, defendants do not seriously contend that this is not the road referred to in the deed, but base their argument chiefly on a reference in the deed to “123.5 acres, more or less.” They point out that to except the 2.7 acres would leave them with only 121.8 acres. If, however, the 2.7 acres was included in their description they would have 124.5 acres which would be one more acre than the 123.5 acres referred to in the deed. Excluding the 2.7 acres would not be inconsistent with the “more or less” reference to acreage in the deed.

We agree that the primary purpose in construing a deed is to discover the intent of the parties as determined from the wording of the deed and extraneous facts and circumstances if necessary (Patton v. Vining, 14 Ill2d 11, 150 NE2d 606). It is also true that where there is an ambiguity or question in construing the deed, the construction should be made in the manner most favorable to the grantee as against the grantor (Patton v. Vining, supra; Allendorf v. Daily, 6 Ill2d 577, 129 NE2d 673). We must, however, give consideration to other rules of construction such as pointed out in Schreier v. Chicago & N. W. Ry. Co., 96 Ill App2d 425, at 430, 239 NE2d 281, where the court states every word and phrase is to be given a meaning if possible. It has been determined, consistently, that where a tract of land is sold by a specific description by which its exact boundaries may be determined, the boundaries thus ascertained will control the description as to the quantity or number of acres. In the case of Branstetter v. Dahncke, 394 Ill 40, 67 NE2d 212, a deed conveyed one acre off the south side of Lot One, Block 35, being a tract of land having 107-feet frontage on South Second Street and running east and west 360 feet more or less. The area of 107 feet by 360 feet did not contain a full acre so the grantee contended that his line from Second Street back of his lot should angle north and go more than 360 feet to give him his full acre. The court, after speaking of the intent of the parties, stated specifically (at Page 44):

“. . . that where there is a conflict between a quantity description and a metes-and-bounds description, the latter will prevail.”

The court quoted from Seeders v. Shaw, 200 Ill 93, 65 NE 643, stating (at pages 45-46 of the Branstetter opinion):

“The law is well settled that where a deed contains two descriptions, each of which is in itself complete, one describing the land conveyed by quantity and the other by metes and bounds, in case of conflict the description by metes and bounds will control and that by quantity will be rejected. Mr. Martindale, in his work on Conveyancing, (2d ed p 98) says: ‘The quantity of land mentioned in a deed as being the number of acres conveyed must yield to the boundaries contained in the description, and if inconsistent with the actual area of the premises as thus ascertained it will be rejected.’ In Cottingham v. Parr, 93 Ill 233, on page 236, the court says: ‘It is also a rule that where land is described in a deed by monuments and quantity, and upon a survey they are not harmonious, the quantity must yield to the monuments. In fact, of all the indicia by which the boundaries of land are to be ascertained, that of quantity is held perhaps the least reliable. Quantity yields to course and distance, course and distance to monuments.’ ”

The rule referred to is applicable in the instant case and reference to 123.5 acres must yield to the specific exception of “all that part thereof lying east of the public highway.” The reference excepting all land lying east of the public highway is as specific as a metes and bounds description, in the light of the evidence in this cause, and should prevail over a quantity description. We also note that the quantity description refers to 123.5 acres “more or less.” We realize that if the 2.7 acres was not excepted it would give the defendants one acre more or 124.5 acres and, if excepted, it results in a reduced acreage to 121.8 acres. We, therefore, conclude that there is no basis for stating that the exception “c” should be held ineffective, or that the Klinefelters were conveyed the 2.7 acres by the terms of the deed referred to. The exception cannot be ignored and the trial court was justified in determining that the deed did not convey the 2.7-acre tract.

The case of Higinbotham v. Blair, 308 Ill 568, 139 NE 909, where a deed conveyed the southeast quarter of section 12 “except 39.20 acres” is not a precedent inconsistent with the conclusion of the trial court in this case. There was nothing in the deed involved to show where the 39.20 acres was excepted from, and the court held in that case that this constituted a latent ambiguity and that the exception was, therefore, invalid. In the case of Attebery v. Blair, 244 Ill 363, 91 NE 475, where a deed conveyed property and excepted two acres which were not located in the description, was also consistent in holding that the exception was void. The two cases referred to have no application to the situation in the instant case where the area covered by the exception in the deed is clearly defined.

The Klinefelters claimed to have obtained the land in 1949 and the condemnation proceeding was instituted in 1967. It is, therefore, apparent that they did not claim to hold the land for 20 years and claim title by adverse possession. There is also no evidence of such continuous and adverse possession of record. The defendants claim, however, that they have title by virtue of section 7 of the Limitations Act which provides as follows:

“Whenever a person having color of title, made in good faith, to vacant and unoccupied land, shall pay all taxes legally assessed thereon for seven successive years, he or she shall be deemed and judged to be the legal owner of such vacant and unoccupied land, to the extent and according to the purpose of his or her paper title.”

Assuming that defendants paid taxes for a period of seven years as indicated in the record, they nevertheless failed to show color of title which is required under the Act. Color of title was defined in Bergesen v. Clauss, 15 Ill2d 337, 155 NE2d 20, at pages 341-342:

“Color of title is not a claim of ownership that is defective for some technical reason, nor is it meant to be something just short of absolute title. Rather, color of title is an instrument or a record that in fact does not convey title but appears to have the effect of a conveyance. Color of title, then, need not be an imperfect title of a sort that could, without aider, ripen into absolute title. Color of title need only show some evidence of claimed ownership by the grantee. It need be only some semblance of title, however invalid may be that claim.”

In the cause before us it is apparent that no color of title was shown since the deed from the Nordstroms clearly excepted the 2.7-acre tract. The record also discloses that defendants did not take possession of the 2.7-acre tract. The only direct testimony as to taking possession of the 2.7-acre tract was that of William Klinefelter, Jr., who testified that he cut wood on the land, hunted on it and collected walnuts. The testimony of Mr. Miller and Mr. Swenson established that they were familiar with the tract for 40 years, they had done the same acts as William Klinefelter, Jr., and they had never seen any of the Klinefelters on the land and never saw any evidence of the cutting of timber. They had also spent a great deal of time on the tract for various purposes. There was thus a conflict of evidence on the question of possession and the decision of the trial judge in the cause before us was well within the range of the evidence presented. A court of review would not be authorized to reverse such decision on the basis of the record in this cause.

Since the trial court correctly found that the defendants Klinefelter failed to prove they had title to the premises in question, the Klinefelters could not require that condemnation proceedings be instituted against them or maintained against them. The orders of the trial court in this cause were, therefore, proper and should be affirmed.

Affirmed.

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


author: CRAVEN, P. J.,

text:
    Michael Allen Day, a Minor, James Robert Day, a Minor, and William Gerald Day, Individually and as Father and Next Friend, Plaintiffs-Appellants, v. Dr. Fred C. McDavid, G. Elwood Wheeler, O. Wendell Walden, Vernon D. Ogren, Wendell W. Augspurger, William R. Barnard, Eleanor D. Branom, James Mack, Eugene R. Salch, Dr. John Vander Waal, Each Individually and as the Board of Education of Bloomington Public Schools, District No. 87, McLean County, Illinois, a Municipal Corporation, Defendants-Appellees.
    Gen. No. 11,209.
    Fourth District.
    January 15, 1970.

      Thomson, Thomson & Mirza, of Bloomington (Jerome Mirza, of counsel), for appellants.
    Pratt, Larkin & Williams, of Bloomington (John T. Pratt and H. Paxton Bowers, Jr., of counsel), for appellees.
   CRAVEN, P. J.,

delivered the opinion of the court.

It is not one of the emoluments of judicial office that the temporary occupants thereof can pick and choose the type, quality or quantity of cases in litigation. The subject matter of much present-day litigation seeking to vindicate personal rights, promote class action, and to correct asserted environmental evil seems to be limited only by the boundless ingenuity of able lawyers to professionally assert the rights of their clients.

Anyone who holds the erroneous impression that the law is static need only examine any trial or reviewing court docket to be dissuaded of that view.

The heavy flow of social issues into the court machinery for resolution may have bypassed expertise at resolution but, as we noted, the courts are not, nor should they be, free to pick and choose the issues submitted for decision.

This case involves the denial of a temporary injunction against the defendants, members and administrators of School District No. 87 in McLean County, Illinois, who, we are told in a verified but unanswered complaint, expelled James Robert Day and William Gerald Day from Bloomington High School for failure to comply with the dress code of the school. The “dress code” as adopted and/or enforced by the defendants is alleged to provide that “Hair styles must not be extreme for boys or girls.”

The complaint in this case alleged the “dress code” to be invalid by reason of the lack of authority of the School Board to promulgate such a code, and even if such authority exists its exercise by this code is asserted to be so vague, indefinite and confusing as to be the promulgation of an unascertainable rule. Further, such a rule is alleged to be in violation of the right of the plaintiffs to a free public education under Art VIII of the Constitution of the State of Illinois. If the right to a free public education is made to be conditioned upon compliance with such a “dress code,” then it is asserted that there is a violation of the First and Fourteenth Amendments to the United States Constitution.

Initially, it would appear that this case would be an appropriate vehicle in which to expound on the validity of “dress codes” and the propriety of regulation as to hair style — and we would thus be afforded the opportunity to judicially determine what hair style is currently sufficiently acceptable to permit attendance at school and what hair style is currently so socially unacceptable as to require expulsion, or at least permit of expulsion, by administrative action.

To the extent that the alleged “dress code” infringes upon the freedom of expression, this case would appear to afford an opportunity to expound upon the nature and scope of permissible expression. Thus, we might make judicial pronouncements on a whole range of issues.

The assertion of personal rights in the area here involved is, of course, always important to the litigants. The importance and the severity of the case is measured subjectively as to the litigants. De minimis non curat lex, often a useful legal maxim, has no application where, as here, personal but nonetheless substantial constitutional rights are asserted. Clearly, it is of substantial importance to the minor plaintiffs in that they suffer a denial of access to the public-school system. This, patently, is a severe consequence. Likewise, as to the defendants, the maintenance of discipline and an environment that makes education for all a likely possibility is equally important. Surely the rights of the respective parties need not be mutually exclusive.

Upon filing of the verified complaint the plaintiffs sought, and the trial court denied, a temporary injunction. Such a temporary order would have reinstated the plaintiffs in school prior to an answer by the defendants or prior to a hearing. A trial court is clothed with wide discretion with reference to the issuance of a temporary injunction when the effect of such temporary injunction would mandate action by pub-lie officials contrary to the action which they have taken. Upon denial of such an order by the trial court we can reverse only upon a finding of abuse of discretion. We find no such abuse of discretion upon this record which consists solely of the verified but unanswered complaint. Thus, in accordance with the order issued by this court immediately following oral argument, the action of the trial court in denying the temporary injunction is affirmed and this cause is remanded to that court for further proceedings.

Many of the cases referred to by counsel, both as to the merits of the controversy and as to procedure, are cited and discussed in Breen v. Kahl, 38 USL Week 2332 (Dec. 3, 1969). In Breen the Circuit Court of Appeals for the Seventh Circuit concluded that the right to wear one’s hair at any length or in any desired style is an ingredient of personal freedom protected by the United States Constitution. “To limit or curtail this or any other fundamental right, the state has a ‘substantial burden of justification.’ (Citing cases.) . . . .” One judge of the Seventh Circuit Court of Appeals dissented.

The decision in Breen followed a trial in the United States District Court. Here there has been no trial, no evidence taken, and the pleadings are in fact inadequate to place the issue clearly in focus. Thus any expression by this court in the absence of such matters being of record would be improper. The order of the Circuit Court of McLean County denying the temporary injunction is affirmed and this cause is remanded to that court for further proceedings.

Order affirmed and cause remanded with directions.

SMITH, J., concurs.

TRAPP, J., concurs in result.


author: STOUDER, J.

text:
    Harold Vogelsang, Plaintiff-Appellant, v. Credit Life Insurance Company, a Foreign Corporation, Defendant-Appellee.
    Gen. No. 69-65.
    Third District.
    January 16, 1970.

      Moehle, Moehle, Reardon & Sincock, of East Peoria, for appellant.
    Kavanaugh, Scully, Sudow, White & Frederick, of Peoria, for appellee.
   STOUDER, J.

Plaintiff-Appellant, Harold Vogelsang, commenced this action in the Circuit Court of Tazewell County seeking to recover on an insurance policy issued by DefendantAppellee, Credit Life Insurance Company. The court granted defendant’s motion for judgment on the pleadings from which judgment plaintiff has appealed.

Since judgment was entered on the pleadings, the underlying facts as stated therein are undisputed. According to the complaint, defendant insurer did on August 31, 1966, execute and deliver a certificate of insurance commonly known as credit life insurance, in favor of plaintiff as insured. The insurance was for a period of twenty-four months and was issued at the time plaintiff secured a loan from a Peoria bank for a similar period of time. In general, the certificate provided for the payment of benefits upon the death or disability of the insured based on the amount due on the underlying loan at the time of the occurrence of the event insured against. As stated in the complaint, plaintiff became disabled on December 2, 1966, formal notice of such disability being given to the defendant on April 1, 1968. The complaint which commenced this action was filed October 18, 1968, and included as an attached exhibit the insurance certificate. Defendant filed an answer which included three affirmative defenses. The first alleged the disability, if any, was the result of a prior or preexisting condition. The second alleged that the underlying obligation was paid before claim was made and the third alleged that notice of claim not having been made until seventeen months from date of loss, such notice was not in accordance with the terms of the certificate which required that “written notice of claim must be given to the company within 30 days after the occurrence or commencement of any loss covered by this certificate, or as soon thereafter as is reasonably possible.” Plaintiff answered such affirmative defenses by denying the facts stated in the first affirmative defense. With respect to the second affirmative defense, plaintiff stated that the debt had been paid before claim made but that this did not preclude defendant’s liability. (Plaintiff later argues that the admission meant only that the debt had been paid before legal action had been instituted.) In responding to the third affirmative defense, plaintiff denied that he had failed to give notice of claim within a reasonable time.

On January 20, 1969, defendant by written motion, moved for judgment on the pleadings, alleging that since plaintiff admitted that no claim was made on the certificate until after the underlying debt was paid, the defendant was not liable under the certificate as a matter of law. Pursuant to proper notice, hearing on said motion was had on February 7,1969. Defendant’s motion was granted by default and the complaint was dismissed, no one appearing for plaintiff. On February 17, 1969, plaintiff filed his motion requesting that the complaint be reinstated and that defendant’s motion for judgment on the pleadings be reconsidered. The motion was supported by affidavit setting forth facts excusing plaintiff’s failure to appear on the February 7 hearing date, which facts are not material to this appeal. Pursuant to notice, plaintiff’s motion was heard on February 26, 1969. The court took the motion under advisement and thereafter on March 3, 1969, reinstated the complaint but on March 6,1969, the court again granted defendant’s motion for judgment on the pleadings and dismissed the complaint. Both written orders of March 3 and March 6, 1969, relate to the hearing held on February 26, 1969, and in neither of said orders is any reason indicated for the court’s action.

By amendment dated February 21, 1969, defendant attempted to amend its motion for judgment on the pleading by adding an additional paragraph in which it alleged that it was also entitled to judgment on the pleadings as set forth in its third affirmative defense, it being undisputed that notice of claim was not given until April 1, 1968. Although the amendment is dated February 21, 1969, and recites that notice thereof was given to plaintiff on that date, the motion was not filed until March 3,1969.

Within thirty days after the order dismissing the complaint was entered plaintiff filed his motion to vacate such order requesting leave to file an amended complaint, the principal amendment being an allegation that at the time notice was given to defendant on April 1, 1968, the underlying obligation had not been paid. After notice and hearing, the court declined to vacate its previous order or to grant leave to file an amended complaint.

Plaintiff has devoted a substantial portion of his brief to the argument that the trial court erred in holding that the payment of the underlying debt barred plaintiff’s cause of action. In this court defendant does not oppose plaintiff’s argument in this respect and concedes that the trial court’s action cannot be supported by the reasons set forth in defendant’s original motion for judgment on the pleadings in view of plaintiff’s proposed amendment. It does not appear either from the record or from defendant’s brief that it made any such concession in the trial court. However, in view of Mosby v. Mutual Life Ins. Co. of New York, 405 Ill 599, 92 NE2d 102, and Patterson v. John Hancock Mut. Life Ins. Co., 27 Ill App2d 135, 169 NE2d 183, it is the onset or commencement of the disability during the period that the policy is in effect which is the condition precedent upon which liability of the company depends. Further as set forth in Mosby, supra, the filing of notice of claim is only a condition precedent to the enforcement of the insurer’s liability and the liability of the insurer is merely postponed until such notice of claim is made, If this were the only issue in this case, summary reversal would be in order.

Defendant insists that the action of the trial court is warranted because plaintiff admittedly did not give notice of claim to defendant until seventeen months after commencement of the disability and thereby failed as a matter of law to give notice within a reasonable time as required by the insurance certificate. Plaintiff argues the trial court’s action cannot be justified for such reason because, first, the timeliness of the notice of claim was not an issue nor ever presented to the trial court and, second, the allegations of the complaint are sufficient to require that such issue be determined as a question of fact and not as a question of law.

As noted above, the record fails to reveal that the trial court ever considered defendant’s amendment to its motion for judgment on the pleadings. It was this amendment which attempted to raise the lack of diligence of plaintiff in giving notice of claim.

Defendant, in apparent recognition that its argument is not supported by the record, has filed a motion in this court for leave to supplement the record by including an affidavit of its attorney. The substance of the affidavit is that the trial court pursuant to the argument of attorney for defendant, declined to vacate the order dismissing the complaint and granting leave to file an amended complaint on account of plaintiff’s failure to give prompt notice of claim. We are unaware of any authority for including such an affidavit as a part of the record and defendant has called none to our attention. Accordingly, the motion to include such affidavit in the record, which motion was taken with the case, is denied.

We observe from the record that leave was never sought by nor granted to defendant to file the amendment to its motion for judgment on the pleadings. Neither does the record indicate the amended motion was ever set for hearing or, in fact, heard by the trial court. Such formal procedures may be waived, and ordinarily will be deemed to have been waived if it appears that the court has considered the merits of the motion. The record in this respect is ambiguous and for that reason we believe that consideration of the issue on its merits is warranted.

Was the trial court’s action in granting the motion for judgment on the pleadings justified because the timeliness of the notice of claim could and should have been determined as a matter of law?

Initially some observations are required concerning the procedure involved. Judgment on the pleadings is properly granted where the pleadings reveal there is no genuine factual dispute or issue and hence only questions of law are raised by the pleadings. Arlington Heights Nat. Bank v. Village of Arlington Heights, 33 Ill2d 557, 213 NE2d 264 and Tompkins v. Franz, 21 Ill App2d 227, 157 NE2d 799. Allegations in a pleading need only state ultimate facts and it therefore follows that whether or not the pleader can prove such allegations by competent evidence is not an issue. In this respect a judgment on the pleadings differs from the summary judgment procedure. Judgment on the pleadings is based principally on the admissions or omissions in the pleadings.

As heretofore stated, the requirement of proof of loss in an insurance policy is a condition precedent to the enforcement of liability under such policy. See Mosby v. Mutual Life Ins. Co., supra. It is the duty of the insured to allege and prove the performance of all conditions precedent.

Defendant called to our attention a number of cases announcing and illustrating the rule that the reasonableness or promptness in giving notice of claim is appropriately decided as a question of law. See Knickerbocker Ins. Co. v. Gould, 80 Ill 388, Depot Cafe, Inc. v. Century Indemnity Co., 321 Mass 220, 72 NE2d 533, and International Harvester Co. v. Continental Cas. Co., 33 Ill App2d 467, 179 NE2d 833. Such cases do indeed hold that where the facts or inferences which may be drawn therefrom are not in dispute, the issue is one of law. Without discussing such cases in detail it is sufficient to say that none of these cases was decided on motions for judgment on the pleadings and none of the cases involved disability insurance.

In the instant case defendant contends that the pleadings show without contradiction that plaintiff did not give notice of claim to defendant until April 1, 1968, or nearly seventeen months after commencement of his disability. Because on April 1, 1968, plaintiff claimed his disability commenced on December 2, 1966, defendant assumes that at any time after December 2, 1966, plaintiff could and should have been expected to give notice of claim. This argument ignores two salient facts as set forth in the complaint. First, the hazard insured against provided for payment if “continuously and totally disabled,” and second, according to the complaint, the plaintiff sustained a heart attack on December 2, 1966. From such facts it may be concluded that plaintiff, even though sustaining a heart attack on December 2, 1966, did not know that he would thereafter be disabled within the meaning of the policy. In this respect a disability hazard differs from the usual casualty insurance. Whether an occurrence will result in a disability, let alone a total permanent and continuous disability, depends not upon what happens on a particular date but rather upon the nature and extent of any condition of ill health which may develop over a course of time. Under such circumstances the determination of whether an insured has exercised due diligence in notifying the insurer depends upon factors other than the mere lapse of time. We hold that the lapse of time in and of itself did not constitute a sufficient basis for determining plaintiff’s diligence or lack thereof as a matter of law.

For the foregoing reasons the judgment of the Circuit Court of Tazewell County is reversed and remanded with directions that the complaint be reinstated.

Reversed and remanded with directions.

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


author: MR. JUSTICE SEIDENFELD

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Robert E. Long, Defendant-Appellant.
    Gen. No. 69-80.
    Second District.
    January 19, 1970.

      John T. Beynon, Public Defender, of Rockford, for appellant.
    Philip G. Reinhard, State’s Attorney of Winnebago County, of Rockford, and John C. Tower, Assistant State’s Attorney, for appellee.
   MR. JUSTICE SEIDENFELD

delivered the opinion of the court.

The defendant, Robert E. Long, was found guilty of murder after a bench trial, and sentenced to a term of 30 to 40 years. His appeal is based solely on the claim that his extrajudicial statements were admitted in violation of his constitutional rights.

Joyce Armstrong testified that she had been a coworker with the defendant in a restaurant in Beloit, Wisconsin. On November 4th, 1968, at the end of their shift at the restaurant, she asked the defendant for a ride home; he went into the bathroom and after an interval he called out to her and she ran into the room. Defendant was sitting on a trash can, crying. There was blood on his face and hands and on the wash bowl. When the witness asked what was wrong, defendant replied, “I am killing myself.” When she asked “Why?”, he said, “I strangled my girl friend in Chicago.” He mentioned the name, “Betty,” whom the witness had met previously.

The Beloit police were called to the restaurant and defendant was taken, unwillingly and under restraint, to the hospital in an ambulance.

At the hospital emergency room it was determined that both the defendant’s wrists were slashed, superficially, and he had two piinor stab wounds in the chest and a serious wound in the abdominal region. The latter caused profuse bleeding and necessitated a transfusion and later surgery.

James Mattison, Jr., Captain of the Beloit police, testified that he identified himself to defendant in the emergency room immediately after the defendant’s arrival there, and while defendant was being restrained on the table and with the nurses treating him for the wounds. He told defendant that he had a right to remain silent, that what he said could be used against him in court, that he had a right to have an attorney present at the questioning or consult with one before being questioned, and that if he couldn’t afford one the State would provide one. He further testified,

“I asked him if he understood these rights and he said he did. And I asked him if he still wanted to talk to me about this incident, and he said yes. . . . I asked him if it was true that he had killed someone, and he said yes, he had. I asked him, and he said his girl friend, Betty Vollenweider. ... I then asked him for details as to what he did with the body, and he stated that at that time he didn’t wish to discuss it any further, he just wanted to die with her. I didn’t question him any further after that.”

Daniel Hartnett, a Chicago policeman, testified that he found Betty Vollenweider’s body in Chicago on the morning of November 4th, and that there were visible marks, indicating strangulation, on her neck. After identification, he went to Beloit on November 5th and identified the victim’s car in the police garage (where it had been removed from the restaurant parking lot). In the trunk of the car he found approximately 15 feet of plastic clothesline, among other items. He then went to the Beloit Hospital, and after speaking to the head nurse and securing the permission of defendant’s attending physician, Dr. Carter, he spoke to defendant in the intensive care section. He testified to giving defendant warnings, substantially in the same terms as officer Mattison had testified, and to defendant’s reply that he understood and was willing to give a statement. This was at about 4:10 or 4:15 in the afternoon and in the presence of the witness, detective Miller of his department, and a patrolman from the Beloit police department, defendant then gave a complete confession.

The autopsy confirmed that asphyxia due to strangulation, due to ligature caused the death.

Detective Miller testified to substantially the same facts. Each officer said that he did not know that defendant had refused to talk further with officer Mattison. Each officer testified that defendant first said he would give a written statement and when it was typed and shown to him defendant refused to sign.

Millard Wertman, Jr., a Winnebago County Deputy Sheriff, testified that he, with Detective Wright of his department, went to the intensive care section of the Beloit Hospital on November 7th, after contacting Dr. Carter, and advised defendant of his rights, reading them from a printed card. The witness said that defendant answered that he understood and he then proceeded to give the same detailed confession he had previously related to the Chicago officers. Defendant refused to sign a mimeograph form offered to him after the statement which was an acknowledgment that his remarks were voluntary and which waived his constitutional objections. He had previously indicated that he would give an oral statement and not a written or a signed one. Wright’s testimony was fully corroborative of Wertman.

Defendant Long took the stand to testify merely with reference to his alleged statements. He denied he had ever seen any of the officers claimed to have questioned him and could not recollect ever talking to any of them. He stated that his first recollection in the hospital was after six or seven days of his nine-day stay.

It is clear from the record that the State, while it could show by the testimony of Joyce Armstrong that the defendant volunteéred that he had strangled Betty Vollenweider, and could prove the corresponding cause of death, offered no proof of the essential element of venue outside of the defendant’s own statement. (This is true whether you consider defendant’s voluntary statement to mean that he strangled the victim in Chicago or that he strangled his Chicago girl.)

Defendant argues that “the crux of the case revolves around the fact that there were three separate law enforcement agencies questioning the defendant.” He contends that when defendant refused to answer further questions put to him by Captain Mattison, a “heavy burden” was placed upon later interrogators to show an intelligent and knowing waiver in subsequent statements, and that this burden was not sustained within the purview particularly of the case of Miranda v. Arizona, 384 US 436, 16 L Ed2d 694, 733 (1966), and the companion case of Westover v. United States, 384 US 436, 16 L Ed 2d 694, 735 (1966). The subordinate point is made that the influence of defendant’s physical condition and the drugs administered at the hospital prevented his intelligent understanding and knowing waiver. And a final question is posited, whether a defendant must affirmatively state a waiver of his rights rather than waive them impliedly by talking after acknowledging his understanding of those rights.

With reference to the main stream of defendant’s argument, we are to consider the import of Miranda, supra, at page 723 (L Ed2d),

Once warnings have been given, the subsequent procedure is clear. If the individual indicates in . any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease.

While defendant agrees that Mattison complied with Miranda, he contends that the subsequent interrogation by, first the Chicago, and finally the Winnebago authorities, did not. Defendant cites Westover, supra, to support this contention. In Westover, the defendant had been interrogated at length by Kansas City authorities over a fourteen hour period of custody, with reference to an alleged Kansas City crime, with no admonition of his rights. The F.B.I. then began their questioning relative to a different offense alleged to have occurred in California. The F.B.I. interrogation was continued in the Kansas City Police Station. While the F.B.I. agents advised defendant of his rights there was no evidence of the defendant’s response, except that he began to give the statement. The court held that the confessions to both the Kansas City and the California offenses, secured after a short period by the agents, were received in the course of a continuous period of questioning; and that the failure to give the warnings at the beginning of the Kansas City interrogation without an “articulated waiver,” after the F.B.I began its inquiry, made the statements as to the California offense inadmissible. The court considered the F.B.I warnings to have been made “at the end” of the interrogating process.

Westover, supra, at page 736 (L Ed2d) does not preclude questioning by successive and different law enforcement agencies under circumstances which show that the later interrogators are not the “beneficiaries of the pressure applied by the local in-custody interrogation,” and where proper warnings have been given. We believe that this is such a case. A number of state court cases decided since Westover take a similar view. See State v. Godfrey, 182 Neb 451, 155 NW2d 438, 442 (1968); State v. Bishop, 272 NC 283, 158 SE2d 511, 520 (1968); People v. Fioritto, 64 Cal Rptr 797, 800 (1968).

The record confirms that the State has satisfied its burden of showing a knowing and intelligent waiver of defendant’s constitutional privileges against self-incrimination and the right to counsel before his statements became admissible. The evidence of the giving of the Miranda warnings does not suggest a perfunctory or mechanical approach, but rather a careful one. Captain Mattison terminated his questioning as soon as defendant indicated he wanted to be “left alone and to die.” That statement by defendant did not preclude further voluntary statements by him at some other time. Officer Hartnett testified that he told defendant he could stop the conversation at any time he saw fit after he had given the usual warnings. In fact, the record strongly suggests that from his first volunteered statement at the restaurant, defendant was remorseful and quite willing to unburden himself of his guilt and sorrow, and that there was no use of psychological “ploys,” or any overbearing on the part of the authorities in the relatively short period of the actual questioning.

Defendant takes the position that it is not sufficient that one merely state that he understands the rights which have been explained to him in full, but that he must affirmatively renounce these rights. However, circumstances of a defendant freely answering questions, after explanation of his rights, is sufficient to rebut the normal presumption against waiver of constitutional rights. The People v. Hill, 39 Ill2d 125, 133, 233 NE2d 367 (1968).

We have also given careful consideration to the argument of defendant that his physical condition and the ingestion of drugs resulted in his inability to intelligently and knowingly waive his Miranda rights.

At the time of Captain Mattison’s questioning, while defendant was suffering from a severe physical injury, there is no evidence that his comprehension was impaired. He was firm in his violent struggle to be left alone to die. His mental condition rather than his physical condition is most material on this record. See State v. Wise, 19 NJ 59, 115 A2d 62, 80-81 (1955).

Thereafter, Long was given an analgesic and sedative, Demerol, to relieve pain and as a relaxant. The dosage was 75 milligrams, which Dr. Carter testified would be dissipated in approximately 3 to 4 hours, and would have no effects on the brain. Dr. Carter further testified that the dose given Long, in his opinion, would not weaken his ability to understand; that the generic name of Demerol is meperidine hydrochloride; that the 75 milligram dose is not a large one for an average-size man. He further testified that if the drug were administered within an hour of questioning, it might have an effect on the party’s inhibitions, but would not affect his ability to understand questions.

Before defendant was questioned by the Chicago authorities on November 5th, and on Dr. Carter’s orders, the medication was withheld for 3 hours prior to the questioning.

Defendant was next questioned by the Winnebago County authorities, apparently after venue in that county became known from defendant’s statement to the Chicago officers. Long was given the 75 milligrams of Demerol at 9:40, but no further medication was given until after the interrogation took place. The questioning began at approximately 12:15 p. m.

The fact that the statements corroborated each other also lends support to the conclusion that the drug, Demerol, at no time affected Long’s ability to comprehend. Defendant did not testify at the hearing on the motion to suppress the statements. He did, however, testify at the trial that he was unaware of any interrogation or interrogators. This testimony is inherently unbelievable in view of the medical testimony, (including that of a nurse who testified that on the 5th thru the 7th of November his general attitude towards conversation was good, he was very conversive, and seemed cooperative) and defendant’s successive, consistent and detailed statements.

We conclude that the trial court correctly permitted the introduction of defendant’s statements as voluntary after a knowing and intelligent waiver of defendant’s constitutional rights.

We, therefore, affirm the judgment below.

Affirmed.

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

       He said that he had quarreled with his girl friend Betty Vollenweider in his apartment in South Beloit in the early morning of November 3rd; that he strangled her with a piece of “plastic string” from her car; and after remorsefully holding the body until the early morning of November 4th, he took it to Chicago and dropped it off near the victim’s home, then returned to South Beloit.

       At the hearing on the motion to suppress Officer Hartnett testified that he and Detective Miller returned to the hospital at about 5:00 o’clock and further questioned defendant. This statement, however, was not introduced at the trial.

       Defendant does not claim that his rights under Miranda were not fully set forth on the card, but argues that reading from a card is bound to be perfunctory and does not amount to a guarantee of an explanation which a defendant can fully understand. But see State v. Pullen (Ore), 449 Pac2d 850 (1969); State v. Thornton, 22 Utah2d 140, 449 Pac2d 987, 988 (1969).

       75 milligrams of Demerol were given to Long at 11:40 a. m. on November 5th. The questioning began shortly before 4:00 p. m. After the officers left, defendant was given another 75 milligram dosage at 4:30, and the officers returned shortly after 5:00 o’clock when a second statement was taken. However, the second statement was not introduced although it was substantially the same as the first statement and was corroborative of it. Officer Hartnett testified that defendant acted and talked no differently the second time he saw him on November 5th than at the first time.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Robert E. Cooksey, Defendant-Appellant.
    Gen. No. 69-94. (Abstract of Decision.)
    Second District.
    January 19, 1970.
    Lewis V. Morgan, Jr., of Wheaton, for appellant; William V. Hopf, State’s Attorney of DuPage County, of Wheaton, and A. E. Botti, Assistant State’s Attorney, for appellee.
   Opinion by JUSTICE SEIDENFELD. Not to be published in full.