author: MR. JUSTICE ENGLISH

text:
    In the Estate of Fred W. Schneider, an Incompetent. Department of Mental Health, State of Illinois, Petitioner-Appellee, v. Ruth A. Taylor, as Conservator of the Estate of Fred W. Schneider, an Incompetent, Respondent-Appellant.
    Gen. No. 54,132.
    First District, Fourth Division.
    October 30, 1970.
    Alphonse Cerza and Anthony J. De Tolve, of Chicago, for appellant.
    William J. Scott, Attorney General of State of Illinois, of Chicago (Francis T. Crowe, Assistant Attorney General, Frank J. McGarr, First Assistant Attorney-General, and Jerome F. Goldberg and Joan M. Matlaw, Special Assistant Attorneys General, of counsel), for appellee.
   MR. JUSTICE ENGLISH

delivered the opinion of the court.

This appeal is from an order of the Circuit Court directing the Conservator of the Estate of Fred W. Schneider to pay to the Department of Mental Health the sum of $6,807.50 for care and maintenance of the incompetent in the Kankakee State Hospital from November 19, 1963 through April 30, 1968, and $132 per month thereafter.

The facts are not in dispute. Schneider was indicted for the murder of his wife, but was found incompetent to stand trial (after a hearing pursuant to Ill Rev Stats 1963, c 38, § 104-1, et seq.), and was committed to the custody of the Department of Mental Health, which placed him in the Kankakee State Hospital on November 19, 1963. Ruth Taylor was appointed conservator of his estate. On December 28, 1965, Schneider was discharged from the hospital, but was recommitted on February 4, 1966, after again being found incompetent to stand trial.

The Department relies on the part of the Mental Health Code which provides that patients receiving treatment in the Department’s mental health program, and the estates of such persons are liable for the payment of charges for the treatment. Ill Rev Stats 1967, c 91%, § 12-12. During the period of Schneider’s first commitment, however, the Department’s rules for the determination and collection of such charges did not apply to patients committed to its care under the circumstances of the instant case. On January 1, 1966, its rules were amended to extend charges for treatment to those patients also. It is on the basis of this statute and rule that the Department, on June 3, 1966, sent Schneider’s conservator a notice that as of February 4, 1966 (the date of his second commitment), it had determined his estate to be liable for payments of $132 per month. Objecting to this determination, the conservator filed a petition for review. The Department held an informal hearing on November 29, 1967, after which it filed a petition in the Circuit Court to enforce payment. This petition sought payment not only for the period of Schneider’s second commitment (during which its amended rules were in effect), but also for the period of his prior commitment. The Circuit Court granted the petition in its entirety. The conservator appealed to the Supreme Court which found that it lacked jurisdiction on direct appeal and transferred the case to this court.

The question presented is whether the Department has authority to charge a person or his estate for his hospital care when he has been charged with a felony but is committed to the Department on a finding that he is incompetent to stand trial.

At common law and by statute in Illinois, a prisoner is not liable for his maintenance and medical care. Ill Rev Stats 1967, c 75, § 19, provides:

The warden of the jail shall furnish necessary bedding, clothing, fuel and medical aid for all prisoners under his charge ....

In County of La Salle v. Milligan, 143 Ill 321, 334, 32 NE 196, the court held that the sheriff, as warden of the county jail, was required to furnish all necessary medical aid to the prisoners, and that the county was liable for those expenses. This basic rule was reaffirmed in Silver Cross Hospital v. Boyden, 351 Ill App 283, 286-88, 114 NE2d 898, although the county was held free from liability on the narrow ground that the prisoner’s medical treatment had been arranged by him with his personal physician.

The Department takes the position that the general rule of a prisoner’s nonliability for his own care and maintenance is not applicable to a person not yet convicted of the felony with which he has been charged. While, of course, there is a difference for some purposes between persons in custody charged with a felony and persons in custody after conviction, this difference is not a distinction which should require two rules of liability for hospital care. In both cases, the person is being held in custody not primarily for his own benefit but for the benefit and protection of the public. It is true that the competency hearing itself, as the Department contends, is conducted in order to protect the accused from being tried while incompetent. People v. Bender, 20 Ill2d 45, 48, 169 NE2d 328. Nevertheless, when, as in this case, the accused is found incompetent to stand trial, and is committed to the Department, that commitment is primarily in the interest of the public welfare. This point was made clear in Kough v. Hoehler, 413 Ill 409, 109 NE2d 177. There, the parties and the court apparently assumed that the estate of an incompetent charged with crime could not be billed for treatment. Parties not charged with crime contended that it was illegal for them to be required to pay when persons charged with crime were not required to do so; that such an arbitrary classification was unconstitutional. The court held this to be a valid distinction, however, and said at pages 416-417:

This argument is based upon the fact that the act excludes from its provisions mentally ill persons who are in custody on a criminal charge. . . . Those who are charged with crime, or who have been convicted of crime, would ordinarily be in the jail or penitentiary, bht on account of the fact that there are no facilities there for treating them for their physical and mental ills they are transferred to the hospitals. Moreover, the public is vitally and directly interested in those who are in custody. They are in custody initially for the protection of the public, when convicted or accused of a crime. They do not cease to be of intimate consideration to the public merely because they are, or become, insane, nor do they cease to be in custody for the same reason.

A consideration of the statute which governs the commitment of incompetent accuseds reinforces this conclusion. Ill Rev Stats 1967, c 38, § 104-1, et seq. Section 104-3(a) provides that a person found incompetent shall be committed to the Department “during the continuance of that condition.” And section 104-3 (b) states that if a person is found competent after his commitment, the suspended criminal proceedings pending against him “shall be resumed.” In addition (by section 104-3(c)), the duration of his commitment is credited to him against any sentence he may receive. In this respect, the period during which an accused incompetent is in the custody of the Department is analogous to the confinement in jail of an accused person awaiting trial. Ill Rev Stats 1967, c 38, § 119-3.

The Department contends that it has the authority, under the Mental Health Code, to charge all patients committed to its care, irrespective of the procedural route of such commitment. In support of this position, it relies on Ill Rev Stats 1967, c 91½, § 12-12, which states:

Each patient receiving treatment in a mental health program of the Department, and the estate of such patient, is liable for the payment of sums representing charges for treatment of such patient at a rate to be determined by the Department in accordance with this Section.

Broad as is the language of this section, we think it is not applicable to the facts of this case when consideration is given to the other statutory provisions and decisions above cited, and in the light of what we believe to be the basic jurisdiction clause of the Mental Health Code itself. We refer to section 2-1 (Ill Rev Stats 1967, c 91½, § 2-1) which provides in pertinent part:

The circuit courts have jurisdiction under this Act over persons not charged with a felony who are in need of mental treatment or are mentally retarded. (Emphasis supplied.)

Other sections of the Mental Health Code appear on their face to indicate that the Code cannot have been intended to apply to persons charged with a felony. Examples are section 10-4, giving a hospital superintendent the authority to release patients temporarily or grant their absolute discharge; and section 11-1, which deals with the transfer of patients to hospitals of the United States Veterans Administration.

It is also significant, we believe, that it is in a statute other than the Mental Health Code that we find expression of the Department’s power, duty and responsibility to maintain and operate the Illinois Security Hospital for the confinement of persons who are charged with crimes but have been adjudged insane. Such persons are to be kept confined in that institution unless, in the judgment of the Department, they can, without danger to the public, be transferred to another State institution for the mentally ill. Ill Rev Stats 1967, c 91½, § 100-14.

We conclude that the Mental Health Code, and specifically § 12-12 thereof, is inapplicable to persons “charged with a felony.”

The Department, however, points to the language of section 100-14(c), supra, relating to the powers and duties of the Department concerning the Illinois Security Hospital as a source of authority outside of the Mental Health Code to charge accused incompetents for their treatment. That section states in part:

. . . the Department, except where otherwise provided by law, shall, with respect to the management, conduct and control of the Illinois Security Hospital and the discipline, custody and treatment of the persons confined therein, have and exercise the same rights and powers as are vested by law in the Department with respect to any and all of the State institutions for the mentally ill . . . .”

This cannot, however, be read to extend the right of the Department of charge patients for their care under section 12-12 of the Code to patients charged with a felony, since these patients are specifically exempted from the Code by its own terms. This specific exemption is what the clause in section 100-14(c), “except where otherwise provided by law,” could have been intended to refer to.

The Department also argues for its position in this case on the strength of the application of the Mental Health Code to a person charged with a crime who is found not guilty by reason of insanity and still insane. This can be of no assistance to the Department, however, since the pertinent statute (Ill Rev Stats 1967, c 38, § 118-2(a)) specifically provides that the detention, care, treatment and discharge of such a person “shall be governed by the provisions of (the Mental Health Code).” [4] Since no statute abrogates the common-law rule or supersedes the statutory requirement that a person in custody charged with or convicted of a crime be furnished necessary medical treatment, without cost to him, the Department of Mental Health cannot charge an accused incompetent’s estate for his treatment.

In view of our decision, we need not consider appellant’s alternate contention that the Circuit Court erred in ordering payment for the period of first confinement.

The order of the Circuit Court is reversed.

Reversed.

STAMOS, P. J. and DRUCKER, J., concur.

       In 1967, the word “felony” was substituted for the word “crime,” which had been used in the Code from its first enactment in 1951.


source: Caselaw Access Project

author: MR. PRESIDING JUSTICE STAMOS

license: Public Domain

text:
    Russell Cecola, Plaintiff-Appellee, v. Illinois Bell Telephone Company, a Corporation, Defendant-Appellant.
    Gen. No. 53,959.
    First District, Fourth Division.
    October 30, 1970.

      William P. Richmond and Ronald J. Sklar, of Chicago (Sidley & Austin, of counsel), for appellant.
    Joseph A. Rosin and Jerome H. Torshen, of Chicago (Jerome H. Torshen, Ltd., of counsel), for appellee.
   MR. PRESIDING JUSTICE STAMOS

delivered the opinion of the court.

This action was brought to recover damages caused by the alleged negligence of defendant in leaving a cable trailer cart and equipment overnight on the public sidewalk at the site of a repair job. The jury awarded the sum of $11,600 to plaintiff, and defendant appeals, presenting the following contentions for review: (1) The court should have directed a verdict in favor of defendant since plaintiff was guilty of contributory negligence as a matter of law and (2) The jury was improperly instructed.

At the time of the occurrence, plaintiff was employed as a bartender. After working the afternoon shift, he closed the tavern at about 1:30 or 2:00 a. m., January 3, 1960, and departed with a woman patron. They drove to the Carling Hotel at 1512 North LaSalle Street. He parked the car about five feet north of defendant’s cable trailer cart, which was located on the sidewalk about a foot and one-half from the curb. He and his woman friend passed this cart on their way to the hotel. At 4:00 a. m. plaintiff and the woman emerged from the hotel and he placed her in a cab. He then turned and walked north toward his car.

He passed the trailer cart by walking into the space between the curb and the cart and tripped over some projecting equipment and fell down. As a result of this fall, he sustained a fracture to his right ankle.

Plaintiff identified four photographs as' truly and correctly depicting the condition and location of the trailer cart and the equipment around it as he saw it on the morning of the occurrence, and also the location of his car in relation to the trailer cart. These photographs depict that two angle-bar-like legs about an inch in diameter, of collapsible metal “men working” signs were projecting at least nine inches into the space between the cart and the curb and about 5 to 10 inches above the sidewalk.

The right wheel of the trailer cart was about a foot and a half from the curb and there was space to walk between the cart and the curb. After he had fallen, a passerby observed his predicament and summoned the clerk from the hotel who assisted plaintiff into the hotel. A cab was called, because plaintiff could not drive, and he was removed to a hospital.

The woman who accompanied him to the hotel that morning entered the tavern at about 10:00 p. m. Between that time and the time they left the tavern, she was drinking at the bar, but plaintiff testified that he consumed only six bottles of water.

There was also medical testimony and evidence adduced pertaining to the issue of damages.

On the morning of the occurrence plaintiff telephoned his brother Nick and advised him that he had sustained injuries to his ankle and leg when he fell over defendant’s equipment in front of the Carling Hotel and asked Nick to pick up his car. Nick and a friend went to the scene and took photographs that morning which were introduced into evidence.

A police officer for the City of Chicago in pursuance of his duties was directed to visit the Henrotin Hospital to interview plaintiff and complete an accident report. He entered the emergency room and saw plaintiff on an emergency table, but was not successful in communicating with plaintiff. He noticed a strong odor of alcohol on plaintiff’s breath and in trying to determine what had occurred, he noticed that plaintiff’s answers were incoherent and slurred. He advised the nurse that he would return at a later time and went to the scene of the accident to view the physical conditions. At the time he observed the scene, everything seemed to be in normal order around the trailer cart, but inasmuch as it did not enter into his investigation at this time he did not pay much attention to it. It was still dark, but the street lights were on.

At that time, he was not aware the defendant’s property was involved in the accident. It could not be determined whether the difficulty in communicating with plaintiff was due to plaintiff’s physical distress or due to an alcoholic condition. The police report reflects that plaintiff had been drinking, but does not reflect that plaintiff was intoxicated or drunk. The witness testified, however, that in his opinion plaintiff had an excess of alcohol to drink.

The manager of the hotel testified that he found plaintiff leaning against the desk, very flushed, very excited and slurred of speech. He was advised by the desk clerk that plaintiff had fallen over some telephone equipment, and was in severe pain. The witness went out to inspect the telephone equipment. It was just south of the north end of the hotel property. The sidewalk is about 20 feet wide. His examination of the equipment revealed it was neatly piled and testified that plaintiff’s four photographic exhibits did not truly and correctly depict the trailer cart and equipment. The witness also testified that being a layman and not a medical authority, he could not express an opinion as to whether plaintiff was intoxicated or not, except plaintiff was flushed, slurred of speech and said he was in pain.

A splicing foreman for defendant testified that the cable trailer cart is about four feet tall and seven to seven and a half feet long. The sidewalk where the instant cart was located was between 15 and 18 feet wide. The car was used for storing tools, equipment and material. Anything that was too large to place in the cart was placed alongside and chained to the cart. The cart and equipment were located at the scene because the defendant was engaged in some underground transfer work on LaSalle Street. On January 4, 1960, when he went to the jobsite, the desk clerk at the Carling Hotel advised him of plaintiff’s falling over defendant’s equipment. The witness, out of curiosity, examined the equipment and observed nothing unusual. This witness also testified that plaintiff’s photographic evidence did not truly depict the location and condition of defendant’s property.

OPINION

Defendant initially contends that the trial court erred in refusing to grant defendant’s motion for a directed verdict in that plaintiff was guilty of contributory negligence as a matter of law.

In Pedrick v. Peoria & E. R. Co., 37 Ill2d 494, 229 NE2d 504 (1967) the court stated at page 510:

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

Defendant contends that the uncontroverted evidence established that immediately prior to the occurrence plaintiff spent 10 hours in a bar and two hours in a hotel with a lady; that he saw the cart as he walked toward the hotel; that after leaving the hotel, plaintiff again saw the cart and proceeded 10 to 15 feet toward it and while endeavoring to pass between the cart and the curb, he walked into the cart and fell down; that the scene of the accident was well illuminated.

Defendant’s argument is that the trailer cart, which was a two-wheel affair, 4 feet high and wide and approximately 7 to 7% feet long, was so apparent and obvious to plaintiff, that he was guilty of contributory negligence when he walked into it and sustained his injuries. In view of the foregoing, defendant argues that plaintiff knowingly exposed himself to danger and failed to see what was clearly visible. There is evidence, however, that plaintiff tripped over projecting equipment, as he avoided walking into the trailer cart. There is no evidence that plaintiff saw this projection when he was proceeding toward the hotel, but only that he was aware of the presence of the cart.

There was no testimony regarding the lighting conditions at this space between the cart and the curb. The hotel manager testified that “the area was certainly very illuminated.” Plaintiff testified that it was four o’clock in the morning and it was dark. We find that the evidence fails to establish that the projection was so apparent and so obvious to plaintiff as he walked around the trailer cart, so as to charge him with contributory negligence as a matter of law and therefore, the trial court did not err in refusing to direct a verdict in defendant’s favor.

The authorities cited by defendant in support of his contention all involve facts where plaintiff had previous knowledge or notice of the danger or where the danger was obvious and clearly apparent.

Defendant also argues that two impartial witnesses, the police officer and the manager, testified that plaintiff was drunk at the time of the occurrence.

The evidence reveals that the police officer who interviewed plaintiff at the hospital noticed a strong odor of alcohol on plaintiff’s breath and was of the opinion that plaintiff had had “an excess of alcohol to drink.” However, the officer failed to state in his report that plaintiff was drunk or intoxicated. Moreover, the officer testified that he did not know if plaintiff’s difficulty in communicating was due to plaintiff’s physical distress or an intoxicated condition. The manager related that when he saw plaintiff after the accident, plaintiff was very excited, flushed and slurred of speech, but could not state that plaintiff was intoxicated. Plaintiff’s condition as to sobriety was properly one of the issues of fact to be taken into consideration by the jury on the question of contributory negligence.

Defendant next contends that the court erred in giving the following instruction, based on Illinois Pattern Instruction No. 60.01 titled “Violation of Statute or Ordinance:”

“There was in force in the City of Chicago at the time of the occurrence in question a certain ordinance which provided that no person shall use any public sidewalk for the storage of personal property of any kind, nor shall any person place or cause to be placed in or upon any public sidewalk any obstruction of any kind.
“If you decide that any employee of the defendant corporation, in the exercise of his ordinary duties of employment, violated the ordinance on the occasion in question, then you may consider that fact together with all the other facts and circumstances in evidence in determining whether or not the defendant corporation was negligent before and at the time of the occurrence.”

The Ordinance, Section 34-6 of the Municipal Code of Chicago reads as follows:

“No person shall use any public way for the storage of personal property, goods, wares or merchandise of any kind. Nor shall any person place or cause to be placed in or upon any public way any barrel, box, hogshead, crate, package or other obstruction of any kind, or permit the same to remain thereon longer than is necessary to convey such article to or from the premises abutting on such sidewalk.
“For this purpose of receiving or delivering merchandise, no person shall occupy over four feet of the outer edge of the sidewalk in front of his store or building.
“Any person violating any of the provisions of this section shall be subject to a fine of not less than five dollars nor more than ten dollars for each offense.”

It is a well-settled principle of law that violation of an ordinance enacted as a public safety measure is prima facie evidence of negligence. Bell v. Willoughby Tower Bldg. Corp., 46 Ill App2d 45, 196 NE2d 487 (1965). However, defendant argues that Section 34-6 was not enacted as a public safety measure, but rather as a measure to facilitate the free flow of pedestrian trafic.

Section 34-6 initially prohibits the use of the public ways for storage of personal property. However, the second and third sentences of the section limit this prohibition to permit the placing of personal property in designated areas for the purpose of delivery or receipt of goods. Where these permitted uses are enumerated, the only conditions placed upon them relate to time and place. No safety measures are required during the pendency of a permitted use.

However, in contrast, defendant cites Section 33-52 (Barricade of Street Openings and Obstructions), which requires the utilization of safety devices where streets are under construction or repair. The purpose of these devices as recited by the section is “to prevent danger to persons who may be travelling such streets.” No such recitation appears in Section 34-6, nor does the section require any safeguards during the period of time the sidewalk is obstructed.

Plaintiff cites True and True Co. v. Woda, 201 Ill 315, 66 NE 369 (1903) for the proposition that ordinances similar to the one at bar were found to be enacted to prevent injury. In True, a child was killed when a pile of lumber upon a sidewalk fell over and killed him. There the court held that it was proper to advise the jury that the piling of the lumber on the sidewalk was in violation of two ordinances. The opinion in True relates the content of the two ordinances in a very general manner. The first ordinance permitted placing articles and things on sidewalks, but provided a penalty if they were occupying more than three feet next to a building and more than four feet above the top of the sidewalk. In True, the lumber pile was from 3 to 5 feet above the sidewalk and the applicability of that ordinance was obviously directed to prevent what occurred, a pile of lumber toppled and killed plaintiff’s intestate.

Unlike the ordinance at bar, the second ordinance in True, supra, absolutely prohibited the placing of wood, coal or any article whatsoever on the sidewalk. Additionally, we note that the court in the case at bar improperly phrased the ordinance in transposing it into the instruction. The ordinance did not prohibit the obstruction of the right-of-way, but recited that containers or receptacles should not remain longer than necessary to the right-of-way in their being moved in or out of the abutting premises. The ordinance also provided that for the purpose of receiving or delivering merchandise, “no person shall occupy over four feet of the outer edge of the sidewalk in front of his store or building.” The instruction as given advised the jury that no object of any kind could legally be placed upon the sidewalk for any reason at any time.

In view of the foregoing, we believe that Section 34-6 was enacted as a measure to facilitate the free flow of pedestrian traffic and not as a safety measure and therefore find that instructing the jury with regard to Section 34r-6 was prejudicial error.

Therefore, the judgment is reversed and the cause remanded for a new trial.

Reversed and remanded.

DRUCKER and ENGLISH, JJ., concur.

       The jury in response to defendant’s special interrogatory, found plaintiff not guilty of contributory negligence.


text:
    City of Chicago, a Municipal Corporation, Plaintiff-Appellee, v. Peter Earle, Jr., Defendant-Appellant.
    Gen. No. 55,141.
    First District, Fourth Division.
    October 30, 1970.
    Rehearing denied November 24, 1970.
    Victor M. Earle, III, of New York, New York (David Goldberger, of Chicago, of counsel), for appellant.
    Richard L. Curry, Corporation Counsel of City of Chicago (Marvin E. Aspen and Richard F. Friedman, Assistant Corporation Counsel, of counsel), for appellee.
   MR. JUSTICE ENGLISH

delivered the opinion of the court.

The City has moved to dismiss defendant’s appeal on the jurisdictional ground that the notice of appeal was not filed in apt time.

On December 19, 1969, judgment was entered finding defendant guilty of violating the disorderly conduct ordinance of the City and imposing a fine. Municipal Code of Chicago, section 193-1 (a). The record is not clear as to the date of making or filing motions in arrest of judgment and for new trial, or their continuance if they were properly presented within 30 days of judgment. Giving defendant the benefit of the doubt in regard to the timely filing of these motions, it does appear that they were denied by an order entered on February 2, 1970.

Supreme Court Rule 303(a) requires the filing of a notice of appeal within 30 days after disposition of post-trial motions, and Rule 301 provides that such filing is essential to jurisdiction in the reviewing court. Ill Rev Stats 1969, c 110A, §§ 303(a), 301. Thus, defendant’s notice of appeal, to accomplish its function in this case, must have been filed by March 4, 1970. It was not. It was filed on March 26, 1970, and, lacking jurisdiction to proceed, this court would find it necessary to dismiss the appeal on its own motion had not the City done so. See, for example, Pruitt v. Motor Cargo, Inc., 30 Ill App2d 222, 227-228, 173 NE2d 851, and cases there cited.

Defendant opposes dismissal, contending that a stay of mittimus which had been ordered until March 25, 1970, had the effect of extending the time for filing a notice of appeal in the same way as a motion for new trial. We have been directed to no authority for this proposition, nor have we been able to find any. Rule 303(a), cited above, states that the 30-day period for filing starts with the entry of judgment or disposition of “a timely motion directed against the judgment.” A motion for stay of mittimus does not have the character of being “directed against the judgment.” See Tomaska v. Barone, 104 Ill App2d 356, 358-359, 244 NE2d 327.

The appeal is dsmissed.

Dismissed.

STAMOS, P. J. and DRUCKER, J., concur.


author: MR. JUSTICE ADESKO

text:
    La Salle National Bank, Trustee Under Trust No. 36779, and Richard E. Carlson, Plaintiffs-Appellees, v. City of Chicago, a Municipal Corporation, Defendant-Appellant.
    Gen. No. 53,422.
    First District, First Division.
    October 30, 1970.

      Richard L. Curry, Corporation Counsel of City of Chicago (Marvin E. Aspen, Head of Appeals and Review Division, and Ronald S. Cope, Special Assistant Corporation Counsel, of counsel), for appellant.
    Thomas W. McNamara, of Chicago (Jenner & Block, of counsel), for appellees.
   MR. JUSTICE ADESKO

delivered the opinion of the court.

Plaintiffs, LaSalle National Bank, as Trustee and Richard E. Carlson, as beneficial owner, brought a declaratory judgment action against the City of Chicago to declare the Chicago Zoning Ordinance invalid as applied to the property in question. The trial court entered a judgment order which declared the R-l single-family residence classification void as applied to the subject property but specifically rejected the plaintiffs’ proposed plan of development. Instead, the court entered an order which would permit the construction of a “multiple-family apartment project subject to all applicable valid ordinances of the City of Chicago and to the R-3 General Residence District provisions of the Chicago Zoning Ordinance.” Defendant city appeals the judgment order.

The subject property is a vacant lot at the northwest corner of 103rd Street and Prospect Avenue in the Beverly community on Chicago’s south side, with a frontage of 200 feet on 103rd Street and 198% feet on Prospect Avenue for a total area of 39,700 square feet. The property is part of a large R-l single-family residence district which extends from Prospect Avenue on the east to approximately Western Avenue on the west and from 103rd Street on the south to approximately 95th Street on the north. The beneficial owner, Richard Carlson, testified that the area was 95 percent single-family, and another of plaintiffs’ witnesses described the area as 90 percent single-family.

During the past ten years no new single-family residence has been built on 103rd Street within three blocks of the subject property. All of the new construction has been in the form of multiple-family developments. Immediately to the east of the property, across Prospect Avenue, is the Olson Property, where this court sustained a density of 1,940 square feet of floor area per dwelling unit. Olson v. City of Chicago, 122 Ill App2d 147, 251 NE2d 318 (1969). To the west of the property is the Hennessey property which has been improved with six townhouses and twelve apartment units pursuant to a court decree which allowed plaintiffs to construct eighteen units. Also, in the immediate vicinity are the Townsend developments, where pursuant to court decree, the thirty-five units of the two developments range in density from 2,500 to 3,000 square feet of lot area per dwelling unit. Consequently, the trend of development in the area has been multiple-family.

The trial court declared the existing R-l classification void as applied to the subject property. A zoning classification is void as applied to a particular property where it bears no real or substantial relation to the public health, safety and wefare, Schwinge v. Village of Niles, 101 Ill App2d 406, 412, 243 NE 255 (1969), and that the trend of development in the immediate area of the subject property is an important consideration in determining whether a particular zoning classification bears a substantial relation to the pubic health, safety and welfare. Guaranty Bank & Trust Co. v. City of Chicago, 112 Ill App2d 378, 387, 251 NE2d 384 (1969). After an examination of the entire record, we conclude that the trial court did not err in part A of its judgment order which declared the R-l ordinance void as applied to the subject property.

The trial court also specifically rejected the plaintiffs’ proposed plan of development but permitted construction of a multiple-family apartment project subject to the R-3 ordinance provisions. Plaintiff, Richard Carlson, the beneficial owner of the property as well as a licensed architect, specifically proposed to the court a plan to construct three detached structures containing a total of twenty-two units. The trial court rejected the plan on the grounds that three separate buildings on a single lot do not conform to the R-3 zoning requirements. However, the trial court entered a judgment order which would permit the plaintiff to construct a multiple-family project that would meet R-3 requirements. Plaintiff sappellees contend the decree of the trial court should be affirmed since the decree is not too broad and that development pursuant to the decree in accordance with R-3 standards is a reasonable use for the property. Defendant-appellant contends that the decree should be reversed, since an order permitting the construction of any use within a particular classification is too broad and usurps the legislative function of zoning.

The issue here is how a decree in a zoning case is to be framed. While the courts possess the authority to pass upon the validity of a zoning ordinance, this authority does not include the power to determine the ultimate zoning classification. Reeve v. Village of Glenview, 29 Ill2d 611, 195 NE2d 188 (1963). Since the practical effect of declaring an existing zoning ordinance void in regard to a particular piece of property is to leave that piece of property in an unzoned condition, the court may frame its order in reference to a specific proposal before it and find that the contemplated use would be a reasonable one. Harshman v. City of DeKalb, 64 Ill App2d 347, 212 NE2d 146 (1965). Sinclair Pipe Line v. Village of Richton Park, 19 Ill2d 370, 167 NE2d 406 (1960). However, the court must exercise'this authority with extreme care to avoid any encroachment into the legislative function of zoning. Harshman v. City of De Kalb, supra. The most that a court may do after declaring an existing zoning ordinance void as applied to certain property is to find from clear evidence before it that the specific use contemplated by the owner is reasonable and may be permitted. Fiore v. City of Highland Park, 76 Ill App2d 62, 76, 221 NE2d 323 (1966). Consequently, the decree of the trial court should be framed with reference to the evidence of the intended use and permit such use only, rather than being framed with reference to a multiple family zoning classification. Fiore v. City of Highland Park, supra.

Because Part B of the trial court’s decree is framed with reference to a multiple-family zoning classification, the R-3 classification, rather than with reference to a specific use contemplated by the owner, we reject the plaintiffs’ contention and reverse Part B of the trial court’s decree. The trial court decree in effect rezoned the property with an R-3 classification. Evidence of the fact that the trial court decree, in effect, rezoned the property is provided by plaintiffs themselves. In their brief they contend that pursuant to the trial court’s decree, their property is located on an R-3 section line street since prior to the decree the property was located on an R-l section line street. Under the R-l classification, plaintiffs were required to observe a density of 6,250 square feet of area per dwelling unit. Under an R-3 classification of property which is not on an R-3 section line street, plaintiffs would be required to observe a density of 2,500 square feet of area per dwelling unit. Plaintiffs contend that pursuant to the trial court’s decree, they are required to observe a density of only 1,650 square feet of area per dwelling unit, the amount set by the Chicago Zoning Ordinance, Article 7, Section 7.5-3 for R-3 section line streets. Thus plaintiffs, by invoking the R-3 ordinance, pursuant to the trial court’s decree, are seeking to transform an R-l section line street to an R-3 section line street, and are attempting to jump from a density requirement of 6,250 square feet of area per dwelling unit to 1,650 square feet of area per-dwelling unit, a density greater than that allowed the Olson, Hennessey, and Townsend properties. The fallacy in their theory is simply that the trial court can only approve a proposed reasonable use; it cannot rezone the property from R-l to R-3 so as to allow plaintiffs to choose that use under the R-3 classification which is most preferable.

Plaintiffs rely heavily on Olson v. City of Chicago, 112 Ill App2d 147, 251 NE2d 318 (1969), which involved property at the northeast corner of 103rd Street and Prospect Avenue, the same intersection involved in the case at bar. That case is easily distinguishable since the trial court in Olson framed its decree with reference to a specific use, namely, the construction of a four-unit townhouse, each unit to have two bedrooms. Plaintiffs attempt to distinguish Fiore v. City of Highland Park, supra, and Reeve v. Village of Glenview, supra, on the basis that a wide variety of different uses were possible under the classifications decreed by the respective trial courts in those cases that are not possible under the classification decreed by the trial court in this case. This contention is erroneous. In Fiore v. City of Highland Park, supra, a decree permitting “multiple-family dwellings under the classification ‘F’ of the Highland Park Zoning Ordinance,” a classification very similar to Chicago’s R-3, was held too broad. In Reeve v. Village of Glenview, supra, a business use classification was held too broad.

For these reasons, the judgment of the trial court is affirmed in part and reversed in part. That part of the decree of the trial court which declared the existing R-l zoning void, as applied to the property in question, is affirmed; and that part of the decree which permitted the construction of multiple family apartments subject to the R-3 zoning provisions is reversed; and the cause is remanded to the trial court with directions to frame its decree pertaining to the use of the land in question with reference to the evidence of plaintiffs’ contemplated use and to hear further evidence in this regard.

Affirmed in part and reversed in part and remanded with directions.

BURMAN, P. J. and MURPHY, J., concur.


author: MR. JUSTICE MURPHY

text:
    People of the State of Illinois, Plaintiff-Appellee, v. David Niven, Defendant-Appellant.
    Gen. No. 54,475.
    First District, First Division.
    October 30, 1970.
    Rehearing denied November 24, 1971.
    James R. Madler, of Chicago, for appellant.

      Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Robert A. Novelle, Assistant State’s Attorney, of counsel), for appellee.
   MR. JUSTICE MURPHY

delivered the opinion of the court.

In a bench trial, the defendant, David Niven, was found guilty of violating chapter 95½, § 228, Ill Rev Stats 1967, in that he was driving an overweight vehicle. On appeal, defendant contends (1) that he was not weighed at the nearest available scale, as required by statute, and that he rebutted the presumption that the scale used by the police officer in weighing his truck was accurate.

The statute in question is Ill Rev Stats, 95½, § 229, which provides:

“(a) Any police officer having reason to believe that the weight of a vehicle and load is unlawful shall require the driver to stop and submit to a weighing of the same either by means of a portable or stationary scales. If such scales are not available at the place where such vehicle is stopped, the police officer shall require that such vehicle be driven to the nearest available scale that has been tested and approved by the Illinois Department of Agriculture.”

On January 15, 1969, defendant, while driving his 1963 5-axle tractor and dump trailer on an interstate highway, was stopped by a State Police Officer, Billy L. Stanhouse. Defendant was directed to proceed to a weigh scale at Jousama Nautical Yard, 4.6 miles from the place where he was stopped. A nearer scale was located at the Kaiser Aluminum Company, 1.5 miles from the place of stoppage. Both scales were certified by the Illinois Department of Agriculture.

The scale at the Jousama Yard that was used to weigh the vehicle was a mechanical scale transmitting the weight of the vehicle to mechanical devices. Officer Stanhouse testified that before weighing the vehicle, he ascertained that the scale had a zero reading. He then weighed the vehicle and determined that the vehicle was 11,300 pounds overweight.

Defendant testified that on the day in question, prior to being stopped by Officer Stanhouse, he loaded his vehicle with stone at the Thornton Yard of the Material Service Corporation. A receipt was issued to him before he left, which showed that the vehicle was 4,400 pounds overweight.

The weighmaster of the Thornton Yard testified on behalf of defendant and stated that the Thornton Yard used electronic scales, and that the one used to weigh defendant’s vehicle was installed in September 1968, and was certified by the Illinois Department of Agriculture in September 1968. He further testified as to tests for accuracy used at the Thornton Yard and that the scale used to weigh the defendant’s vehicle on January 14, 1969, was so tested and found to be accurate.

Defendant initially contends that his vehicle was not weighed at the “nearest available scale,” and as the statute was not complied with, the judgment of guilt should be reversed. Defendant asserts that the word “nearest,” within the statute, was a mandatory direction and not directive, and the police officer had no discretion as to which scale was to be used. Defendant argues that this interpretation should be adopted since it is a penal statute and it must be strictly construed. Defendant’s authorities include People v. Isaacs, 37 Ill2d 205, 226 NE2d 38 (1967), and State v. Johnson, 43 Del 294, 46 A2d 641 (1946).

In People v. Isaacs, supra, the court stated (p 215) :

“. . . we must remember that we deal here with a penal statute and must construe it strictly in favor of the accused.”

In State v. Johnson, supra, the defendant was arrested for drunken driving and was taken to a justice of the peace and was found guilty. The justice of the peace to whom he was taken was not the nearest to the point of arrest. The relevant statute read (p 641):

“. . . it shall be the right and privilege of the person so arrested to have his or her case heard and determined by a Justice of the Peace whose regular office shall be nearest to the place where such person was arrested. It shall be a sufficient defense for any person arrested as aforesaid to show by one competent witness that there is in the State of Delaware, outside of the City of Wilmington, a Justice of the Peace whose regular office is nearer to the place where such person was arrested than the Justice before whom the case is being tried.”

The court reversed the conviction, stating (p 643):

“It is my conclusion that the words ‘nearest Justice of the Peace’ as used in this statute mean the Justice whose regular office is the nearest to the place of arrest as measured according to the shortest usual route of travel. It follows that Mr. King did not have jurisdiction to hear and determine the case.”

The State contends that the statute is directive and not mandatory, and that enforcement under it is not precluded by failure to comply with it strictly, absent a showing of prejudice. The State asserts, “The intent of the statutory duty is self-evident. The provision is couched in terms of orderly enforcement and convenience to the driver of the vehicle. The officer may not require the driver to proceed fifty or one hundred miles from his route of destination to submit his vehicle to a weighing. The statute affords the driver the right of having his vehicle weighed in close proximity of the point of arrest. The purpose of the provision is to preclude prejudicial treatment by the arresting officer. The Appellant does not offer any allegations that he was in any way prejudiced by being taken to the scale 4.6 miles from the point of arrest. The record is silent as to any allegations adequate to preclude enforcement because of prejudicial treatment.”

After examining this record, we conclude that here the phrase “nearest available scale” is directive in nature and not mandatory. The fact that defendant was not taken to the nearest scale for weighing does not, of itself, render the statute unenforceable, absent a showing of prejudice. We agree with the State that the policy behind the provision is intended to eliminate prejudicial treatment against the accused and to prevent undue burdens of traveling excessive distances to be weighed. We conclude that, absent a showing of prejudice or unfair treatment, the fact that defendant was taken to a scale a few miles farther than was necessary, while not condoned, does not render the statute unenforceable as to him.

The defendant next contends (1) that he rebutted the prima facie presumption that the scale at the Jousama Yard was accurate, arising from the fact that it was certified and therefore the State has not proved defendant guilty beyond a reasonable doubt. He argues that the scale at Material Service, where he was weighed before being stopped by Officer Stanhouse, had a more recent certification of inspection than the one where his vehicle was weighed (approximately four months); (2) that the scale at the Thornton Yard was checked for accuracy each day; and (3) that the scale was more modern and efficient than the one at Jousama.

The State contends that the defendant had the burden of rebutting the prima facie case of accuracy of the Jousama scale. The State argues that the evidence introduced by defendant in no way demonstrates any inaccuracy of this scale and does not raise a reasonable doubt as to defendant’s guilt.

Among the authorities cited by the State is People v. Fair, 61 Ill App2d 360, 210 NE2d 593 (1965), where the court stated (p 366):

“We are of the opinion that the testimony of the arresting officer and the certificate of accuracy of the scale is sufficient to make a prima facie case for the accuracy of the scale.
“Defendant’s argument with respect to the accuracy of the scales loses force by reason of the large percentage of the overweight in the instant case. Officer Haines testified the truck was 18,980 pounds over the statutory maximum of 72,000 pounds. This leaves an allowance of 26% for any possible inaccuracy, and makes the proof of violation conclusive.”

The court also commented (p 367):

"Assuming the validity of the statute, which is not questioned, we must recognize that to impose upon its legal enforcement impractical requirements for proof of such matters as men in the ordinary course of business take for granted would make detection and punishment of violations impossible.”

The record showed that Officer Stanhouse weighed the vehicle on a certified scale under the proper procedure, all of which is not contested by defendant. Officer Stanhouse found the vehicle to be 11,300 pounds overweight; also, defendant’s own evidence showed the vehicle was overweight 4,400 pounds. There is no question but that in the instant case there was a violation.

For the foregoing reasons, we conclude defendant was proved guilty of a weight violation beyond a reasonable doubt, and his conviction should stand. The judgment of the Circuit Court of Cook County is affirmed.

Affirmed.

BURMAN, P. J. and ADESKO, J., concur.


text:
    A. Willard Longenecker, d/b/a Chicago Management Company, Plaintiff-Appellee, v. Herbert H. Hardin and Ether L. Hardin, Defendants-Appellants.
    Gen. No. 54,401.
    First District, Fourth Division.
    October 30, 1970.

      Ron Fritsch, of Chicago, for appellants.
    Alan Kawitt, of Chicago, for appellee.
   MR. PRESIDING JUSTICE STAMOS

delivered the opinion of the court.

Plaintiff recovered a judgment in the amount of $355 and costs against defendants for past due rent. Defendants appeal, and contend that the court erred in striking their two affirmative defenses.

On October 26, 1967, the parties executed a lease for the rental of an apartment from November 1, 1967, through October 31,1968, for $115 a month.

In the latter part of April, 1968, plaintiff initiated a forcible entry and detainer action against defendants for possession of the apartment and on May 10, 1968, the court entered judgment for possession but stayed the issuance of the writ of execution until May 25, 1968, on which day defendants vacated the premises.

Later in the year, plaintiff initiated another action, judgment by confession, as provided for in the lease and alleged that the sum of $470 was due and unpaid for rents, and that plaintiff was also entitled to $14.10 interest and $80.12 in attorneys fees for a total of $564.22. Defendants upon being served with summons to confirm the judgment responded and interposed two affirmative defenses.

Defendants’ first affirmative defense was that the parties agreed to cancel the lease as evidenced by the written expression on the face of the lease which provided, “May 10, 1968, lease cancelled by agreement, Chgo. Mgmt. Co., by Moe M. Forman, its atty.” Defendants alleged that plaintiff by his attorney promised to relinquish, waive, surrender and release all rights accruing to him under the lease, in return for defendants’ promise to vacate the premises within 15 days and to forbear any contest of plaintiffs’ action for possession. Defendants further allege that they performed in conformance with their part of the bargain.

Defendáis’ second affirmative defense was that the lease was invalid and unenforceable in light of sections 78-13 and 78-17 of the Municipal Code of the City of Chicago. Section 78-13 provides:

“No person shall occupy as owner-occupant, nor shall any person let or hold out to another for occupancy, any dwelling or family unit which does not comply with the requirements of section 78-13.1 through 78-13.12 of this chapter.”

Section 78-17 provides:

“No person shall occupy as owner-occupant or shall let or hold out to another for occupancy any dwelling or family unit, for the purpose of living therein, which is not safe, clean, sanitary and fit for human occupancy, and which does not comply with the particular requirements of sections 78-17.1 through 78-17.8 of this chapter.”

Defendants specifically alleged that the premises were in violation of sections 78-13.1 (Water closet), 78-13.6 (Maintenance of sanitary facilities), 78-13.8 (Heat to be furnished, 78-13.11 (Hot water to be furnished), 78-17.1 (Foundations, exterior walls and roofs — maintenance) , 78-17.2 (Floors, interior walls and ceilings— maintenance), 78-17.3 (Windows, doors and hatchways —maintenance), 78-17.5 (Stairways and porches — maintenance) , and 78-17.7 (Facilities, equipment, chimneys —maintenance).

Plaintiff moved to strike both affirmative defenses. The court granted plaintiff’s motion and the cause proceeded to trial. Plaintiff was awarded judgment in the amount of $355 and costs, representing the rent due for the months of March, April and May, 1968, and the unpaid portion of the rent due from February. Defendants appeal from this judgment.

Defendants initially contend that their first affirmative defense was improperly stricken. However, plaintiff maintains that this first affirmative defense was properly stricken because: (1) an attorney retained to prosecute a single action for possession has no authority to compromise his client’s rights as to past or future rent due under the leasing agreement and (2) there was no consideration for the extinguishment of the past due rent.

Plaintiff correctly recites an abstract proposition of law regarding the implied authority of a lawyer retained to prosecute an action for possession, but defendants allege that counsel, in fact, did act within the scope of his authority in the case at bar in entering into this agreement on behalf of his client. We hold that defendants should have been afforded the opportunity to adduce evidence on this issue.

With regard to plaintiff’s contention as to the failure of consideration, defendants’ promise to vacate the premises within 15 days and to forbear any contest of plaintiff’s action for possession was sufficient consideration to support plaintiff’s promise to surrender and release defendants from all past due rent. Bloomquist v. Johnson, 107 Ill App 154.

Therefore, we conclude that the court erred in striking defendants’ first affirmative defense.

Defendants next contend that their second affirmative defense was improperly stricken. However, plaintiff maintains that this second affirmative defense was properly stricken because: (1) defendants were barred by the doctrine of laches, (2) defendants were precluded by a provision of the lease from asserting violations of the Municipal Code of the City of Chicago, and (3) such alleged violations would not relieve a tenant from the obligation to pay rent while the tenant remained in possession.

Initially, we note that plaintiff failed to raise his contention of laches in the court below. Therefore, it will not be considered by this court for the first time on appeal.

Plaintiff also argues that the lease contained the following provision, which allegedly deprives defendants of any standing to assert that the premises were in violation of the cited sections of the Municipal Code of the City of Chicago:

“Condition of Premises. Lessee has examined said premises and appurtenances prior to execution hereof, and is satisfied with the physical condition thereof, and his execution hereof shall be conclusive evidence of his acknowledgment thereof in good order and repair, except as otherwise specified hereon (there were no exceptions stated, however) and agrees that no representation as to condition or repair has been made by Lessor or Lessor’s Agent not contained herein, and that no promise to decorate, alter, repair, or improve, either before or at the execution hereof, not contained herein, has been made by Lessor or his agent.”

This provision cannot preclude the interposition of the doctrine of illegality of the lease. In Estate of Smythe v. Evans, 209 Ill 376, 70 NE 906 (1904), at page 383, the court said:

“The great weight of authority is that where a party comes into court seeking to enforce a contract which is against public policy or is prohibited by public law, the court will refuse to aid either party and will leave them where they have placed themselves, and in refusing to enforce such contracts the court does not act for the benefit, or for the preservation of the alleged rights, of either party, but in the maintenance of its own dignity, the public good and the laws of the State.” Cases Cited).

Furthermore, the court should have considered the issue of illegality even if it had not been specifically raised, as it was, in defendants’ pleading. In Huszagh v. City of Oakbrook Terrace, 41 Ill2d 387, 243 NE2d 831 (1968) at page 389, the court expressed the prevailing rule:

“Where a court is called upon to enforce a contract, the matter of its illegality may be inquired into whether or not it is set up as a defense in the answer.” (Cases Cited.)

Plaintiff’s next point is that violations of the Housing Code will not relieve a tenant from the obligation to pay rent while the tenant remains in possession. This argument is based upon the doctrine of constructive eviction. However, the allegations of defendants’ second affirmative defense are not directed to the doctrine of constructive eviction but rather to the invalidity of the leasing agreement itself in light of the city ordinances.

The effect of statutory prohibitions in contractual relationships was dealt with in Ideal Bldg. Material Co. v. Benson Concrete Co., 273 Ill App 519 (1934) wherein the court stated at page 525;

“The general rule appears to be that any act forbidden by statutory law, if passed for the protection of the public and which provides for a penalty, cannot be the foundation of a valid contract. It is not essential that the act provided directly that such agreement be void, but it becomes so by reason of the fact that it is in violation of a prohibited act and is, therefore, illegal and unenforceable in and of itself. An act may be rendered illegal either by express prohibition or the imposition of a penalty as in the case at bar.”

Section 78-11 of the Municipal Code of the City of Chicago declares the purposes of the Housing Code and Specific Findings of the Chicago City Council. The purposes of the Code were also discussed in Gula v. Gawel, 71 Ill App2d 174, 218 NE2d 42 (1966) and at page 183, the court stated:

“We have examined the Chicago Housing Code in detail and in our opinion it is a public safety measure. The City Council declared its purpose to be the protection of the ‘public health, safety, comfort, morals and welfare of the people of the city of Chicago’ (section 78-11), and no argument has been advanced here (nor in the case at bar) to challenge the findings of the Council that substandard dwellings affect public health and safety. The provisions of the Housing Code concern themselves to a large extent with the condition of premises leased to tenants, and the condition of such premises has an obvious connection with the health and safety of the tenant-occupant. A tenant is clearly within the class of persons designed to be benefitted and protected by the Code.”
“Further, the Housing Code represents a significant change from common-law standards. At common law, there was no prohibition against letting a tumble-down house. (1 Tiffany, Landlord and Tenant, sec 86 at 557 (1910)); Koenigshofer v. Shumate, 68 Ill App2d 474, 216 NE2d 195 (1966).”

Violations of Chapter 78 render the party liable for penalties as provided for in section 78-20.

Therefore, the provisions of the Chicago Housing Code fall within that class of statutory law outlined in Ideal, supra.

Such violations of statutory law have been held to invalidate a lease like the one in Heineck v. Grosse, 99 Ill App 441 (1902). In that case, the court held that a lease executed in violation of an ordinance prohibiting the occupancy of part of a sidewalk for private purposes is invalid and could not be made the basis of an action for recovery of rent. At page 444, the court stated:

“Moreover, the lease is in direct violation, so far as it provides for the occupancy of a portion of the sidewalk, of the municipal ordinances above set out, and is therefore invalid. Being invalid as to a part of the lease, because of its violation of the city ordinances, it can not be the basis of a recovery in this suit. Estate of Ramsey v. Whitbeck, 183 Ill 550-65, and cases cited: Shortall v. Fitzsimons & C. Co., 93 Ill App 231-4, and cases cited.”

Similarly, in Western Cold Storage Co. v. Estate of Kaufman, 204 Ill App 477 (1917) the court held that a contract for storage charges upon decayed and unwholesome fruit and vegetables was unenforceable because its terms violated the city ordinances which prohibited the storing of condemned produce and provided a penalty therefor.

In Brown v. Southall Realty Co., 237 A2d 834 (1968), the District of Columbia Court of Appeals held that where at the time of execution of the lease the premises were in violation of the Housing Code rendering habitation unsafe and unsanitary, the lease was void and the tenant was absolved of liability for rent. The District of Columbia Housing Code in that case provided:

“No persons shall rent or offer to rent any habitation, or the furnishings thereof, unless such habitation and its furnishings are in a clean, safe and sanitary condition, in repair, and free from rodents or vermin.”

We note that this ordinance is similar to sections 78-13 and 78-17 of the City of Chicago Municipal Code.

Therefore, we find that the trial court erred in striking the second affirmative defense. Defendants should have the opportunity to present evidence to show that the premises were in substantial violation of an ordinance cited by defendants.

Therefore, the judgment and the order striking defendants’ affirmative defenses are reversed and the cause remanded for proceedings not inconsistent with the views herein expressed.

Reversed and remanded.

DRUCKER and ENGLISH, JJ., concur.

       Housing Code — Regulations for Buildings Used for Housing in Chicago.
      (Declaration of policy.)
      78-11. The purpose of this ordinance is to protect public health, safety, comfort, morals and welfare of the people of the city of Chicago, by enacting a housing code which establishes for all buildings used for housing:
      (a) Minimum standards for cooking, heating and sanitary equipment necessary and expedient to promote health, suppress disease and protect safety of occupants of such buildings, and of neighboring properties;
      (b) facilities for ventilation, light, space and means of egress which promote health and preserve safety;
      (c) minimum standards of maintenance and responsibilities of owners, operators and occupants of dwellings for such maintenance which promote health and safety and aid in the enforcement of such standards;
      (d) minimum standards essential to health, safety and welfare which are uniform in application to all dwellings whenever constructed so that with the resulting uniformity, simplicity and certainty, owners, operators and tenants are better able to determine the applicability of the law to them and the laws applicable to housing are administratively more convenient to enforce.
      the city council finds that
      (a) there exist in the city numerous dwellings which are substandard in one or more important features of structure, equipment, maintenance and occupancy;
      (b) such conditions adversely affect public health and safety;
      (c) such conditions contribute to the rapid deterioration and declining desirability of many residential areas of our city and tend to produce blight and slums;
      (d) such conditions conflict with and destroy programs of this city under the Urban Community Conservation Act, as amended, and other acts of the State of Illinois designed to prevent slums and conserve residential areas;
      (e) adequate protection of public health, safety, comfort and welfare and the maintenance of a workable program for prevention of slums and conservation of our city require the establishment and enforcement of minimum housing standards applicable to all dwelling units in this city;
      (f) healthful and sanitary conditions in relation to space, use and arrangement of rooms generally prevail in single-family dwellings occupied by an owner and his family.


author: MR. JUSTICE LEIGHTON

text:
    Edmond Bruen, Plaintiff-Appellant, v. Burton Auto Spring Corporation, a Corporation, Defendant-Appellee.
    Gen. No. 52,689.
    First District, Third Division.
    July 2, 1970.

      Philip H. Corboy, Richard J. Phelan and Jerome H. Torshen, of Chicago, for appellant.
    Baker and McKenzie, of Chicago (Francis D. Morrissey and Thomas F. Tobin, of Chicago, of counsel), for appellee.
   MR. JUSTICE LEIGHTON

delivered the opinion of the court.

This appeal presents a question concerning the Structural Work Act, Ill Rev Stats 1959, c 48, §§ 60-69. Plaintiff sued to recover for personal injuries suffered when he fell from a scaffold. A jury returned a verdict in favor of defendant; and judgment was entered after a post-trial motion was overruled.

In July 1960, defendant, Burton Auto Spring Corporation, owned a plant building which had in it, among other equipment, an overhead crane. McKeown Bros. Company, plaintiff’s employer, was an expert in the repair of building trusses. On July 27, 1960, pursuant to a contract, McKeown, with plaintiff as one of its workmen, was repairing trusses in defendant’s building. Plaintiff’s employer had charge of the work. Although the overhead crane was not in operation, McKeown obtained permission to use it in the truss repairs. The crane was moved by a jeep whose driver was defendant’s employee. To facilitate work on the trusses, plaintiff, at the direction of his foreman, used six or seven planks, ten to sixteen feet long, and built a scaffold by making a platform on the bridge of the crane. While working on a truss, plaintiff tried to put a piece of metal under a plank of the platform. The plank snapped off and broke. Plaintiff lost his balance and fell from the top of the crane, suffering serious injuries.

At the conclusion of the evidence, plaintiff tendered but the court refused to give three instructions.

Instruction No. 21:
The plaintiff has the burden of proving each of the following propositions:
First, that the defendant was one of the persons having charge of the scaffold in question; ....
Instruction No. 27:
You are instructed that more than one person can be, under the law, in charge of the scaffold in question. . . .
Instruction No. 29:
The plaintiff claims that the defendant was one of the persons in charge of the scaffold involved in this case. . . .
The defendant denies that it violated the Structural Work Act as charged by the plaintiff; . . . that it was one of the persons having charge of the scaffold involved in this case. . . .

Plaintiff contends, as the only issue in this appeal, that the trial court committed prejudicial error in refusing to give these instructions. He argues that under the Structural Work Act defendant can be liable if it had charge of the scaffold, alone or with another, even though it was not in charge of the work where plaintiff was injured.

The goal of the Structural Work Act is to provide workmen in extrahazardous occupations with a safe place to work. The tendency of the courts is to liberally construe the statute with this end in mind. Burgh v. Crane Const. Co., Inc., 102 Ill App2d 188, 193, 243 NE2d 590. In providing the means of achieving this goal, the legislature in section 60 of the Act mandated that “[a] 11 scaffolds, hoists, cranes ... or other mechanical contrivances, erected or constructed by any person, firm or corporation in this State for the use in the erection, repairing ... of any house . . . .” shall be constructed in a safe, suitable and proper manner. In section 69 it is provided that “Any owner, contractor, subcontractor, foreman or other person having charge of the erection, construction, repairing, alteration, removal or painting of any building, . . .” is liable for any injury to person or property caused by any wilful violation of the Act or any wilful failure to comply with any of its provisions. Gannon v. Chicago, M., St. P. & P. Ry. Co., 22 Ill2d 305, 319, 175 NE2d 785. Therefore, in this case, before defendant’s liability to plaintiff is established, it must be shown that it was “in charge of” the work where plaintiff was injured by his fall from the scaffold. Kaminski v. Missionary Sisters of Sacred Heart, 62 Ill App2d 216, 210 NE2d 794.

Plaintiff argues that refusal to give the three instructions deprived him of a jury informed of his theory that more than one person can have charge of a scaffold; and that having charge of a scaffold, in this case, rather than charge of the work, imposed liability on defendant under the Act. Plaintiff complains that requiring him to prove defendant was in charge of the work placed on him a higher burden of proof than the law imposes.

It is now settled that liability under the Structural Work Act cannot rest alone on the erection, control, or ownership of what causes the injury. See Gannon v. Chicago, M., St. P. & P. Ry. Co., supra; Larson v. Commonwealth Edison Co., 33 Ill2d 316, 211 NE2d 247; Reed v. Johnson, 55 Ill App2d 67, 74, 204 NE2d 136. For example, without proof that the person sought to be held liable was in charge of the work, ownership of planks that go to make a scaffold does not determine liability under the Act. Schaffer v. Veach, 61 Ill App2d 168, 209 NE2d 373.

Our study of the cases, particularly those cited by plaintiff leads us to conclude that in determining defendant’s liability, it is irrelevant who had charge of the scaffold, unless this fact is related to having charge of the work. In Vykruta v. Thomas Hoist Co., Inc., 75 Ill App2d 291, 221 NE2d 99, we held that one who furnishes equipment is not put in charge of the construction or of that part of the construction in which the equipment is used. “ [M] ere renting of the equipment and the repositioning and repairing of equipment which has ceased functioning are not enough. In both instances there must be something more; the owner or the supplier must be directly connected with the operation.” 75 Ill App2d 291, at 303.

For these reasons we conclude that the trial court properly refused to give the jury the three instructions tendered by plaintiff. Judgment is affirmed.

Judgment affirmed.

DEMPSEY, P. J. and SCHWARTZ, J., concur.


author: JUSTICE THOMAS J. MORAN

text:
    People of the State of Illinois, Appellee, v. David Meid, Appellant.
    Gen. No. 69-167.
    Second District.
    September 3, 1970.

      Harry J. Busch and Patrick Tuite, of Chicago, for appellant.
    William Ketcham, State’s Attorney of Kane County, of Elgin, and W. Ben Morgan, Assistant State’s Attorney, for appellee.
   JUSTICE THOMAS J. MORAN

delivered the opinion of the court.

In a trial by jury, the defendant was convicted of selling marihuana in violation of section 3 of the Uniform Narcotic Drug Act (Ill Rev Stats 1967, c 38, § 22-3). Specifically, the indictment alleged feat he and a codefendant, Timothy McMillan, sold marihuana to Inspector Joseph Grady of the Illinois Division of Narcotics Control on October 21, 1968, at or near the Meadowdale Shopping Plaza in Carpentersville, Kane County. The codefendant, McMillan, was found guilty in a separate trial, and is not involved here.

This is a nonprobationary offense and the minimum sentence for this crime is ten years. The defendant was sentenced to a minimum of ten years and a maximum of ten years and six months. He is 19 years of age and it appears that this is his first conviction.

One of the defendant’s contentions on appeal is that the evidence was not sufficient to support his conviction. We believe that it was sufficient. Briefly, the evidence of the People was that Inspector Joseph Grady of the Illinois Division of Narcotics Control met with a special employee of that Division, named Roger Stiller, on October 21, 1968. Grady and Stiller drove to an address in East Dundee, Kane County. This was a house where the defendant Meid lived with his parents. Stiller went into the house and came out with the defendant Meid and the co-defendant Timothy McMillan. Thereafter, according to Inspector Grady, there was considerable conversation between him and Meid as to whether Meid would sell him marihuana. The gist of it was that, while Meid expressed willingness to sell to Stiller, he refused to sell directly to Grady. Grady insisted that he wanted to purchase directly from Meid, so that he could satisfy himself about the quality of the marihuana. Finally, Grady, Stiller, McMillan and Meid left Meid’s house and, in two cars, drove to the Meadowdale Shopping Center in Carpenters-ville. Meid mentioned to Grady that he had left a pound of marihuana approximately 300 yards from his house and that he could go over there and transfer it to Stiller, so that Grady could obtain it from Stiller later that evening.

The parties then left the shopping center and, in McMillan’s car, drove to a Tastee-Freeze stand. During this trip, according to Grady, Meid opened the glove compartment of the car and extracted a package of marihuana and some cigarette paper. He rolled a marihuana cigarette and passed it around for the four occupants of the car to smoke.

The group then drove back to the shopping plaza parking lot and further discussion ensued. Finally, McMillan stated that he would take Grady over to the marihuana. According to Grady, the defendant Meid agreed to this procedure. McMillan and Grady then drove, in McMillan’s car, to a field near the Meid residence. McMillan got out of the car, picked up a package from the side of the road, returned to the car and handed the package to Grady. The contents of this package were later tested and determined to be approximately 3 ounces of marihuana. Grady produced $100 in currency and McMillan told him to put the money on the dashboard of the car. McMillan then drove back to the shopping plaza where Meid and Stiller were sitting in Stiller’s car. Meid approached McMillan’s car, and stuck his head in the window. Grady told Meid that there was not enough marihuana, that its quality was not sufficient to warrant the price of $100, and that he was willing to pay only $80. According to Grady, Meid then stated that he wanted $90. Grady remonstrated further and Meid replied, “I’m in a hurry, $90.00 or nothing. Take it or leave it.” Grady then took $10 back from McMillan and rejoined Stiller in the latter’s car.

The defendant Meid testified in his own defense. His version of the evening’s events coincided substantially with Grady’s insofar as the comings and goings were concerned, and he even admitted that they did smoke the marihuana as described by Grady. However, he testified that he steadfastly refused to sell any marihuana to Grady, and that, in fact, he had expressed the suspicion that Grady was a narcotics agent. He conceded that McMillan ultimately agreed to sell to Grady, and that Grady and McMillan did depart for the apparent purpose of concluding a marihuana transaction, but he stated that he warned McMillan to have nothing to do with Grady and denied that he played any part in the transaction himself.

Considering the evidence in the light most favorable to the People, we believe the jury could properly have found that Meid did participate in the sale to Grady. There is the testimony of Grady that Meid referred to a “stash” of marihuana which he had secreted in a field near his home. Later, McMillan, in the presence of Meid, stated that he would take Grady to the place where the marihuana was. According to Grady, Meid expressed agreement with this. McMillan did in fact obtain the package from an area corresponding to the general description earlier given by Meid. Finally, there is the testimony of Grady that Meid participated in a discussion concerning the price of the marihuana and in fact demanded more money than Grady was willing to pay. All of this conduct on the part of Meid, is, we feel, sufficient to make him a principal in the sale.

The defendant argues that venue in Kane County was not proved, but we find that it was. Grady testified that he and Stiller went to the Meid home “in East Dundee, Kane County, Illinois,” and referred to going to the “Meadowdale Shopping Plaza in Carpentersville, Illinois.”

We can and do take judicial notice of the fact that Carpentersville, Illinois is located in Kane County. People v. Taylor, 121 Ill App2d 403, 257 NE2d 524 (1970).

Despite the fact that we feel the evidence was sufficient to support a conviction, we must reverse the case for what we regard as prejudicial error in the admission of evidence. During the direct examination of Inspector Grady, the following occurred:

Q. “Was there any further conversation in the vehicle before you left the Tastee-Ereeze?”
A. “The conversation while we were there was mainly between Mr. Meid and Mr. McMillan. I believe Mr. Stiller took part in it. It was more or less loose conversation about general occurrences in the area.
“At one point Mr. Meid stated to, well, to Mr. McMillan — well, Mr. McMillan, Mr. Stiller and myself, he had been more or less involved in a contest with another individual to see who could get the highest price for one marijuana cigarette.”
MR. CHAPSKI: “If the Court please, I think this is only being used to prejudice my client, this type of testimony.”
MR. KETCHAM: “Your honor, that is not true. We have a right to show these statements as statements against admission. I will be happy to present a case on this.”
THE COURT: “Overruled.”
A. “It involved a contest type arrangement to see who could get the highest price for one cigarette from teenagers, teeny-boppers. Meid said he got $7.50 for a cigarette from one person and the person with whom he was competing managed to get $9.65 from one person. Mr. Meid complained he had lost this little endeavor or little contest.”
Q. “It was a sale of what to a teeny-bopper?”
A. “A ‘joint/ as they are called, which is a marijuana cigarette.”
Q. “The jargon for a marijuana cigarette, in narcotics, is ‘joint?’ ”
A. “Yes.”

This testimony amounted to proof of an offense by the defendant, other than the one for which he was on trial. While proof of other offenses is relevant under certain conditions, e. g., evidence which establishes motive, intent, identity, accident or absence of mistake (The People v. Dewey, 42 Ill2d 148, 157, 246 NE2d 232 (1969); The People v. Cole, 29 Ill2d 501, 503-505, 194 NE2d 269 (1963); The People v. Steele, 22 Ill2d 142, 145-146, 174 NE2d 848 (1961)), none of those conditions are here met. In the instant case, the only purpose of the testimony was to show a propensity on the part of the defendant to commit this kind of crime, and this is specifically the purpose for which evidence of other offenses is held inadmissible. People v. Baxter, 74 Ill App2d 437, 445-449, 221 NE2d 16 (1966); People v. Brown, 83 Ill App2d 457, 463-464, 228 NE2d 505 (1967).

The State says in its brief that these remarks on the part of the defendant, “. . . would confirm the fact that he was capable of having an intent to sell the drug.” We agree that this is precisely what the evidence does imply, and, since it has no other purpose, that is its vice. As the Court stated in The People v. Lehman, 5 Ill2d 337, 342, 125 NE2d 506 (1955):

“. . . Evidence of other crimes is objectionable ‘not because it has no appreciable probative value, but because it has too much.’ (I Wigmore, Evidence, 3rd ed, sec 194.) The law distrusts the inference that because a man has committed other crimes he is more likely to have committed the current crime. And so, as a matter of policy, where the testimony has no value beyond that inference, it is excluded.”

Further, the sale of a narcotic drug is not a specific intent crime, section 3 of the Uniform Narcotic Drug Act (Ill Rev Stats 1967, c 38, § 22-3) and, therefore, intent was not an element which the State was required to prove.

At a later point in Grady’s testimony, the following statement was made:

Q. “Was there any conversation in the car regarding narcotics while you were just driving around in the parking lot?”
A. “We ceased our discussion of all our deal on this evening at this time, and when we got to the northwest . . . pardon me . . . the northeast corner of the building at the Meadow-dale Shopping Plaza, before we turned west, Mr. Meid stated he used to deal in ... I believe he used the term, ‘hard stuff,’ but he no longer did it because he could make as much money on grass and did not take the risks in being arrested, as he did with hard narcotics.”
Q. “What is ‘hard’ narcotics? What is that jargon for?”
A. “It refers to any of the opiates, such as heroin, morphine, demerol.”

Like the testimony about the sale of marihuana to “teenyboppers,” this testimony about defendant’s admission of having dealt in “hard” narcotics has no probative value except to show his propensity to commit this kind of offense. No objection was made to this particular testimony, but we regard its admission as sufficiently grievous to constitute plain error. People v. Brown, supra, 464.

Because of this prejudicial error in the admission of evidence of other offenses by the defendant, the case must be reversed and remanded for a new trial.

Defendant challenges the constitutionality of the ten year minimum sentence provided by the statute, contending that it violates the requirement that sentences be proportionate to the offense. We do not reach this issue, but we do note that the defendant’s argument was rejected by our Supreme Court eight years ago. The People v. Gonzales, 25 Ill2d 235, 184 NE2d 833 (1962).

For the reasons indicated, the cause is reversed and remanded for a new trial.

Reversed and remanded.

DAVIS, P. J. and ABRAHAMSON, J., concur.

SUPPLEMENTAL OPINION ON REHEARING

After rendering the opinion herein, the State filed a petition for rehearing which we allowed. An answering brief, reply thereto and further oral arguments were had.

On rehearing the State urges that the testimony of Grady was admissible for two reasons, 1) it tended to prove a criminal intent which is a material element in every crime notwithstanding the fact that the sale of narcotics is not a “specific intent” crime and 2) it was part of the res gestae.

In a criminal case, evidence which discloses that the defendant committed a crime other than that for which he is being tried is admissible where it tends to prove a fact in issue or where it is used to establish motive, intent, identity, accident or absence of mistake or for any relevant purpose other than to show a propensity to commit a crime. The People v. Dewey, supra, 157.

The State argues that criminal intent is an essential element in all crimes, relying upon Section 4-3 and 4-4 of the Criminal Code (Ill Rev Stats 1967, ch 38, §§ 4-3 and 4-4) which are respectively entitled “Mental State” and “Intent.” The State then equates mental state with intent and concludes that Grady’s testimony was admissible to prove intent.

Committee Comments on these sections, at page 167, state:

“The use of the word ‘intent’ in the 1961 Code is limited to conscious objective or purpose to accomplish a described result, as distinguished from the ‘general intent’ which often has been used to describe also a presumption of culpability which follows from injury or awareness that certain voluntary acts will, or probably will, have wrongful or unlawful results.”

The intent referred to as an exception in the Dewey case is a specific intent, not a general intent. The People v. Smith, 18 Ill2d 547, 552 (1960).

To adopt the State’s theory that intent, unqualified, is an essential element to be proved in every criminal offense would, in effect, result in every offense becoming a specific intent crime. To uphold such a theory would also abolish the need for the rule pertaining to other crimes being offered into evidence.

The defendant, prior to Grady’s disclosure of a previous sale, objected to this type of testimony. The State claimed it had a right to introduce the previous sale on the basis of admissions against interest and the court then overruled the objection.

In this Court, the State has abandoned the admission against interest ground (we assume it did so because such rule would apply only to the crime in question) and argues that anything discussed during the transaction between Grady and the defendant would be admissible as part of the res gestae.

The defendant, quite logically, counters that under this argument, if the defendant had said that he used to be a paid killer for a syndicate, this too would be admissible under thé res gestae rule.

The term res gestae is an amorphous concept that has been applied indiscriminately to a multitude of situations, some containing no element of hearsay at all, others involving true exceptions to the hearsay rule. The People v. Poland, 22 Ill2d 175, 180 (1961).

In the instant case, the testimony of Grady as to his conversation with the defendant was not hearsay and therefore there was no need for applying the res gestae concept. That portion of the conversation which was relevant and of probative value to prove the facts in issue for the crime being tried was admissible. However, that portion of the conversation concerning another sale of narcotics had no relevancy upon any fact in issue nor did it come within any of the exceptions noted in the Dewey case.

For the foregoing reasons we abide by our opinion as originally adopted. The reference in this case to another sale of narcotics merely apprized the jury of the propensity of the defendant to commit the crime being tried.


author: MR. JUSTICE SEIDENFELD

text:
    Carolynn Flagler, Plaintiff-Appellant, v. James D. Wessman and Robert O’Donnell, Defendants-Appellees.
    Gen. No. 70-25.
    Second District.
    November 4, 1970.

      Donovan, Dichtl, Atten, Mountcastle and Roberts, of Wheaton, for appellant.
    Rathje, Woodward, Dyer & Burt, of Wheaton, for appellees.
   MR. JUSTICE SEIDENFELD

delivered the opinion of the court.

Plaintiff appeals from an order dismissing her complaint and action for personal injuries on a motion which pleaded the Statute of Limitations (Ill Rev Stats 1969, c 83, § 15).

The complaint was filed on June 2nd, 1970, and alleged a cause of action arising from a collision in which the car owned by defendant O’Donnell and driven by defendant Wessman struck the rear of the car in which plaintiff was a passenger on March 28th, 1967. Defendant filed a motion to dismiss pursuant to Ill Rev Stats 1969, c 110, § 48, on the ground that the action was not commenced within the time limited by law. Plaintiff’s reply to the motion set up the defense of waiver by estoppel arising from settlement offers and conduct of the adjuster for defendant’s insurance carrier prior to and subsequent to March 28th, 1969.

Plaintiff’s affidavit stated that her father, George Flagler, had been negotiating with a Mr. Hesseln of the St. Paul Insurance Co., Chicago Claims Department; that she spoke to Hesseln also on several occasions, one time being in “the early part of March, 1969,” at which time he offered and she refused $1,500. At Hesseln’s request, she wrote a letter stating what her demand for a greater sum was based upon. The letter was dated March 18th, 1969, and began with the phrase “Upon your verbal commitment for a settlement . . . .” In it she detailed damages to her education in music at the university and loss of a promising musical career and requested $7,500 in settlement. Hesseln called on May 26th, 1969, and asked her if she had made up her mind about accepting $2,000.

The affidavit of George Flagler stated that the insurance company had negotiated principally with him and had paid his daughter’s medical and hospital bills and other incidental items amounting to approximately $1,300; that after his daughter’s letter of March 18th, 1969, Hesseln on March 29th, 1969, called and offered $2,000, which was refused; that Hesseln called him on April 4th, 1969; that he returned the call during April, and Hesseln said he was going on vacation and would call about a settlement when he returned; that on May 26th, Hesseln called and urged the acceptance of the $2,000 offer; and that on May 29th, 1969, Hesseln called again asking if $2,000 would be accepted, stating he would not stand “on this formality” even though the time had elapsed, but would not raise the figure.

Hesseln’s counteraffidavit stated the receipt of an attorney’s lien in May of 1967, but advice in February of 1968 by plaintiff that she was no longer represented by an attorney. It admitted to the various telephone conversations alleged in the plaintiff’s affidavits. He stated he received a medical report on February 24th, 1969, and made an offer of $1,500, plus expenses already paid in early March of 1969. Hesseln further stated that after receipt of plaintiff’s letter, he contacted her on March 19th, and rejected the $7,500 demand, but that on plaintiff’s inquiry he said he might be able to increase his offer “by several hundred dollars,” and, in fact, did offer $2,000 on March 24th or 25th. He admitted the offer of $2,000 in the latter part of May and said he then stated “that the offer was still open because it was made before the Statute of Limitations had expired and because some difficulty had been encountered in making a contact in the interim since the date the offer was made.”

Upon these facts, plaintiff urges that the trial court was in error in dismissing the suit upon the pleadings and should have submitted the issue of waiver by estoppel to plead the statute of limitations, to a jury. She also argues that the reason for strict enforcement of a statute of limitations does not exist where defendant has notice of the claim from the beginning. Plaintiff relies principally upon Suing v. Catton, 118 Ill App2d 468, 254 NE2d 806 (1970) and Kinsey v. Thompson, 44 Ill App2d 304, 194 NE2d 565 (1963) as defining the estoppel issue for a jury when there are acts which go beyond the mere pendency of negotiations.

The fact that an insurer negotiates with a claimant is not conduct amounting to waiver by estoppel unless the negotiations contain statements or conduct which are calculated to lull the claimant into a reasonable belief that his claim will be settled without suit. If there is evidence of such conduct which exceeds mere investigation and negotiation, an issue is made for determination by the trier of the facts; if not, the defense may be disposed of by the court as a matter of law. Dickirson v. Pacific Mut. Life Ins. Co., 319 Ill 311, 318, 150 NE 256 (1926); Suing v. Catton, supra, at page 473; Kinsey v. Thompson, supra, at page 307; Devlin v. Wantroba, 72 Ill App2d 383, 387, 218 NE2d 496 (1966).

Certainly, before March 24th or March 25th, 1969, the admitted acts and statements of defendant’s insurer presented evidence of conduct which could be considered by a jury to be reasonably calculated to lull plaintiff into a belief that her claim would be settled. Essentially, at that time only the amount to be paid was in dispute. While there was no express admission of liability, the facts of the rear end collision injuring the passenger in the forward car were not explained or denied. The company did not controvert plaintiff’s statement in her letter that it was sent pursuant to “your verbal commitment for a settlement.” Payments were made which were in addition to and exceeded the medical expenses defined in Ill Rev Stats 1967, c 51, § 61 as not constituting an admission of liability. While the maintenance of the $2,000 offer after the limitation period had run could not constitute an inducement amounting to a waiver, it was relevant to the question of whether liability was, in fact, an issue.

When the final offer of $2,000 was made and rejected some 3 or 4 days prior to the expiration of the limitation statute, it could not be said that plaintiff was thereafter entitled to assume that any other settlement would be made without suit within the prescribed time. But whether this left a reasonably sufficient time within which suit could be filed, we determine to be a question of fact for the jury. Suing v. Catton, supra, at page 473. See also Anno 24 ALR2d 1413, 1423, 1424; Anno 130 ALR 19; Industrial Indemnity Co. v. Industrial Acc. Commission, 115 Cal App2d 684, 252 P2d 649 (1953); Skipper v. Marlowe Mfg. Co., 242 SC 486, 131 SE2d 524, 526 (1963); Regus v. Schartkoff, 156 Cal App2d 382, 319 P2d 721, 724, 725 (1958). Defendant has relied on Devlin v. Wantroba, 72 Ill App2d 383, 218 NE2d 496, and Reat v. Illinois Cent. R. Co., 47 Ill App2d 267, 197 NE2d 860 (1964). In our opinion, the comparative facts distinguish these cases from the one before us.

We, therefore, reverse and remand with directions to submit to a jury the issue whether defendants have waived the defense of the statute of limitations by the conduct of defendants insurer and are therefore estopped to assert t;he bar of the statute, in accordance with the procedures set forth in Kinsey v. Thompson, 44 Ill App2d 304, supra, 194 NE2d 565, at page 308.

Reversed and remanded with directions.

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

       Defendant has stated in oral argument that $200 was for medical expenses and the balance was for university tuition, room, board and transportation.