author: TRAPP, P. J.

text:
    George E. Mahin, Anthony Scariano, Arthur R. Gottschalk, James C. Kirie, Abner Mikva, Mrs. Charles J. Mott, the Illinois Association for Mental Health, Inc., a Not-For-Profit Corporation, Lily Kirie, d/b/a Kirie’s Restaurant, Albert W. Hachmeister, and the Better Government Association, a Not-For-Profit Corporation, Plaintiffs-Appellants, v. Maude Myers, Director of the Department of Personnel, Harold M. Visotsky, Director of the Department of Mental Health, John E. Cullerton, Director of the Department of Labor, Michael J. Howlett, Auditor of Public Accounts, and Adlai Stevenson, III, Treasurer, of the State of Illinois, Defendants-Appellees, Building and Construction Trades Committee on Prevailing Wages, Intervenor-Appellee.
    Gen. No. 11,082.
    Fourth District.
    May 13, 1969.

      James M. Winning and Giffin, Winning, Lindner, New-kirk & Cohen, of Springfield, Jeremiah Marsh, of Chicago, for appellants.
    Lester Asher and Benjamin L. Jacobson, of Chicago (Asher, Greenfield, Gubbins and Segall, of counsel), for Illinois State Federation of Labor and Congress of Industrial Organizations as Amicus Curiae.
    William G. Clark, Attorney General of the State of Illinois, of Chicago (Richard E. Friedman, First Assistant Attorney General of State of Illinois, John J. O’Toole, Assistant Attorney General, Jerome F. Goldberg, Special Assistant Attorney General, Joan M. Matlaw, Special Assistant Attorney General, of counsel), for appellees.

      William K. Cavanagh, of Springfield, for intervenorappellee.
   TRAPP, P. J.

Plaintiffs, having sued as citizens and taxpayers, appeal from a decree of the Circuit Court which dismissed their complaint to enjoin payment of a wage scale established by defendant, Maude Myers, as Director of the Department of Personnel of the State with particular respect to 514 maintenance employees of the Department of Mental Health of the State. The appeal was transferred to this court from the Supreme Court of Illinois.

The suit was brought under the authority of 111 Rev Stats 1965, c 127, § 63bll2a(2), which states in part:

“On and after July 1, 1957, any citizen may maintain a suit to restrain a disbursing officer from making any payment in contravention of any provisions of this law (Personnel Code), rule, or order thereunder. . . .”

This section is specifically related to the certification of payrolls.

Plaintiffs, George E. Mahin, Anthony Scariano, Arthur H. Gottschalk, James C. Kirie, Abner Mikva and Mrs. Charles J. Mott are individual citizens and taxpayers, while Illinois Association for Mental Health and Better Government Association are Illinois not for profit corporations.

The defendants are Maude Myers, Director of the Department of Personnel, Harold M. Visotsky, Director of the Department of Mental Health, John E. Cullerton, Director of the Department of Labor, Michael J. Howlett, Auditor of Public Accounts, and Adlai E. Stevenson, III, Treasurer of the State of Illinois.

The complaint alleges that defendant, Maude Myers, Director of the Department of Personnel, purporting to act pursuant to 111 Rev Stats 1965, c 127, § 63bl08a(2), established wage rates for maintenance brickmasons, carpenters, electricians, cement finishers, laborers, painters, plasterers, plumbers, roofers, steamfitters, tinsmiths, trades tenders and machinists based upon rates certified to the Department of Personnel by the Department of Labor as “prevailing rates,” and that the Department of Mental Health adopted the said wage rates for 514 maintenance employees.

The complaint alleges that in making the determination of “prevailing rates” of wages, the Department of Labor used the rates found to have been negotiated by divers trade unions with private contractors for construction work in the several localities involved. It is alleged that the wage rates established made no differentiation between maintenance work and construction work.

The complaint alleges that the State pay plan adopted by the Department of Personnel also contains a schedule of “maintenance titles and rates” which specifically establishes minimum and maximum rates for maintenance brickmason, maintenance carpenter, maintenance carpenter foreman, maintenance electrician, maintenance equipment operator, maintenance machinist and maintenance worker, and that such rates are substantially lower than the “prevailing rates” certified by the Department of Labor and adopted by the Department of Mental Health.

Plaintiffs’ contentions are: (1) that the establishment of the same rates of pay for construction work and maintenance work constitutes an arbitrary classification without rational basis in violation of the equal protection and due process clauses of the XIV Amendment of the Constitution of the United States, section 2 of Article II and section 22 of Article IV of the Constitution of Illinois; (2) that dependence upon privately negotiated rates of pay is an improper delegation of discretionary power of the defendant officials in violation of Article III of the Constitution of Illinois; (3) that HI Rev Stats c 127, § 63bl08a(2) is unconstitutional in that it is vague and thus in violation of the due process clause of the XIVth Amendment of the Constitution of the United States and section 2 of Article II of the Constitution of Illinois; and (4) that the maintenance employees are not being paid at the “rates set forth in the pay plan for the class of position in which he is employed” as provided in the fifth sentence of section 63bl08a(2) of c 127, 111 Rev Stats 1965.

We are met first with the contention that plaintiffs have misconceived their remedy by bringing the suit under c 127, § 63bll2a(2) hereinbefore quoted, instead of employing the procedure provided by c 102, pars 11 to 16 inclusive. The Attorney General has not pursued this point on appeal, but the point is emphasized in the brief of amicus curiae, Illinois State Federation of Labor. We think that that portion of the complaint which charges that the employees are not being paid at the rates set forth in the pay plan for the class of positions in which they are employed brings the suit within chapter 127, § 63bl08a(2) in that it is a charge that the pay plan established is not being followed. While the charge of unconstitutionality of the act may not fall within a right to restrain violations under the act, it could, nevertheless, be that a portion of the act followed by the administrative officer would be unconstitutional leaving the conduct of the officer in violation of the remaining valid portion of the law. The purpose of c 102, pars 11 to 16, is to give preliminary notice to the Attorney General and requires leave of court to file a suit in equity, thus creating a means to prevent frivolous actions. Since the trial court indicated that the petition to file in equity would have been allowed if filed and the Attorney General did not pursue the matter, we cannot find that the court was without jurisdiction to pass upon the matters presented by the motion to dismiss.

Plaintiffs’ first contention is that there is a necessary difference between the job of a maintenance employee, entailing inter alia year round employment, and the job of a construction employee of a private contractor which is normally seasonal, and that to declare that rates established for construction employees of private contractors is the “prevailing rate” of wages for full time maintenance employees is arbitrary and therefore in violation of the due process and equal protection provisions of the state and federal constitutions. We think that this contention falls short of constitutional protection under these provisions unless it be shown that the law required the action alleged to be arbitrary, or gave free reign to arbitrary action.

That portion of 111 Rev Stats (1965), c 127, § 63bl08 and § 63bl08a(2) which is here involved, is as follows:

“Sec 63bl08. . . . The rules and amendments thereto shall provide: . . .
“Sec 63bl08a(2). For a pay plan to be prepared by the Director, and submitted to the Commission, for all employees subject to this Act after consultation with operating agency heads and the Director of the Department of Finance. Such pay plan may include provisions for uniformity of starting pay, an increment plan, area differentials, prevailing rates of wages in those classifications in which employers are now paying or may hereafter pay such rates of wage and other provisions. Such pay plan shall become effective only after it has been approved by the Governor after submission of such plan to him by the Commission together with its recommendations thereon. Amendments to the pay plan shall be made in the same manner. Such pay plan shall provide that each employee shall be paid at one of the rates set forth in the pay plan for the class of position in which he is employed. Such pay plan shall provide for a fair and reasonable compensation for services rendered. . . .

The law quoted obviously does not require the adoption of the “prevailing wage” as a part of the pay plan. In order to hold that the law gives reign to arbitrary action it would have to be established that the term “prevailing rates of wages in those classifications in which employers are now paying or may hereafter pay such rates of wage” sets no standard or guide for the administrative official, or that as construed it declares a false or fictitious standard which is therefore arbitrary.

We think that Bradley v. Casey, 415 Ill 576 on 582-584, 114 NE2d 681, as approved in City of Monmouth v. Lorenz, 30 Ill2d 60, 195 NE2d 661 on 665, holds that the term “prevailing wage” is not so vague as to violate the requirements of due process.

Plaintiffs contend that as construed by the administrative officials, the term “prevailing wage” means that the same prevailing wage may be declared for maintenance employees as for construction employees, and that as so construed it legally declares that to be a fact which is not a fact. In support of this position plaintiffs quote from the “Prevailing Wage Law,” 111 Rev Stats (1965), c 48, § 39s-2, in part as follows:

“ ‘Construction’ means all work on public works involving laborers, workmen or mechanics, except maintenance work as herein defined.
“The term ‘maintenance work’ within the meaning of this Act shall be held to be the repair of existing facilities when the size, type or extent of such existing facilities is not thereby changed or increased.”

Plaintiffs quote a similar definition of distinction adopted in the Department of Labor. They must show that there could not be the same prevailing rate of pay for a carpenter, mechanic or other such employee engaged in maintenance work as for a carpenter, mechanic or other such employee engaged in construction work. Plaintiffs contend that City of Monmouth v. Lorenz, 30 Ill2d 60, on 66-67, 195 NE2d 661, on 664-5, requires as a constitutional matter that there must be a differentiation between maintenance work by state employees and construction work by private employees. We do not so construe City of Monmouth v. Lorenz. The case actually involved municipal employees employed upon a year-round basis, with various economic benefits, and the 1957 and 1961 amendments required the municipality to pay the year round employees engaged in construction the same rates as those prevailing between private contractors and their employees on construction. The fatal defect in the act was the requirement that the public body establish the same rate of pay for what the court found to be recognizably different kinds of employment. Construction work was involved as to both types of employees. The difference can readily be seen if one seeks to make City of Monmouth v. Lorenz authority for the proposition that the City of Monmouth was not authorized to pay year round employees at the same rate as that prevailing among private contractors in construction. Of course, City of Monmouth v. Lorenz did not so hold. Likewise, Bradley v. Casey, 415 Ill 576, on 586, 114 NE2d 681, held that “any provisions of the act which purport to require public bodies to pay prevailing per diem wages to employees directly employed by such public bodies are invalid.” (Emphasis supplied.)

Finally, plaintiffs contend that there is no basis in fact for declaring that the prevailing rate of wages for maintenance employees is the same as the prevailing rate of wages for the same skills or crafts in private construction work. The complaint alleges that the prevailing wage rates established by the Director of Personnel for maintenance work exceed the rates shown by the 1966 U. S. Occupational Wage Survey for the Chicago Metropolitan area for comparable work by at least 20%. This differential, especially in view of the difficulty of establishing exact comparables is not sufficient to authorize a court to interfere with legislative or administrative discretion.

Plaintiffs’ second contention is that dependence upon privately negotiated rates of pay is an improper delegation of discretionary power of the defendant officials in violation of Article III of the Constitution of Illinois. In Bradley v. Casey, 415 Ill 576 on 585, 114 NE2d 681, the court said of an amendment to the prevailing wage law:

“We believe, however, that there is merit in petitioner’s contention that the 1951 amendment to section 2, defining wages under a collective bargaining agreement as the prevailing rate of wages in a given locality, is invalid for the reason that it delegates a discretionary power to private parties and that it tends to be too restrictive and discriminatory in defining that to be a fact which is not a fact. Upon close analysis it can be seen that this amendment permits the fixing of the standard rather than finding or ascertaining an existing fact. This amendment then, being vulnerable to the foregoing criticism, is clearly unconstitutional.” (First emphasis supplied.)

Section 63bl08a(2), Ill Rev Stats 1965, does not require the adoption of the privately negotiated rate as the “prevailing rate” established by the Department of Personnel. Neither does the law prevent the Director of Labor or Director of Personnel from finding that the privately negotiated construction workers’ rate is in fact the prevailing rate for maintenance workers with similar skills. The letter of the Assistant Director of the Department of Labor, relied upon by plaintiffs, does indeed infer that the copies of current wage rates of all building trades local unions on file with the Department of Labor are the basis of the present determination. However, the same letter states that the Department of Labor staff makes further inquiry with the employer contractors in the building industry with reference to the current wages as certified to the Department of Labor, after which the rates are accepted as a correct certification of current wages, arrived at through the process of collective bargaining effective in the building industry. The fact that the maintenance rates of pay for the same skills are the same as the construction rates does not mean that the maintenance rates are not, in fact, the prevailing rates for maintenance. We do not find that the allegations of the complaint establish that the Director of Personnel, or the Director of Labor, failed to make his own determination of prevailing rates of pay for maintenance workers.

The third contention of plaintiffs that the term “prevailing rate of wages” is unconstitutionally vague has been answered by Bradley v. Casey, 415 Ill 576 on 582-584, 114 NE2d 681.

The fourth contention is that the maintenance employees in question are not being paid at the “rates set forth in the pay plan for the class of position in which he is employed,” as provided in section 63bl08a (2), c 127, Ill Rev Stats 1965. The basis of this contention appears to be that the Department of Personnel has established two plans, the one attached to the complaint as Exhibit A being entitled “Department of Mental Health, Maintenance Rates In Effect” which sets out the same rates as those used in private construction, and the second entitled, “Maintenance Titles and Rates Currently included in Pay Plan,” which apparently sets forth monthly minimum and maximum salaries for certain maintenance titles such as bricklayer, carpenter, electrician, equipment operator, machinist and worker.

The statute heretofore quoted (Ill Rev Stats 1965, § 63bl08a(2)) allows a pay plan which includes several alternatives, including the prevailing rate of wages which employers are now paying. It also provides that an employee shall be paid at one of the rates in the pay plan for the class of position in which he is employed. The complaint alleges that there are two schedules entitled maintenance employees. It alleges that the prevailing wage rate which ignores any distinction between construction and maintenance represents a departure by the Department of Personnel from an earlier interpretation which employed the schedule showing a monthly minimum and maximum for various maintenance employees. These allegations do not set forth facts showing that the adoption of the pay schedule involving prevailing wage rates without reference to construction or maintenance work constitutes an act in contravention of the pay plan.

We cannot say, as a matter of law, that the prevailing rate of wages for maintenance work is not the same as the prevailing rate of wages for the same skills in construction work.

The decree of the Circuit Court is affirmed.

Affirmed.

SMITH and CRAVEN, JJ., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE MORAN

license: Public Domain

text:
    Peggy Ann Reeves, a Minor, by Patricia Reeves, Her Mother and Next Friend, Plaintiff-Appellant, v. Walter and Dorothy Eckles, Defendants-Appellees.
    Gen. No. 68-145.
    Second District.
    May 15, 1969.
    Rehearing denied and opinion modified June 25, 1969.

      Lane, Falasz & Pollman, and Willard J. Stepek, of Chicago, for appellant.
    Leo Sullivan, III, Snyder, Clarke, Dalziel, Holmquist & Johnson, of Waukegan, for appellees.
   PRESIDING JUSTICE MORAN

delivered the opinion of the court.

On August 24, 1963, the minor plaintiff, Peggy Ann Reeves, aged two, was bitten on the face by the dog of the defendants. This suit was filed alleging in Count I, a common-law negligence action; in Count II, a wilful and wanton misconduct action and in Count III, an action seeking recovery for the mother’s medical expenses based upon a common-law negligence theory.

Initially, the trial court dismissed the complaint on the grounds that the statute (Ill Rev Stats 1963, c 8, § 12d) had abrogated the common-law cause of action for recovery in a dog bite case. The case was then appealed to this court and in Reeves v. Eckles, 77 Ill App2d 408, 222 NE2d 530 (1966) we reversed, holding that the statute merely supplied an alternative remedy and that both the statutory action and the common law action existed. The case was remanded for trial. Count I and III were submitted for deliberation and the jury rendered a verdict on Count I in the amount of $1,800 and a not guilty verdict on Count III.

Only the minor, Peggy Ann Reeves, referred to herein as plaintiff, appeals claiming prejudicial error in that the defendants gave an inaccurate answer to an interrogatory and failed to answer a supplementary interrogatory; that the jury’s verdict was a compromise and that the trial court failed to adequately protect her interests as a minor when it denied her motion for a new trial on damages only.

Prior to trial, plaintiff served interrogatories inquiring of “liability coverage” and “other applicable insurance covering liability for damages or injuries.” The defendants answered these interrogatories stating the amount of the liability coverage and then answering “medical payments: not applicable.”

On July 21, 1965, plaintiff filed additional interrogatories, this time making specific inquiry as to medical payment coverage. The case went to trial on June 22, 1968, almost three years later and the supplemental interrogatories had not been answered nor had there been any effort on the part of plaintiff to require an answer.

The plaintiff now argues that the failure of defendants to answer the supplemental interrogatory made it necessary to try the actions of her mother and herself together. Because of this, and due to the fact that the mother was guilty of contributory negligence, as the jury subsequently found, it prejudiced the plaintiff in the eyes of the jury and thereby reduced her recovery.

The plaintiff’s conclusion can only be based on speculation. The jury verdict was five times the amount of out-of-pocket expense and there is no basis in the record from which we can conclude that the jury was prejudiced by combining the actions of mother and daughter or that their verdict was a compromise. Indeed, the actions of mother and daughter were combined by the plaintiff in the same cause of action and plaintiff made no subsequent motion to separate them, nor did plaintiff make any effort to require the answers to supplemental interrogatories, despite the fact that they went unanswered for three years and despite the fact that plaintiff had numerous remedies to enforce the requirement of an answer. The mother could even have waived her right to recover her out-of-pocket expense and permitted her daughter to recover this amount, McHugh v. Hirsch Clothing Co., Inc., 308 Ill App 272, 275, 31 NE2d 326 (1941), but even that was not done.

In a real sense if there was a difficulty, it was created by the plaintiff when mother and daughter were joined upon the filing of the case. This could have been remedied at any time before trial but no such steps were taken. Having now tried the case before the jury, the plaintiff is not entitled to change her theory in this court. Lewy v. Standard Plunger Elevator Co., 296 Ill 295, 304, 129 NE 775 (1921); Russell v. Rici, 67 Ill App 2d 98, 106-107, 213 NE2d 566 (1966).

The plaintiff directs our attention to Muscarello v. Peterson, 20 Ill2d 548, 170 NE2d 564 (1960), for the proposition that her rights as a minor were not adequately protected in this case. We do not understand that the Supreme Court announced any new rule of law in that case. Indeed, the Court simply reiterated a long standing and beneficial rule when it said at page 555, “The court has a duty to see that the rights of an infant are adequately protected, and is bound to notice substantial irregularities even though objections are not properly presented on its behalf.” In that case the defendant insurer had deliberately supplied plaintiff’s counsel with a medical report from which was deleted one paragraph dealing with causal connection. In addition, the trial court limited the cross-examination of defendant’s medical witness. The combination of these errors led the Supreme Court to conclude that there were “substantial irregularities” and that the interests of the minor had not been adequately protected. In that case there was a deliberate act on the part of the insurer, coupled with an error by the trial judge in limiting cross-examination. There was no joinder of actions by the parent and minor as found in the instant case. The case certainly does not stand for the proposition that any minor can have a new trial in any ease just because of minority where the minor’s parents are dissatisfied with the results of the first trial. In the case at bar there was no deliberate act on the part of the insurer and if the plaintiff had wanted further information she had three years to obtain it. The only act complained of was the coupling of the cause of action of the mother with her cause of action and, as we have already indicated, this was done by the plaintiff herself and not by the defendants or by the trial court.

The trial court did not find and we cannot conclude from the record before us that the jury’s verdict was a compromise. On the contrary, the jury appears to have understood the law and the instructions and they rendered a verdict for the plaintiff five times the out-of-pocket expenses. The sum of money which will compensate an injured party entitled to recover is a matter which is peculiarly one for the jury and this court should not interfere unless the damages are palpably inadequate. Lazarro v. Garrett, 100 Ill App2d 452, 456, 242 NE2d 59 (1968); Johanneson v. Ring, 82 Ill App2d 340, 346, 226 NE2d 291 (1967). The jury had all of the evidence before it and we are unable to say that their verdict is so inadequate as to require a reversal.

In this latter connection, plaintiff’s counsel advises us in his brief that the defendants offered to settle the matter for a substantially greater sum. Obviously, that is not in the record before us and we are only favored with counsel’s gratuitous remarks. The fact that counsel made an offer simply indicates that they were willing to settle the case. It did not go to the jury and is not a proper factor to be considered, either by the jury or by us in determining whether or not the jury’s verdict was correct. Therefore, we do not consider that information and counsel should refrain from straying from the record.

Finally, plaintiff argues that defense counsel made improper statements which prejudiced and deprived her of a fair trial. In final argument, defendants’ counsel said among other things, “They are trying to reach into my client’s pocket. . . . They want money. . . .” Plaintiff concludes from this argument, to which an objection was sustained, that the jury was thereby prejudiced because they were led to believe that the money was coming from the defendants and that the defendants were not insured. The trial court sustained an objection to the argument and instructed the jury to disregard it. In addition, it is only by exercising the most liberal speculation that one can reach the plaintiff’s conclusion. An almost identical argument was made in the case of Piechalak v. Liberty Trucking Co., 58 Ill App2d 289, 299, 208 NE2d 379 (1965), and rejected by the court, holding that the comments were not reasonably subject to the interpretation now sought by plaintiff. We reach the same conclusion. The remarks in this case are not reasonably subject to the plaintiff’s interpretation and in any event the trial court instructed the jury to disregard them.

Taking the case as a whole, we find that there were no “substantial irregularities” or, indeed, any errors in the trial of the above case. The judgment is therefor affirmed.

Judgment affirmed.

DAVIS and SEIDENFELD, JJ., concur.


author: PKESIDING JUSTICE MOEAN

text:
    Frank E. Johnson, Plaintiff-Appellee, v. Henry A. Fischer, et al., and Prudential Insurance Company of America, Defendants-Appellants.
    Gen. No. 68-150.
    Second District.
    May 15, 1969.
    William Elden, of Chicago, for appellants.
    Norman H. Racine, of Sycamore, for appellee.
   PKESIDING JUSTICE MOEAN

delivered the opinion of the court.

One of the defendants, William Elden, appeals from an order of the trial court which denied his post-trial motion tiff’s invoice dated July 1, 1965, in the sum of $1,940.49 against him in favor of the plaintiff, Frank E. Johnson.

Two questions are presented. The first question is, may an owner of a farm be liable as an undisclosed principal for improvements made to the farm but ordered by a tenant, when the recorder’s office discloses him to be the owner and the contractor eventually becomes cognizant that he has been negotiating with the tenant? The second query is, may an agent and his undisclosed principal be j oined in the same action ?

One Hove, an employee of the plaintiff who is a general contractor, testified that in February of 1965, he received a telephone call from the defendant-tenant, Jennie Long, who was living in the main dwelling on the farm. Thereafter, he called upon her at the farm and, during this visit, she requested that repairs be done to the tenant house and further stated that there would be other jobs that had to be done on the farm. As the work progressed, the plaintiff’s employees did work on the main house, the tenant house and the barn.

By the first of June of 1965, all of the work was completed. In the fall of 1965, since the plaintiff remained unpaid, Hove contacted Jennie Long and was told that insurance proceeds would pay the bill. No dissatisfaction was expressed with the work and, in December of 1965, while preparing a mechanic’s lien, the plaintiff discovered that title to the premises in question was in the name of the defendant and Elizabeth Elden.

The plaintiff testified that in the spring of 1966 he called the office of the defendant, inquired about payment of the bill, and the defendant told him that he was waiting for an insurance company to pay a claim before paying the plaintiff’s bill.

The defendant, called adversely, testified that Jennie Long was a tenant of one of his buildings; that between November of 1964 and September of 1966 he visited the farm either once a month or every second month and saw to the physical existence of things; that he had a policy of insurance with Addison’s Farmers Mutual Insurance Company from the time that he owned the farm; and that he had filed a verified amended complaint on October 11, 1966, on his own behalf, against that company for damage to the farm improvements in which he alleged that the company’s agent “told the plaintiff to have it repaired and send him the bill” and that “in reliance on this, plaintiff retained a contractor to make the necessary repairs.” He further testified that he had no knowledge of any work having been done on the farm; that he had a manager there whose duty it was to take care of the farm and he did not recall the manager telling him that there had been work done on the farm. Defendant identified a letter from the Addison Farmers Mutual Insurance Company returning to him the plaintiff’s invoice dated July 1, 1965, in the sum of $1,940.49 and denying coverage under its storm damage policy. A letter, from the defendant to the Addison Farmers Mutual Insurance Company, dated February 9, 1966 stated: “We only undertook this work after we were instructed so by Mr. Dickson.” (Mr. Dickson being an agent for Addison Farmers Mutual Insurance Company.)

The defendant, thereafter testifying on his own behalf, stated that in November of 1964 he purchased the farm in question and subsequently leased the house to Jennie Long on a month-to-month basis; that in December of 1965 or early 1966 he received a letter from the plaintiff’s attorney concerning a sum due to the plaintiff; that he investigated the claim and was informed that the work was necessary because of storm damage to the premises and that the agent for the insurance company had authorized the work; that subsequently, the company denied coverage and he filed a complaint against the company, which was dismissed; that this dismissal had been affirmed by the Appellate Court and, at that time, was pending in the Supreme Court of the State of Illinois. He denied that Jennie Long was his agent and testified that the only relationship between himself and Mrs. Long was that of landlord and tenant. There was a manager on the farm who was the only one who had any authority to make any contracts in connection with the farm.

The cause came on for trial upon an amended complaint setting forth three counts. Count I sought to foreclose a mechanic’s lien, Count II sought to recover under an oral contract with the defendant, Jennie Long, and Count III alleged an oral contract with Jennie Long as agent of the defendant, William Elden, and further alleged that the defendant, William Elden, promised to pay but has not paid the sum. The complaint prayed for judgment in the alternative against Jennie Long or William Elden.

Upon a hearing before the trial judge, without a jury, the court found in favor of the defendants as to Count I but found that the plaintiff was entitled to recover on Counts II and III against Jennie Long and William Elden. However, the plaintiff’s attorney elected to take his remedy against the defendant, William Elden, under Count III.

The trial court found that the defendant ratified the act of Jennie Long as his agent. In giving his opinion, the trial judge stated that he found it difficult to understand how the defendant could visit the farm every month or two and not see the improvements such as the “new shingles, new storm doors, front and back doors, new shingled roof.” The court also considered the statement made by the defendant that he would pay the bill when the insurance proceeds were received and the defendant’s subsequent filing of a verified complaint in which he stated that in reliance upon an agent of his insurance company he retained a contractor to perform the work in question.

The trial judge who sees the witnesses and hears the evidence is in a much superior position to find the truth than is a reviewing court which has before it only the printed page. The weight to be given the testimony and the credibility of the witnesses are matters which are within the trial judge’s province. Where a trial judge has heard witnesses give oral testimony, his findings will not be disturbed unless they are plainly erroneous and contrary to the manifest weight of the evidence. Village of Glencoe v. Jackson, 102 Ill App2d 65, 243 NE2d 865 (1968). The court’s findings herein are supported by the record and will not be disturbed.

The defendant relies upon the case of Wing v. Lederer, 77 Ill App2d 413, 222 NE2d 535 (1966) as controlling in this case. However, in that case there was no communication or contact between the plaintiff and the alleged undisclosed principal as in the instant case. Further, in that case there was an absence of any showing that the undisclosed principal knew the work was in progress. The facts in the Wing case are inapposite to the facts in the case at bar and, therefore, the case is not controlling.

The defendants’ second contention is that an agent and his undisclosed principal may not be tried jointly but must be tried in separate actions. We do not agree with this conclusion. While there can be no joint liability between an agent and his undisclosed principal, the plaintiff may sue both as defendants. 3 Am Jur2d, Agency, §342; 118 ALR 701. However, in such cases, the plaintiff must elect which one he shall take judgment against. In the case of Capitol Hardware Mfg. Co. v. Naponiello, 345 Ill App 272, 275, 102 NE2d 685 (1951), judgment was rendered against both the agent and the undisclosed principal. The court remanded the case to the trial court with “directions to require the plaintiff to elect whether to take judgment against” the agent or the undisclosed principal.

Finally, defendant argues that a person may not be the tenant and the agent of a landlord. No authority is cited nor can this court find any precedent for such a proposition of law. It can imagine many situations and circumstances under which a landlord may make a tenant his agent for either limited or general purposes.

Therefore, under the facts of this case, the answer to each of the questions presented by this appeal must be in the affirmative. Consequently, the judgment of the trial court is affirmed.

Judgment affirmed.

DAVIS and SEIDENFELD, JJ., concur.


author: JUSTICE SEIDENFELD.

text:
    People of the State of Illinois, Plaintiff-Appellee, v. George Franks, Defendant-Appellant.
    Gen. No. 68-146. (Abstract of Decision.)
    Second District.
    May 16, 1969.

      Marco and Mannina, of Downers Grove, for appellant; William V. Hopf, State’s Attorney of DuPage County, of Wheaton and David E. Bruun, Assistant State’s Attorney, for appellee.
   Opinion by

JUSTICE SEIDENFELD.

Not to be published in full.


author: ALLOY, J.

text:
    Patsy Carstens, Plaintiff-Appellant, v. Gerard Allen Carstens, Defendant-Appellee.
    Gen. No. 68-99.
    Third District.
    May 19, 1969.

      William H. Taube, of Kankakee, for appellant.
    Edward G. Vogt, of Kankakee, for appellee.
   ALLOY, J.

This is an appeal from an order of the Circuit Court of Kankakee County changing the principal custody of a minor child from plaintiff, Patsy Carstens, to defendant, Gerard Allen Carstens. Plaintiff appeals to this Court asserting that the decision of the court was contrary to the manifest weight of the evidence and that the order entered is erroneous as a matter of law.

An original decree of divorce was entered in this cause on February 19, 1965, granting plaintiff a divorce on the grounds of extreme and repeated cruelty. At that time, plaintiff was awarded custody of the minor child of the parties, a girl named Stefani. After the entry of the decree for divorce, plaintiff and the minor child lived with plaintiff’s mother until plaintiff sought employment in Rockford, Illinois. Plaintiff then asserted she was unable to find a suitable babysitter and, since she did not want her daughter raised by plaintiff’s mother, she offered defendant physical custody of the minor in the early part of 1966. There was some evidence that she even suggested a legal change in custody thereafter.

The trial court, in considering this case, indicated in its memorandum of opinion, its understanding of the principle that, when a change of custody is requested, the original decree is deemed to be res adjudicata as to all facts which existed at the time the decree was entered, when custody was vested in the mother. He also observed that it is usual that custody of a child such as the daughter would normally be awarded to the mother. The court also specified particularly that to deny custody to the mother or to change such custody, a positive showing should be made that such change would be for the best interest of the child. The trial court correctly considered the most important factor to be the best interest of the child.

It was observed by the trial court that the plaintiff voluntarily ■ and contrary to the decree of court placed the child physically in the hands of defendant when it was no longer convenient or expedient for her to take care of the daughter herself. This situation continued for more than two years, and it continued for 20 months after plaintiff had remarried and for nearly one year after she ceased working. There was some indication by the court that it was also giving consideration to the fact that over the period of time when plaintiff did have physical custody of the daughter, she may have overindulged the child.

The record also disclosed that defendant had remarried to a lady who had demonstrated her willingness to care for her husband’s child along with her own children (three), which children had been adopted by defendant, and that they also have a child born to the present wife of defendant and defendant. The children range in age from seven years to 10 months. All the children are treated equally as well. Defendant is apparently regularly employed, while the husband of plaintiff seems to have encountered financial difficulties, and plaintiff and her husband have moved at least twice in two years seeking to better their economic situation. The trial court found that the child, Stefani, appeared to be healthy and well adjusted in the home of defendant.

The trial court concluded that the welfare of the child would be best served by placing the child in custody of defendant for 10 months of each year and providing for the child to be with the mother for 2 months during the summer of each year, with alternate rights to the custody of the child on Christmas, Thanksgiving and Easter Holidays in alternate years.

Normally, in matters involving custody of infant children, the determination of a trial judge is not to be disturbed unless it appears that a manifest injustice has been done (Hahn v. Hahn, 69 Ill App2d 302, 305, 216 NE2d 229) and the trial court’s determination should not be reversed unless it is clearly against the manifest weight of the evidence (Wade v. Wade, 345 Ill App 170, 183, 102 NE2d 356). Relinquishment of custody on a voluntary basis together with a remarriage is normally a sufficient change of circumstance to warrant an examination into the custody question (Stingley v. Wesch, 77 Ill App2d 472, 477, 222 NE2d 505). In all such cases, however, the paramount rule is to determine what is in the best interest of the child (Nye v. Nye, 411 Ill 408, 105 NE2d 300).

It is true that in the present case we do not have a showing of unfitness on the part of the plaintiff, and appellee makes no such contention. However, the plaintiff, who had custody, left the child with the defendant for a period of years. The child has been happy and adjusted in the new environment. On the basis of the record, we do not believe it is appropriate for this Court to conclude that the action of the trial court in awarding custody to the defendant (as being in the best interest of the child, Stefani), was contrary to law or against the manifest weight of the evidence (Mabbatt v. Mabbatt, 78 Ill App2d 455, 223 NE2d 191; Jenkins v. Jenkins, 81 Ill App2d 67, 71, 225 NE2d 698). While the court should exercise restraint in depriving a mother of custody of a child, we cannot say arbitrarily that there should be no such change unless there is a showing of unfitness on the part of the mother. Under such circumstances, we believe that we would not be justified in setting aside the order of the Circuit Court modifying the decree relating to custody as herein stated.

The order of the Circuit Court of Kankakee County will, therefore, be affirmed.

Affirmed.

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


author: JUSTICE ABRAHAMSON.

text:
    People of the State of Illinois, Plaintiff-Appellant, v. Frank Lio, Defendant-Appellee.
    Gen. No. 68-178. (Abstract of Decision.)
    Second District.
    May 20, 1969.
    William V. Hopf, State’s Attorney of Du Page County, of Wheaton, and Helen C. Kinney, Assistant State’s Attorney, for appellant; Desort and Krantz, of Chicago, for appellee.
   Opinion by

JUSTICE ABRAHAMSON.

Not to be published in full.


author: STOUDEE, P. J.

text:
    C. Iber & Sons, Inc., an Illinois Corporation, Plaintiff-Appellee, v. George S. Grimmett, d/b/a George S. Grimmett & Company, Defendant-Appellant.
    Gen. No. 68-88.
    Third District.
    May 21, 1969.

      Horsley, Vespa and Lott, of Springfield, for appellant.
    Davis, Morgan & Witherell, of Peoria, for appellee.
   STOUDEE, P. J.

Plaintiff-Appellee, C. Iber & Sons, Inc., commenced this action in the Circuit Court of Peoria County seeking to recover damages for breach of contract from Defendant-Appellant, George S. Grimmett, d/b/a Geo. S. Grimmett & Co. The court, sitting without a jury, entered judgment in favor of plaintiff for $2,200 from which judgment defendant has appealed.

The principal issue raised on this appeal is defendant’s contention that the evidence is insufficient to warrant the conclusion that a contract existed between the parties.

Plaintiff, Iber, is a general contractor in Peoria, Illinois. Defendant, Grimmett, is a tile and acoustical contractor in Springfield, Illinois. Prior to September, 1963, construction of Shamel Manor in Normal, Illinois, was proposed. Plans were prepared by an architect and submitted to general contractors, including Iber, for bids. Iber, in turn, invited Grimmett to bid on certain aspects of the proposed construction. Grimmett submitted a written bid dated September 26, 1963, to Iber. The bid was divided into three general areas, the first relating to resilient flooring, the second to ceramic tile and the third, to acoustical treatment. An amount was specified for each area, the amount for the resilient tile, the item in controversy, being $8,740. Iber was awarded the general contract on November 1, 1963, and the building was completed in the fall of 1964.

Between September 26, 1963, and January 3,1964, several telephone conversations took place between employees of the parties. Tousley, the purchasing agent of plaintiff, testified concerning two of these telephone calls, being apparently the only ones dealing with the present controversy. According to his testimony he talked with Joe Busch, an estimator for Grimmett, shortly after Grimmett’s bid was received in the latter part of September, 1963. According to Tousley he told Busch that Grimmett was the low bidder on the resilient flooring, (other portions of the bid were not mentioned), that the architect had requested a bid on alternate 4 which was not included in Grimmett’s bid and asked that the plans be picked up and a bid on alternate 4 be submitted. Alternate 4 was an optional addition to the resilient floor tile work.

According to Tousley he again called Busch on January 3, 1964. His testimony concerning this conversation is as follows: “Q. And on January 3, 1964 you indicated you had a conversation with Mr. Busch, and what if anything did you say and what if anything did he say? A. Well, at that time I asked him if he had a quotation on alternate 4, which he said he did, and he gave me the price of $1,855.00, I believe. Yes. And then I said ok that we would take his base bid the quotation of $8,740.-00 for the resilient flooring, plus alternate #4 of the $1,855.00 and that we would accept that and that we would send him a purchase order for that amount to do the resilient flooring. Q. And, in fact did you send him the purchase order in connection with this? A. I did.” Busch, called as a witness by defendant, testified that he recalled that he had received a telephone call from Tousley about the 3rd of January, that he made no agreement with Tousley concerning the resilient floor tile and that he had no recollection of making any quotation on alternate 4 on that occasion.

Iber sent its purchase order to Grimmett dated January 3, 1964, covering only the resilient floor for a total price of $10,595. At the top of the purchase order appeared the following statement, “Enter the following order in accordance with the terms and conditions of your proposal over long distance on January 3, 1964 by Joe Busch.” Attached to the purchase order was a card which requested that it be signed and returned to Iber. The card contained the following statement, “We acknowledge receipt of your purchase order number 7483-477 and accept same. Dated January 3, 1964.” Grimmett received the January 3rd purchase order and enclosed card but did not sign and return the card.

By letter dated January 21, 1964, Iber indicated that it had not received an FHA form included with the January 3rd purchase order and requested that Grimmett sign and return the same. Such form was not executed and returned.

By Ms letter dated January 25, 1964, Grimmett returned the January 3rd purchase order indicating that he would not accept such order. The letter concluded with “If you will revise your purchase order to include all items as set forth in our quotation dated September 26,

1963, we will be glad to execute same.” Grimmett testified that he rejected the purchase order for the resilient floor tile only because the amount specified therefor was related to the entire job whereby he could organize and control the different trades required. On January 29,

1964, Iber wrote Grimmett enclosing the returned January 3 purchase order. The letter stated “We are returning our purchase order without any changes because it confirms our acceptance of your proposal on January 3, 1964. Please acknowledge receipt of this order by signing and returning the attached card by return mail.” The letter concluded with “If we do not receive a written acceptance of our purchase order number 7483-447 dated January 3,1964, by Wednesday, February 5,1964 we will proceed to award the work to another company and will hold your firm accountable for any extra cost incurred by us.”

Grimmett did not respond to the foregoing letter and late in February 1964, Iber awarded the resilient floor tile work to Floorkrafters of Peoria, Illinois, who submitted a bid therefor for $13,000. Floorkrafters performed the work and were paid $10,620, the difference being represented by reductions requested by the architect. Plaintiff sought damages predicated on the difference between the Floorkrafters5 bid and Grimmett’s bid.

In arguing that the trial court erred in holding a contract existed between the parties, defendant contends the evidence fails to support the conclusion that there was any meeting of minds between the parties, i. e., no offer and acceptance.

The general rule is that the party seeking to enforce an agreement has the burden of establishing the existence of the agreement. Continental Illinois National Bank & Trust Co. of Chicago v. National Casket Co., Inc., 27 Ill App2d 447, 169 NE2d 853. It is also well settled that before any agreement can exist there must be an offer and acceptance thereof. A purported acceptance of an offer which does not substantially accept the offer in accord with its terms is a counteroffer requiring in its turn acceptance in order to constitute an agreement. Brook v. Oberlander, 49 Ill App2d 312, 199 NE2d 613. In the Brook case the defendant subcontractor made a written bid for certain proposed electrical work to the plaintiff general contractor which bid was included as a basis for the acceptance of the general contractor’s bid for the job. At a subsequent meeting the general contractor delivered certain documents to the subcontractor which documents required that they be executed by both parties before any binding contract should exist. Although the subcontractor orally stated at the meeting that he would commence the work next week he nevertheless failed to do so and did not execute the required documents. The court, in holding for the defendant subcontractor, concluded that there had been no unconditional acceptance of the bid by the general contractor and likewise no acceptance by the subcontractor of the general contractor’s counteroffer. Although the Brook’s case is not completely analogous on its facts, it is in some respects similar to the instant case involving as it does the failure of the general contractor to accept the subcontractor’s bid as proposed.

In the instant case, it is undisputed that Iber did not accept Grimmett’s bid of September 26th and, in fact, Iber makes no claim that the agreement which it claims to exist was based on such acceptance. It would also appear that if the purchase order of January 3 were considered without regard to the telephone conversation which preceded it, such purchase order is in legal effect, a counteroffer by Iber requiring acceptance by Grimmett, which acceptance was not forthcoming.

In insisting that an oral contract was made on January 3rd, plaintiff appears to us to be relying on Busch’s lack of any particular recollection of the telephone conversation, thus justifying any inference it desires from Tousley’s account of such conversation. We have heretofore quoted the only testimony which Tousley gave with respect to the telephone conversation. Considering this testimony as true and viewing it most favorably to plaintiff, we find nothing in such testimony from which it can be reasonably inferred that Busch, in behalf of defendant, offered to install the resilient floor tile only or as a separate item of the September 26th bid. As noted above the only statement or conversation attributed to Busch by Tousley was a quotation for alternate 4. At best, Busch’s statement may be regarded as an amendment to the resilient tile item and offers no basis for inferring that an offer was made to install the resilient floor tiling only. Whatever may be inferred from Tousley’s account of his own part of the conversation his testimony fails to indicate that whatever was intended was accepted by Busch.

This brings us to the purchase order dated the same day as the telephone conversation. Plaintiff seeks to characterize the purchase order as a “memorial” of the telephone conversation on the apparent assumption that such characterization may thus avoid its conditional nature. Although such purchase order may be said to confirm the fact of a prior telephone conversation, it may not be inferred from such purchase order that an offer was made and accepted on the telephone. On the contrary, the only reasonable inference therefrom is that there was no prior offer and acceptance. While it may be true that acceptance of an offer must be manifested or communicated to the offeror, this does not mean that an “acceptance” must be “accepted” and in fact plaintiff does not claim the purchase order to be an acceptance of any offer of defendant, rather plaintiff insists that the failure to accept the purchase order amounts to a repudiation of the contract, relying on Chicago Coliseum Club v. Dempsey, 265 Ill App 542. We find no merit to such contention since a contract must exist before it can be repudiated. The letter from Grimmett declining to accept the purchase order is not indicative that any contract theretofore existed and in our opinion constituted a rejection of a counteroffer as made by the purchase order.

That no meeting of the minds took place between the parties, i. e., an offer of one was accepted by the other, is further demonstrated by the allegations of plaintiff in its complaint regarding the telephone conversation relied upon. Paragraph eight, relating to such conversation of January 3rd states the following: “. . . the defendant’s bid for the flooring . . . was again acknowledged by the defendant, and accepted by the plaintiff in Peoria County, Illinois. During this conversation and the aforementioned conversation, the defendant acknowledged and accepted the terms of this contract.” Prom such allegations it would appear that each party “accepted” something, presumably an offer of the other, which at best discloses an inability on the part of the plaintiff to decide whether it had made an offer or had accepted an offer.

The most that can be said about the telephone conversation is that the quotation of a price for alternate 4 constituted an oral amendment of the September 26th bid and neither the conversation or the conduct of the parties thereafter indicated any offer or acceptance. It appears to us that plaintiff assumed that defendant would agree to perform the resilient floor tile work only, which assumption later proved erroneous. In order to avoid the consequences of such erroneous assumption the plaintiff sought to infer the existence of a contract which did not exist.

For the foregoing reasons we believe the judgment of the Circuit Court of Peoria County is erroneous and its judgment is reversed.

Judgment reversed.

ALLOY and RYAN, JJ., concur.


author: MR. JUSTICE SEIDENFELD

text:
    John P. Lorang and Clare Lorang, Plaintiffs-Appellees, v. Donald A. Heinz, Defendant-Appellant.
    Gen. No. 68-151.
    Second District.
    May 22, 1969.

      Gates W. Clancy, of Geneva, for appellant.
    Charles J. Myler, Ruddy, Myler and Bartsch, and Charles A. Darling, of Aurora, for appellees.
   MR. JUSTICE SEIDENFELD

delivered the opinion of the court.

This is an interlocutory appeal from a judgment on a jury verdict of liability in a separated trial.

The action was brought by plaintiffs to recover damages from defendant for injuries received when their automobile was struck by defendant’s car, being driven by a thief who had stolen it some ten days prior to the accident. Defendant’s car, when stolen, had been left unoccupied in a parking lot of a shopping center with the keys in the ignition and the motor running.

The cause went to trial on the amended complaint which charged common-law negligence in leaving the automobile unattended, with the motor running and the key in the ignition. (The original complaint had charged a violation of section 92 of the Uniform Act Regulating Traffic on Highways (Ill Rev Stats 1963, c 95%, par 189). This was dismissed on motion which alleged that the acts charged were on private property and thus not within the statute. No appeal has been taken from the order striking the original complaint.)

Plaintiffs rely principally on authorities decided under the statute, supra, to support their view that the foreseeability of theft and resulting injury to another, arising out of leaving a car unattended, with the key in the ignition and the motor running in a private as well as in a public area, raises a common-law duty, the breach of which constitutes negligence. They contend that the question of whether such negligence was the proximate cause of the injuries to plaintiffs became a jury question and that the verdict of the jury is properly supported by the record.

Defendant argues that, absent the statute, there is no duty to so manage a motor vehicle, in the circumstances found here, to anticipate the independent crime of a thief and his willful or negligent driving thereafter “absent special knowledge of probable imminent theft if he leaves his keys in the ignition.” Defendant further argues that the evidence clearly negates any such special knowledge; and that, in any event, there was no proximate causal connection between the acts of negligence charged and an accident ten days later.

We agree with the defendant and will reverse the judgment below.

While leaving the ignition key in an unattended motor vehicle in a place frequented by the public, though privately owned, without other special circumstances may impose a duty to proprietary interests in the vehicle based on the reasonable foreseeability of car thefts, we do not find a similar common-law duty to one injured by the thief who drives the vehicle.

A classic principle of tort law, often stated in the Illinois cases, is that every person owes a duty to every other person to exercise ordinary care to guard against injury which may naturally flow as a reasonable, probable and foreseeable consequence of his acts. The duty does not rest on contract, privity of interest or the proximity of the relationship between the parties, but extends to remote and unknown persons. Wintersteen v. National Cooperage & Woodenware Co., 361 Ill 95, 103, 197 NE 578 (1935); Allegretti v. Murphy-Miles Oil Co., 363 Ill 137, 140, 1 NE2d 389 (1936); Kahn v. James Burton Co., 5 Ill2d 614, 622, 126 NE2d 836 (1955). Questions of breach of duty and proximate cause of injuries are usually questions of fact, but whether any duty exists is a question of law. Allegretti v. Murphy-Miles Oil Co., supra, pages 141, 142.

Obviously, every risk which is foreseeable does not create a duty to an injured person. In addition, the likelihood of injury, the magnitude of the burden guarding against it, and the desirability of placing the burden upon a defendant must also be considered. Lance v. Senior, 36 Ill2d 516, 518, 224 NE2d 231 (1967).

In the Lance case the Supreme Court affirmed the action of the trial judge in dismissing a complaint which charged the defendant with negligently and carelessly permitting and allowing a nine-year-old child to play with a needle, with the resulting injury when it was swallowed. In Pitts v. Basile, 35 Ill2d 49, 52, 53, 219 NE 2d 472 (1966) no duty was raised by the sale of darts to grocery stores as a matter of law although the corn-plaint alleged a propensity of darts to cause serious injuries, as demonstrated by the injuries suffered by the infant plaintiff in that case. Similarly, giving of a boomerang for use of a child imposed no liability as a matter of law, notwithstanding the foreseeability of injury. Maramba v. Neuman, 82 Ill App2d 95, 104, 227 NE2d 80 (1967).

It might well be argued that it is reasonably foreseeable that entrusting a motor vehicle to another, particularly to a minor or an aged person, will result in accidents, noting the high rate of accidents in those age brackets. However, our courts have ruled that a motor vehicle is not a dangerous instrumentality per se, and that the owner is not liable to one injured at the hands of a third person absent an agency relationship or absent authorization to such person, known to be incompetent or reckless, to drive a car. Arkin v. Page, 287 Ill 420, 428, 123 NE 30 (1919); Barton v. Williams, 4 Ill App2d 266, 269, 124 NE2d 356 (1955); Brill v. Davajon, 51 Ill App2d 445, 452, 201 NE2d 253 (1964).

In the case of Richards v. Stanley, 271 P2d 23 (1954), a case substantially similar to this case on its facts, the court stated on pages 26,27:

“The problem is not answered by pointing out that there is a foreseeable risk of negligent driving on the part of thieves. There is a foreseeable risk of negligent driving whenever anyone drives himself or lends his car to another. That risk has not been considered so unreasonable, however, that an owner is negligent merely because he drives himself, or lends his car to another, in the absence of knowledge on his part of his own or the other’s incompetence. Moreover, by leaving the key in the car the owner does not assure that it will be driven, as he does when he lends it to another. At most he creates a risk that it will be stolen and driven. The risk that it will be negligently driven is thus materially less than in the case in which the owner entrusts his car to another for the very purpose of the latter’s use.
“In one sense the problem presented involves the duty of the owner of an automobile so to manage if as not to create an unreasonable risk of harm to others. It bears emphasis, however, that when Mrs. Stanley left the car it was in a position where it could harm no one, an(d) no harm occurred until it had been taken by a thief. Thus a duty to prevent such harm would involve more than just the duty to control the car, it would involve a duty to prevent action of a third person. Ordinarily, however, in the absence of a special relationship between the parties, there is no duty to control the conduct of a third person so as to prevent him from causing harm to another. Lane v. Bing, 202 Cal 590, 592, 262 P 318; see, Ellis v. D’Angelo, 116 Cal App2d 310, 317, 253 P2d 675; Restatement, Torts, Sec 315; Harper and Kime, The Duty to Control the Conduct of Another, 43 Yale LJ 886. Moreover, this rule is applicable even in cases in which the third person’s conduct is made possible only because the defendant has relinquished control of his property to the third person, at least if the defendant has no reason to believe that the third person is incompetent to manage it. . . .
“. . . By leaving the key in her car she at most increased the risk that it might be stolen. Even if she should have foreseen the theft, she had no reason to believe that the thief would be an incompetent driver. In view of the fact that the risk of negligent driving she created was less than the risk she might intentionally have created without negligence by entrusting her car to another, and in the light of the rule that she owed no duty to protect plaintiff from harm resulting from the activities of third persons, we conclude that her duty to exercise reasonable care in the management of her automobile did not encompass a duty to protect plaintiff from the negligent driving of a thief.”

Plaintiffs have placed considerable reliance on Ney v. Yellow Cab Co., 2 Ill2d 74, 117 NE2d 74 (1954). In that case a taxicab had been left by its operator unattended on a Chicago street with the engine running and the key in the ignition. A thief stole the taxicab and while in flight ran into plaintiff’s vehicle causing property damage. In affirming the judgment of the plaintiff, the court held that the violation of section 92 of article XIV of the Uniform Traffic Act (supra) was prima facie evidence of negligence, and whether the injury was a proximate cause of the violation of the statute was a question for the jury under the circumstances of the case. The court noted the increase in the number of motor vehicles and the increased casualties from traffic accidents, the increased incident of automobile thefts and the damages and injuries resulting from such larcenous escapades, as requiring a recognition of the probable danger of resulting injury consequent to permitting a motor vehicle to become easily available to an unauthorized person by violation of the statute.

The court, however, was not dealing with a common-law duty but was instead considering the probable motivation and legislative intent involved in the passage of the statute in question. There the duty was imposed by statute and its violation was held to be prima facie negligence, the statute being construed as intended for the benefit of persons who might be injured by the operation of stolen cars rather than being considered as an anti-theft measure as the defendant argued in the case.

Kacena v. George W. Bowers Co., Inc., 63 Ill App2d 27, 211 NE2d 563 (1965) also dealt with the duty imposed by the statute, and as in Ney the principal issue was whether or not the violation of the statute was the proximate cause of the plaintiff’s injuries.

While there is some suggestion in Childers v. Franklin, 46 Ill App2d 344, 197 NE2d 148 (1964) that leaving a car unattended with the key in the ignition on private property was negligent, the opinion does not go into the question of the duty of the defendant, but affirms the finding of the trial court to the effect that the acts of the defendant were not the proximate cause of plaintiff’s injuries.

While we note that authorities in other jurisdictions are divided on the question of the existence of a common-law duty in the situation before us, we see no valid reason to enlarge the common-law duties found in the Hlinois cases based on agency or entrusting vehicles to incompetent drivers. We are of the opinion that if the common-law duty of an owner to exercise reasonable care in the management of his automobile is to be extended to protect a plaintiff from the negligent driving of a thief, this decision should be left to the legislature which can decide the basic issue of public policy, can analyze and review the statistics and the necessity for the rule — all of which we can note only in a general sense.

There was no evidence to charge defendant with knowledge of any special circumstances sufficient to raise a duty to anticipate the independent criminal acts of the third person.

Plaintiff contends that the Ney case, supra, establishes the rule that it is foreseeable that the leaving of a car, vulnerable to a thief, can be the proximate cause of an injury to a third person. We agree with this.

Defendant would not be relieved from liability by the intervening negligent driving of a thief, assuming the duty existed to guard plaintiff from that cause of injury. In Ney, that duty was created by statute and the question of proximate cause was properly one for the jury. Here, we find no such duty at common law, nor do we reach the question of whether proximate cause includes an incident beyond the period of flight. (Ney, supra, involved that period. Our Appellate Courts are seemingly in conflict as to whether a collision after the flight of a thief has terminated, as here, is within the foreseeability test of proximate cause. Childers v. Franklin, supra, page 355, and Kacena v. George W. Bowers Co., Inc., supra, page 39.)

We hold that the trial court erred in submitting the issues of negligence and proximate cause to the jury. We, therefore, reverse the judgment below and enter judgment for defendant.

Reversed.

ABRAHAMSON and DAVIS, JJ., concur.

       “189. Unattended motor vehicles.) Sec 92. No person driving or in charge of a motor vehicle shall permit it to stand unattended without first stopping the engine, locking the ignition and removing the key, or when standing upon any perceptible grade without effectively setting the brake thereon and turning the front wheels to the curb or side of the highway. As amended by act approved July 5, 1957. U 1957, p 1163.”


author: MR. JUSTICE DAVIS

text:
    Joan Linster, Plaintiff-Appellant, v. Jewel D. Regan, d/b/a Julie’s Luncheonette, Defendant-Appellee.
    Gen. No. 68-172.
    Second District.
    May 22, 1969.
    Jack R. Cook, of Loves Park, for appellant.

      John P. Graves, Jr., of Rockford, for appellee.
   MR. JUSTICE DAVIS

delivered the opinion of the court.

This case involved the narrow question of the right of a defaulting vendee to recover back money paid on the contract and withheld by the vendee as forfeited, absent any governing contract provision.

The plaintiff, Joan Linster, brought this suit for the return of a $500 deposit paid by her to the defendant, as a down payment under the terms of a written offer to purchase the defendant’s restaurant business for $8,500. The plaintiff was to have paid an additional $4,000 when the transaction was closed, and the balance of $4,000 on terms agreeable to both of the parties. The offer to purchase was prepared by the plaintiff, and was signed by both parties. It did not provide for forfeiture of the deposit, or any part thereof, in event the plaintiff failed to complete the transaction.

The court, without a jury, tried the case and determined that the plaintiff had breached the contract by failing and refusing to complete the transaction. The defendant testified that her only liquidated damage was approximately $100; but that she had been actively negotiating with two other prospective buyers, and terminated those negotiations at the time when she accepted the plaintiff’s offer. The trial court held that “(T)here is no requirement in Illinois law that indicates that a breach of contract actual damages must be proven even though there is no provision provided for the forfeiture of down payment,” and thereupon entered a judgment for the defendant. This appeal followed.

The defendant relies on Glenn v. Price, 337 Ill App 637, 86 NE2d 542 (1949), which appears to be the only case to reach the reviewing courts of this State on similar facts. The court there reviewed numerous Illinois cases dealing with contract forfeitures, and recognized that none of those cases was controlling because the contracts in question either made specific provision for the forfeiture of payments on a vendee’s default, or it was not clear from a statement of the case what provision, if any, had been made in regard to the disposition of payments upon a vendee’s default. Nevertheless, the court, in Glenn, stated that the tenor of a majority of the opinions, in somewhat similar cases arising in this jurisdiction, seemed to be that a defaulting purchaser cannot recover a down payment when he is in default and the vendor is ready and able to comply with the terms of the contract. At page 641 the court stated:

“Although no specific reason can be given for this, it would appear that society generally will benefit, and administration of justice will be facilitated by a rule of law which will affirmatively encourage contracting parties to make every effort to carry out their contractual obligations.”

The court felt that any overcompensation allowed the defendant in Glenn should be considered an added incentive to perform, rather than a penalty for not performing. The court also felt that to adopt another view would subject to litigation a party who was ready and willing to perform by one who was in default. The rule stated by the court in Glenn appears to be the majority rule as is pointed out in the exhaustive annotation on the subject in 31 ALR2d 8, although as that annotation further indicates, several jurisdictions hold to the contrary.

The status of the law on this subject is adequately stated by the court in Tucker v. Beam, 343 Ill App 290, 98 NE2d 871 (1951) at page 294, in these words:

“There is probably no branch of contract law in such a state of confusion as that concerning the rights at law of a defaulting purchaser under a contract for a deed. Although the factual situations differ widely, it remains extremely difficult to state any general principle to be deduced from the case. About all that can be done is to find a majority view, and concede that some cases are not in conformity.”

Professor Williston agrees with the minority rule in his treatise on the law of contracts and states:

“Few questions in the law have given rise to more discussion and difference of opinion than that concerning the right of one who has materially broken his contract without legal excuse to recover for such benefit as he may have conferred on the other party by part performance on an indivisible contract or by the performance of an indivisible fraction of a divisible portion of a contract. A satisfactory solution is not easy for two fundamental legal policies seem here to come in conflict; on the one hand it seems a violation of the terms of the contract to allow a plaintiff in default to recover ... to allow a party to stop when he pleases and sell his part performance at a value fixed by the jury to the defendant who has agreed only to pay for full performance. On the other hand, to deny recovery often gives the defendant more than fair compensation for the injury he has sustained and imposes a forfeiture on the plaintiff. The mores of time and place will often determine which policy will be followed, but the second of these opposing policies has steadily increased in favor in recent years except where the obliquity of the defective performance is of a sort that indicates moral obliquity and where therefore the courts feel that the one who is in default may properly be penalized, the tendency is to grant him restitution if a substantial benefit has accrued to the defendant by partial performance.” Williston on Contracts, § 1473.

Professor Corbin, another major writer in the field of contracts, states that a defaulting purchaser is entitled to restitution in situations where the money held by his vendor exceeds the vendor’s actual loss. 5A, Cor-bin on Contracts, § 1132, p 64.

Notwithstanding these eminent authorities, we feel constrained to follow the rule established in Glenn wherein petition for leave to appeal was denied; to hold otherwise would be to permit a party to sustain an action based on his own breach of contract where the other party stands ready and willing to perform.

If the parties to a contract have agreed upon a down payment, we believe that such sum should be accepted, unless otherwise provided, as the bargain of the parties for assurance to the seller that the buyer will perform. This, really, is the purpose and reason for a down payment with an offer. For these reasons, we believe that the judgment of the trial court should be affirmed.

Judgment affirmed.

MORAN, P. J. and ABRAHAMSON, J., concur.


author: CRAVEN, J.,

text:
    People of the State of Illinois, Plaintiff-Appellee, v. David Carlson and Gregory A. Eaton, Defendants, Gregory A. Eaton, Defendant-Appellant.
    Gen. No. 10,969.
    Fourth District.
    May 22, 1969.

      Gary L. Haddock, of Decatur, for appellant.
    Basil G. Greanias, State’s Attorney, and Frederick P. Erickson, Assistant State’s Attorney, for appellee.
   CRAVEN, J.,

delivered the opinion of the court.

The defendant, Gregory Alan Eaton, then aged 15 years, first was brought before the courts of Macon County, Illinois, in May of 1967. At that time a detention hearing was held. Thereafter a petition was filed alleging Eaton to be a “delinquent minor.” This petition asserted that he had committed two acts — a robbery on April 29 and criminal destruction of property on May 10 of 1967. On June 2, 1967, the minor respondent was placed under the supervision of a probation officer and the adjudicatory hearing was continued.

In September of 1967, by leave of court, the original delinquency petition was amended to add a new allegation, that being that the respondent committed armed robbery and aggravated battery on April 28, 1967. This amendment was an allegation as to conduct separate and distinct from the two acts asserted in the original delinquency petition. Following this the State’s Attorney filed a motion stating an intent to prosecute the respondent in the circuit court and asked the court to determine, pursuant to the provisions of the Juvenile Court Act, whether or not there was any objection to the removal of the cause. There was no objection to removal.

The allegation as to the. April 28, 1967, charge of armed robbery and aggravated battery, added to the petition by amendment, was thereafter stricken from the petition. On October 13, 1967, the grand jury returned an indictment charging the defendant with robbery and aggravated battery — the April 28, 1967, alleged offense. A motion to dismiss this indictment was filed which, in substance, asserted that the indictment was barred by the prior juvenile proceedings in that there had been an adjudication and that Eaton was a ward of the court, and that the taking of evidence in the adjudicatory hearing is a bar to criminal proceedings. This motion was denied.

Thereafter, in November of 1967, Eaton pleaded guilty to the offense of robbery and the charge of aggravated battery was dismissed. The defendant’s motion for probation was denied, and following that the defendant was committed to the Illinois Youth Commission. This appeal follows.

The defendant urges by analogy to section 3-3 of c 38, Ill Rev Stats 1967, and by reason of section 702-7 of c 37, Ill Rev Stats 1967, that the subsequent proceedings in the circuit court are barred by reason of the prior proceeding under the petition alleging the defendant to be a delinquent minor. This issue was decided by the Illinois Supreme Court, subsequent to the filing of this appeal and, indeed, subsequent to the filing of the appellant’s brief, in People v. Depoy, 40 Ill2d 433, 240 NE2d 616 (1968).

There the court stated (at 435-436 (240 NE2d at 617-618)):

“In support of his argument that a minor may not be placed in jeopardy in a criminal prosecution after having been proceeded against in a delinquency proceeding based upon the same conduct, the defendant relies on the recent cases of In re Application of Gault, 387 US 1, 18 L Ed2d 527, 87 S Ct 1428, and In re Urbasek, 38 Ill2d 535 [232 NE2d 716], which held that the similarities between criminal prosecutions and delinquency proceedings require that certain constitutional guarantees implicit in the concept of due process apply to minors in juvenile proceedings at the adjudicatory stage. The defendant also relies on section 702-7 of the Juvenile Court Act which states in pertinent part: ‘Taking of evidence in an adjudicatory hearing in any such [juvenile delinquency] case is a bar to criminal proceedings based upon the conduct alleged in the petition.’ It is obvious, however, that defendant cannot invoke this statute or the constitutional prohibition against double jeopardy to prevent a criminal prosecution against him unless he proves that there was a prior adjudicatory proceeding in which he was charged with the commission of acts causing the death of Robert Gnutek, for it is only at the adjudicatory stage that a defendant is placed in jeopardy. . . .”

In this case, as in Depoy, there was no adjudicatory hearing on the issue. That which was added to the petition by the amendment, and subsequently stricken, was not presented to and determined by the juvenile court proceedings. Depoy is thus determinative of the contention.

The defendant asserts that the Juvenile Court Act is deficient in that section 702-7 (3) of c 37, 111 Rev Stats 1967, permits the State’s Attorney to have the question of the removal of a case from the jurisdiction of the juvenile court to the circuit court referred to the chief judge of the circuit for decision if the juvenile court judge objects to the removal, whereas, the minor respondent has no such access to disposition of the question by the chief circuit judge if the juvenile court does not object to removal. In People v. Hester, 39 Ill2d 489, 237 NE2d 466 (1968), the court considered the issue of jurisdiction of criminal courts of minor defendants. The issue there presented was somewhat different from the issue here, and the act under consideration was the old Family Court Act. That which was stated by the court in Hester, however, is germane here.

“. . . the defendant now urges us to read statutory sections 9a and 10 of the old Family Court Act (pars 2014, and 2021) in pari materia to require that the family court first exercise its discretion in determining whether to ‘permit’ the criminal court to entertain a criminal action against a juvenile defendant who has a delinquency petition pending against him for the same act. While we have never considered this precise question (see People ex rel. Malec v. Lewis, 362 Ill 229, 231 [199 NE 276]; 1962 Ill LF 533, 539-40, n 41), we believe that the reasons stated in People v. Lattimore, 362 Ill 206 [199 NE 275], apply with equal force here. In Lattimore (pp 208-9) we noted that the juvenile court was one of limited jurisdiction while the jurisdiction of the criminal court to try cases was vested by section 26 of article VI of the State constitution, and we concluded: ‘The legislature is without authority to confer upon an inferior court the power to stay a court created by the constitution from proceeding with the trial of a cause jurisdiction of which is expressly granted to it by the constitution.’ As we will always adopt a reasonable construction of a statutory provision which renders it constitutional, we read the language of section 9a that ‘The [juvenile] court may in its discretion in any case of a delinquent child permit such child to be proceeded against in accordance with the laws that may be in force in this State governing the commission of crimes . . . . In such case the petition filed under this act shall be dismissed’ as permitting the juvenile court to dismiss a delinquency action which is brought contemporaneously with an action in the criminal court for the same acts of the minor. Thus section 9a merely allowed the juvenile court to prevent a concurrent action from proceeding before it, and did not provide an avenue whereby the juvenile court could prevent a criminal action against a minor defendant.” People v. Hester, 39 Ill2d 489, 507-508 (237 NE2d 466, 477-478).

In this case the juvenile court judge made no objection to the transfer and the cause proceeded in the circuit court as a criminal matter. The juvenile court matter was, in effect, dismissed. There is no showing that as to the offense — the subject-matter of the indictment— there was a prior adjudicatory proceeding under the Juvenile Court Act. The judgment of the Circuit Court of Macon County is affirmed.

Judgment affirmed.

TRAPP, P. J. and SMITH, J., concur.


text:
    People of the State of Illinois, Plaintiff-Appellant, v. John Markword, Defendant-Appellee.
    Gen. No. 10,985.
    Fourth District.
    May 22, 1969.

      Donald G. Adams, State’s Attorney of Adams County, of Quincy, and William A. Brown, Assistant State’s Attorney, for appellant.
    Harold L. Madsen, Public Defender, of Quincy, for appellee.
   CRAVEN, J.,

delivered the opinion of the court.

Section 103-5 (a) of c 38, 111 Rev Stats 1967, provides, so far as is relevant to this appeal, that every person in custody in this state for an alleged offense shall be tried within 120 days from the date he was taken into custody unless the delay is occasioned by the defendant. This provision and its predecessors are statutory enactments designed to implement the constitutional right to a speedy trial as found in art II, section 9, of the constitution. People v. Love, 39 Ill2d 436, 235 NE2d 819 (1968). In People v. Gray, 83 Ill App2d 262, 227 NE2d 159 (4th Dist 1967), we reviewed the general principles announced in the many cases arising under this or like statutory provisions. Those principles are that the 120-day statute is intended to give a right of discharge upon a want of prosecution within the time specified. The cases have made it very clear that the statute contemplates that all means which are available should be used, and the burden is upon the State to try offenses promptly in compliance with this statutory burden. Technical evasions arising through either intent or inadvertence of the court or the prosecutor will not be permitted to ascribe to a defendant a continuance or a delay that is not actual so as to toll the running of the statute. See People v. Wyatt, 24 Ill2d 151, 180 NE2d 478 (1962); People v. Bryarly, 23 Ill2d 313, 178 NE2d 326 (1961); People v. House, 10 Ill2d 556, 141 NE2d 12 (1957); People v. Emblen, 362 Ill 142, 199 NE 281 (1935); People v. Fosdick, 36 Ill2d 524, 224 NE2d 242 (1967).

We turn now to the chronology of this case which resulted in the trial court’s granting the defendant’s motion for discharge and this appeal by the People from the order of discharge.

The defendant was taken into custody on Friday, August 18, 1967, and charged with the offense of burglary. He requested a preliminary hearing and this hearing was held on August 29. Probable cause was found and the defendant was bound over to the grand jury and remanded to the custody of the sheriff in lieu of bond. The defendant remained continuously in custody at all times recited in this chronology.

The defendant’s case was presented to the Adams County grand jury on December 13, 1967. An indictment was returned on December 14. On Friday, December 15, the 119th day of defendant’s custody, the defendant appeared in the circuit court with his court-appointed counsel, was arraigned, entered a plea of not guilty, and the case was set for trial December 18.

The attorney for the defendant then requested a continuance of the jury trial. He asked and obtained leave to file preliminary motions. The continuance was granted and the matter was reset for jury trial on January 8, 1968. On December 15, a motion for a bill of particulars for transcript of the preliminary hearing and for production of certain items of physical evidence and for a copy of any written confession, as well as for a list of witnesses, was filed.

At the time of the arraignment, it is clear from the record that the court and counsel were very mindful of the impending 120-day issue as it related to this case. The court appearance resulting in the continuance was followed soon thereafter, also on December 15, 1967, by another appearance by all parties. At the later appearance the defendant made an oral motion to withdraw his previous motion for a continuance. In reply to that motion the State’s Attorney indicated no opposition to a continuance and a readiness to proceed with the trial of the case. This hearing was recessed over the noon hour and then resumed. At the expiration of the recess the court inquired of the State’s Attorney his views on the motion to withdraw the motion for a continuance. The State’s Attorney observed that “. . . we could oppose the motion for the matter of the record. Of course, he is withdrawing his own motion, but counsel has already made a request for a continuance . . . .” The State’s Attorney again advised the court of his readiness to proceed to trial.

The motion to withdraw the motion for a continuance was granted and the case was set for trial December 18, 1967, the same date for which it was set prior to the motion for continuance. The other motions made by the defendant, previously alluded to, were allowed, some without objections by the People. At 2:15 p. m. on Friday, December 15, these motions were allowed and the State indicated its ability to comply with most of them by 4:30 p. m. that day. The order for production of the transcript of the preliminary hearing provided for compliance on or before Monday, December 18, 1967, at 9:30 a. m.

On December 18, 1967, the 122nd day after he was taken into custody, the defendant filed his motion for discharge under the 120-day statutory provision. The trial court discharged the defendant.

We are aided in this case by a clear and concise statement by the trial judge supporting his action and by timed report of proceedings of the various court appearances on December 15, 1967, the 119th day. The trial court concluded, and indeed we think there is no controversy, that the 120 days started on August 18,1967. The record shows and the trial judge found that the defendant made his motions for a list of witnesses, production of evidence, confession, bill of particulars and transcript of preliminary hearings at the earliest possible time he could have made such motions, i. e., the day he was arraigned. It is, of course, unnecessary to cite authority for the proposition that the defendant has an absolute right to wait until the grand jury has acted.

As to the motions that were filed, the trial court observed: “He had the right to them, he had the right to information before proceeding to trial. This right is expressly conferred upon him and he was not in any way delaying. It appears to me that without attempting to fix fault in any sense, that the defendant has been held in custody for more than 120 days, he is entitled to be discharged, . . . .” We agree. In this case the defendant was held in custody for 118 days prior to the return of an indictment. The motion for continuance that was made, allowed and withdrawn, all on the same day, cannot in the context of this record be said to have been a delay occasioned by the defendant. The action on that motion delayed nothing, changed nothing and cannot, therefore, be said to be a delay “occasioned by the defendant.” The judgment of the Circuit Court of Adams County is affirmed.

Judgment affirmed.

TRAPP, P. J. and SMITH, J., concur.


author: SMITH, J.

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Dwight L. Boyd, Defendant-Appellant.
    Gen. No. 10,990.
    Fourth District.
    May 22, 1969.

      John J. Casey, Public Defender, of Springfield, for appellant.
    Raymond L. Terrell, State’s Attorney of Sangamon County, of Springfield, and D. Bradley Blodgett, Assistant State’s Attorney, for appellee.
   SMITH, J.

The defendant was found guilty by a jury of theft in violation of 111 Rev Stats 1965, c 38, § 16-1, for the theft of a Chevrolet truck. He was admitted to probation with the condition that 90 days of his probation period be served in the Sangamon County jail. He appeals on the ground that (1) the evidence does not show his guilt beyond a reasonable doubt and (2) that the trial court erroneously refused to instruct the jury on the crime of criminal trespass to vehicles. Ill Rev Stats 1965, c 38, § 21-2.

The defendant had worked for a carnival in Taylorville, Illinois, hitchhiked a ride to Springfield, and for about two hours tried to hitchhike a ride to Chicago. Having no success, he took a semitruck from the side of the road and drove it about a mile before it stopped for some unknown reason. He abandoned it, walked a short distance north and then took the 1960 Chevrolet truck from the Dawson Lumber Company yard. He drove it for about ten miles when he threw a rod and was slowing down when another truck hit him in the rear. He left the truck alongside the road and was walking north when taken into custody by the highway police. His justification for his conduct is that he was tired of hitchhiking and was seeking transportation, and he had no intention whatsoever of permanently depriving the owner of the use of his truck.

People v. Heaton, 415 Ill 48, 112 NE2d 131, is strikingly similar to this case. In that case, the testimony was that the boys were only going for a joy ride and then would return the car to the owner. Since the owner saw them leave with the car, they were apprehended before there was any effort to return the automobile. The same contention was there made that the defendants did not intend to deprive the owner permanently of his property. The court stated that there was no fact or circumstance indicating an intention upon the part of the plaintiff in error to return the automobile to its true owner. In the case at bar, whatever may have been the intention of this defendant, the breakdown of the truck precluded his carrying it out and he abandoned the truck. The defendant cites People v. De Stefano, 23 Ill2d 427, 178 NE2d 393, as authority for the proposition that the evidence must show an intention to permanently deprive the owner’s use of his car. In that case, the evidence showed that the defendant had taken the car from a garage, where he was working on his own car, to go to a restaurant for a cup of coffee. The restaurant was closed and he had turned around and started back to the garage where his own car had been left, when the police apprehended him. The Supreme Court there said that all of the circumstances negatived any intention of De Stefano to permanently deprive the owner’s use of his car. Those circumstances or circumstances comparable to that situation are not present in this case. The defendant, in the case at bar, not only took two trucks, but abandoned each of them when motor trouble developed. The defendant testified that what he intended to do was to abandon the trucks on some main highway where the owner wouldn’t have too much difficulty in locating them. This posture of innocence does not look quite right. In Heaton, the Supreme Court observed that the intention closeted in the mind of man can only be ascertained by facts and circumstances suggesting or indicating what that intention is and whether that intention was to feloniously deprive the owner of an automobile of his property is a jury question. And so it is here. It was not error to deny the motion for a directed verdict.

The defendant’s complaint that the court’s refusal to instruct the jury on criminal trespass to vehicles was error is likewise not well taken. The instruction tendered reads as follows: “The court instructs the jury that whoever knowingly and without authority enters any vehicle or part thereof of another without his consent commits the offense of criminal trespass to vehicles.” This is a correct statement of HI Rev Stats 1965, c 38, § 21-2. It is clear by the defendant’s own testimony that he knowingly and without authority entered this motor vehicle and drove it away. His theory presented during the trial was that he did not intend to permanently deprive the owner of his property, but only intended to provide himself transportation to Chicago and then abandon the truck. Such a theory envisions only a temporary use of the property without the consent of the person owning it and is more properly consistent with HI Rev Stats 1965, c 38, § 16-3 (a), which reads in part “. . . a person commits theft when he obtains temporary use of property .. . knowing that such use is without the consent of the person . . . .” The Committee comment on this section is that it was a continuation of the temporary use aspect of 111 Rev Stats 1959, c 38, ¶ 439, covering tampering with motor vehicles. It thus seems to us that the instruction tendered and the statute invoked were not intended to include a factual situation where there was a taking or driving away as there was in the case at bar under either the defendant’s theory or the State’s theory. That section, in our judgment, must be limited to the entering of the vehicle for some purpose other than a driving use. Such being the case, the instruction tendered has no relationship to the facts in this case and its refusal was not error.

Accordingly, the judgment of the trial court should be and it is hereby affirmed.

Affirmed.

TRAPP, P. J. and CRAVEN, J., concur.