text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Terrence J. Baron, Defendant-Appellant.
    (No. 70-33;
    Second District
    November 25, 1970.

      John J. Wallace, of Wallace, Shelton, ICleinman, Belline, Kalcheim & Curoe, of Chicago, for appellant.
    James Boyle, State’s Attorney, of Sycamore, (Charles Marshall, Assistant State’s Attorney, of counsel,) for the People.
   Mr. PRESIDING JUSTICE DAVIS

delivered the oinion of the court:

The defendant, Terrence J. Baron, was indicted for the illegal sale of hallucinogenic drugs, in violation of section 802(b) of Chapter 111½ of Illinois Revised Statutes of 1969. The indictment charged that the defendant sold 220 LSD tablets on May 27, 1969, and the indictment bore number F69-41. This was a second offense and was therefore classified as a felony. The first offense against the defendant was charged in a complaint which was then pending before the same court. It bore case number M69-590, and was classified as a misdemeanor. (See: Ill. Rev. Stat. 1969, ch. 111½, par. 804.) A further and unrelated misdemeanor charge was pending against the defendant which bore number M69-591.

The defendant pled guilty to charges M69-590 and F69-41, and the State then filed a nolle prosequi to case number M69-591. The case numbered F69-41 was then set for hearing on an application for probation and for hearing in aggravation and mitigation. The court ordered the probation officer to make an investigation and report back within two weeks.

At this point in the proceeding, it was made known to the court that the guilty pleas in cases F69-41 and M69-590 had both been obtained upon a promise of probation. When it became apparent that the court was not going to be governed by the negotiated plea agreement, the defendant’s counsel immediately asked that the pleas of guilty be withdrawn in cases F69-41 and M69-590, and that the nolle prosequi, which had been entered in case M69-591, be withdrawn and the case reinstated, thus placing everything in the proceedings back at its initial status. The court denied the motion and granted probation for a period of three years, conditioned upon the first nine months thereof being served in the Illinois State Prison Farm at Vandalia.

The defendant filed an extensive motion for new trial, which was denied, and he has appealed. He contends, among things, that the trial court erred in refusing to permit him to withdraw his pleas of guilty. We believe that the defendant is correct in this contention.

The defendant obviously agreed to plead guilty upon the misapprehension that he would receive an unconditional probation on the felony charge of selling hallucinogenic drugs. The record permits no other conclusion. The court would not accede to such agreement, and conditioned the defendant’s probation upon the first nine months thereof being served in the Illinois State Prison Farm at Vandalia.

In People v. Riebe (1969), 40 Ill.2d 565, the court, at page 568, summarized the oft-repeated principles applicable to permitting the withdrawal of a plea of guilty, in these words:

“The discretion of the trial court to permit the withdrawal of the plea of guilty is a judicial discretion which should always be exercised in favor of innocence and liberty. The law favors a trial upon the merits by jury, and all courts should so administer the law and construe the rules of practice as to secure a hearing upon the merits, if possible. The least surprise or influence causing a defendant to plead guilty when he has any defense at all should be sufficient cause to permit a change of the plea from guilty to not guilty. The' withdrawal of the plea of guilty should not be denied in any case where it is evident that the ends of justice will be served by permitting the plea of not guilty in its stead.”

The Advisory Committee on the Criminal Trial of the American Bar Association Project on Minimum Standards for Criminal Justice with reference to Pleas of Guilty, recommends in Part II, Section 2.1, (a)(ii)(4), relating to the withdrawal of a guilty plea, that the court should allow a defendant to withdraw a guilty plea if the defendant proves that “he did not receive the charge or sentence concessions contemplated by the plea agreement and the prosecuting attorney failed to seek or not to oppose these concessions as promised in the plea agreement.” See People v. Walston (1967), 38 Ill.2d 39, 43, 44.

We are compelled to the conclusion that the trial judge knew of the negotiations that preceded the plea of guilty in cases numbered F69-41 and M69-590. While that judge was not the judge who entered the subsequent orders, this circumstance does not alter our view that the ends of justice require that the defendant be permitted to withdraw his plea of guilty in cases numbered M69-590 and F69-41, and to substitute in lieu thereof, pleas of not guilty. We note that as to the other misdemeanor case numbered M69-591, a nolle prosequi was entered at the time the guilty pleas were entered. The record and appellant’s brief indicate that this nolle prosequi was a part of the same plea agreement. Consequently, the defendant must agree to the reinstatement of that case, subject to his right to change his pleas, if he is to be permitted to alter his pleas in cases F69-41 and M69-590.

If such concession is not forthcoming, the judgment herein is to be affirmed; if such concession is made, then the judgment of the trial court is reversed and the cause is remanded for further proceedings not inconsistent with this opinion.

The trial judge who entered the judgment appealed from herein evidently became confused with reference to the number, charge, plea, and status of each of the three cases which were pending against the defendant. Under such circumstances, he entered an order that the felony case against the defendant, numbered F69-41 be designated a misdemeanor. Such order was beyond his power. It is the duty of the State’s Attorney in misdemeanor cases, and the State’s Attorney or Grand Jury in felony cases, to determine the charge which will be placed against a person.

Section 5 of chapter 14 of Illinois Revised Statutes of 1969 provides that it is the duty of the State’s Attorney to commence and prosecute all criminal actions, suits and indictments. Article III of the Illinois Constitution divides the powers of the government among the legislative, executive and judicial departments, and provides that neither of these departments shall exercise powers belonging to either of the other departments.

The State’s Attorney’s office is a part of the executive branch of the government, and the powers exercised by that office are executive powers. A judge or court cannot exercise the powers of the executive branch of our government. (People ex rel. Elliott v. Covelli (1953), 415 Ill. 79, 88, 89.) Thus, the court erred in designating the felony charge as a misdemeanor and in treating it as such. This order was void as a judicial encroachment upon the executive power of the State’s Attorney.

The other matters raised by the defendant need not be discussed in view of the position we have taken herein. Accordingly, the judgment is reversed and remanded, subject to the conditions enumerated in the opinion.

Judgment reversed and remanded.

MORAN and SEIDENFELD, JJ., concur.


source: Caselaw Access Project

author: Mr. PRESIDING JUSTICE DAVIS

license: Public Domain

text:
    The People ex rel. Paul E. Hamer, Plaintiff-Appellant, v. Board of Education of School District No. 109, County of Lake et al., Defendants-Appellees.
    (No. 70-56;
    Second District
    November 25, 1970.

      Paul E. Hamer, of Northbrook, for plaintiff-appellant.
    Ralph Miller, Allyn J. Franke, of Norman & Billick, of Chicago, for defendants-appellees.
   Mr. PRESIDING JUSTICE DAVIS

delivered the opinion of the court:

The plaintiff, Paul E. Hamer, filed this action seeking to compel the defendants, the Board of Education of School District No. 109, County of Lake, and the Secretary-Treasurer of the School District, to permit the plaintiff to examine and copy certain documents, and to challenge the conveyances of certain lands. The trial court dismissed the complaint, consisting of three counts, and the plaintiff has appealed.

In Count I, the plaintiff sought a writ of mandamus to compel the defendants to permit the inspection of certain receipts, which would indicate whether or not private citizens had paid for two brochures issued by the school district relative to a referendum, and sought to inspect a preliminary title report on land conveyed by the Deerfield Park District to the school district.

In Count II, he prayed for a declaratory judgment, in essence, that the conveyance from the park district to the school district be declared invalid under the particular circumstances.

In Count III, he sought equitable relief: that a decree be entered which would authorize him to examine the requested documents; that the conveyances be set aside, and for other relief. The trial court dismissed all three counts of the complaint and denied the plaintiff’s oral motion to amend his complaint.

We will first consider the propriety of the dismissal of Counts II and III, which alleged that the plaintiff was investigating the sale of two parcels of real estate from the Deerfield Park District to the defendant school district; and that he was a resident and property owner of said school district. The allegations were somewhat vague relative to the exact nature of the events of which the plaintiff complained, and the precise extent of the relief which he sought. Basically, however, the plaintiff prayed for a determination that the conveyances were contrary to statutory limitations, or, if not, that the statute authorizing the conveyances is unconstitutional. The main thrust of the complaint was that the conveyances constituted a misuse of public property.

The trial court dismissed Counts II and III on the ground that the plaintiff had failed to allege special damage sufficient to give him standing to sue. At this time, the Supreme Court, in Droste v. Kerner (1966), 34 Ill.2d 495, 504, had held that a taxpayer or property owner has no standing in equity to enjoin an alleged misuse of property held in trust for the public unless he alleged and proved that he would suffer special damage, different in degree, and in kind, from that suffered by the public at large. Subsequent to the determination of the trial court in this case, the Supreme Court in Paepcke v. Public Building Commission of Chicago (1970), (Ill.2d), overruled that portion of its opinion in Droste dealing with the right and standing of the plaintiff so sue, and held, among other things, that a taxpayer has standing to challenge an alleged misuse of property held in trust for the public or an unauthorized diversion or reallocation of use, in that, as a taxpayer, the individual has an equitable interest in the public property.

This equitable interest affords the basis for standing to sue, or a right to sue; and the taxpayer need not rely solely upon the efforts of public law officers for the protection of public rights. Thus, in Paepcke, the court adopted the dissenting opinion in Droste. Also see: The Liberalized Law of Standing, Davis, Vol. 27, No. 3, University of Chicago Law Review p. 450.

The plaintiff neither filed a written motion to amend, nor exhibited to the court the proposed pleading, but he did make an oral motion to amend when the court indicated it was going to dismiss the complaint for failure to allege special damage. The trial court denied this motion.

Counts II and III alleged a number of statutory violations in a somewhat shotgun manner; and the exact and precise vices which they purported to assail are not entirely comprehensible. These counts did not meet the requirement of section 33 of the Civil Practice Act (Ill. Rev. Stat. 1969, ch. 110, par. 33), in that they did not “contain a plain and concise statement of the pleaders cause of action.” While the trial court correctly denied the plaintiffs motion to amend under the pleadings, facts, and the law then before it, under the Paepcke decision, the plaintiff now has a right to sue, and we believe that he should be given an opportunity to amend his complaint to plainly and concisely state a cause of action, if such can be done, under the existing factual situation. Thus, the order of dismissal of Counts II and III is reversed and the cause is remanded with directions to the trial court to allow the plaintiff to amend said counts of his complaint.

Section 4 of the Civil Practice Act (Ill. Rev. Stat. 1969, ch. 110, par. 4) provides that the Act shall be liberally construed to the end that controversies may be speedily and finally determined according to the substantive rights of the parties. Thus, the power to allow amendments should be freely exercised so that a litigant may fully present his alleged cause of action. (Scardina v. Colletti (1965), 63 Ill.App.2d 481, 491.) Any abuse of discretion by a trial court in permitting or denying amendments to pleadings is subject to review. Martin v. Kozjak (1955), 5 Ill.App.2d 390, 393.

Also, we believe that the trial court was in error in dismissing Count I, in which the plaintiff sought a writ of mandamus to compel the defendants to permit him to examine a preliminary title report received by the defendants relative to the land conveyed, and to examine certain receipts relating to expenditures for brochures used in conjunction with a referendum. This count was dismissed on the ground that the “letter of opinion” was not a public record, and that the court, in the exercise of judicial discretion, did not believe that justice required the issuance of the writ of mandamus. In our opinion, the plaintiff was entitled to a further hearing on the merit of this count.

Both the plaintiff and the defendants direct our attention to the State Records Act (Ill. Rev. Stat. 1969, ch. 116, par. 43.4 et seq.) as defining public records for this purpose. Section 3 of the Local Records Act (Ill. Rev. Stat. 1969, ch. 116, par. 43.103), applicable to boards of any county, municipal corporation or political subdivision, contains substantially the same provisions as those set forth in the State Records Act, and defines “public record” as follows:

“Public record” means any book, paper, map, photograph, or other official documentary material, regardless of physical form or characteristics, made, produced, executed or received by any agency or officer pursuant to law or in connection with the transaction of public business and preserved or appropriate for preservation by such agency or officer, or any successor thereof, as evidence of the organization, function, policies, decisions, procedures, or other activities thereof, or because of the informational data contained therein. Library and museum material made or acquired and preserved solely for reference or exhibition purposes, extra copies of documents preserved only for convenience of reference, and stocks of publications and of processed documents are not included within the definition of public record.”

As to the receipts, the defendants plead and claimed that they have at all times been willing to permit the plaintiff to examine and reproduce these records in the manner designated in the State Records Act, but they assert that the preliminary title report is not a “public record,” subject to examination. They argue that a letter of opinion or preliminary report of title is not a record “required” to be kept, nor is it evidence of their procedures or operations. The statute, however, also refers to “other official documentary material * * * received 5 * * in connection with the transaction of public business and 6 # “ appropriate for preservation * * s as evidence of the # ” activities thereof, or because of the informational data contained therein.”

The defendants also direct our attention to Linder v. Eckard (Iowa 1967), 152 N.W.2d 833, in which it was held that an appraisal report was not subject to public inspection. However, the court stated therein at page 835 that appraisals were preliminary matters of investigation, and, until acted upon, material of that kind did not assume the status of a public record or writing. Thus, Linder suggests that the Iowa courts would hold preliminary matters, such as appraisals or preliminary title reports, to be public records once some official action has been taken upon them.

In the case at bar, it appears from the record before us that official action has been taken on the prehminary title report in question. Under the applicable statutes of our State, the rationale of Linder, and the general desirability of a policy which permits the public inspection of documents acted upon by public officials in a public capacity, we believe the trial court erred in dismissing Count I of the complaint.

For the reasons stated herein, the judgment of the trial court is reversed and the cause remanded for further proceedings.

Reversed and remanded with directions.

MORAN and SEIDENFELD, JJ., concur.


text:
    James Q. McGrath Individually and as Admr., Plaintiff-Appellant, v. Alfred J. Rohde et al., Defendants-Appellees.
    (No. 69-128;
    Second District
    November 30, 1970.

      Treacy & Clifford, of Chicago, for appellant.
    Rathje, Woodward, Dyer & Burt, of Wheaton, for appellees.
   Mr. PRESIDING JUSTICE DAVIS

delivered the opinion of the court:

The plaintiff, James Q. McGrath, individually and as administrator of the estates of Bonnie and Matthew McGrath, deceased, and as father and next friend of Michael and Julia McGrath, minors, brought this suit against Alfred J. Rohde and William Link to recover for the alleged wrongful deaths of Bonnie and Matthew McGrath, and for injuries to Michael, Julia and himself. The trial court directed a verdict for the defendants at the close of the plaintiffs’ case and the plaintiffs have appealed.

The plaintiffs contend that the trial court erred in excluding the testimony of a reconstruction expert, as a witness, and in refusing to admit his testimony relative to certain measurements.

On the day of the occurrence, James Q. McGrath, individually, herein called the plaintiff, was driving his station wagon, with four of his children as passengers, on the Lake Street extension of the expressway system. He testified that he was driving at a speed of about 60 m.p.h. in the outside or right-hand lane; that he passed a car which was travelling in the inside or left-hand lane; that he then passed a second car by moving to the inside lane, overtaking the car, and returning to the outside lane without any contact; and that at this point, he was about two hundred feet from a bridge with a railing or abutment, which crossed over a railroad track. The last he recalled before the accident was seeing the headlights of the car he had passed in his rear view mirror; the next thing he remembered was regaining consciousness at the hospital.

Although the benefit of the Dead Mans Act (Ill. Rev. Stat. 1965, ch. 51, par. 2) was available to the plaintiff in his capacity as administrator, he called the defendant, Rohde, as an adverse witness, under section 60 of the Civil Practice Act. Ill. Rev. Stat. 1965, ch. 110, par. 60.

Rohde testified that he was driving his car at a speed of approximately 45 to 50 m.p.h. when the plaintiff passed him (his was the second car which the plaintiff testified that he had passed); that as soon as the plaintiff’s car had passed him, he took his foot off the accelerator and started applying his brakes because the plaintiff had come very close to his car in passing; that he was five or six car lengths from the bridge at that time; that the plaintiff’s car then struck the railing or bridge abutment, was thrown into the air and pivoted clockwise, and that he (Rohde) tinned his car to the left to try to avoid the plaintiíFs car, but struck it while it was still in the air.

Rohde further testified that the right front portion of his car struck the plaintiffs car at the right rear side, and that within one to five seconds thereafter, the defendant Link’s car struck the plaintiff’s car on its left front door.

The plaintiff then called a reconstruction expert to testify and to reconstruct the accident, to the end that the expert would conclude that the defendant Rohde had struck the rear of the plaintiff’s car causing it to collide with the bridge abutment. The trial court excluded this testimony on the ground that there was an eyewitness — the defendant — Rohde— who had testified; and that the expert testimony should, thus, be barred.

The expert witness, as indicated by the offer of proof, would have testified that he had examined photographs of the plaintiff’s car which indicated damage to the rear bumper and tailgate at distances above the ground, which would suggest that the plaintiff’s car was struck by prolusions found on the front of a car similar to that driven by the defendant Rohde. He would have concluded from certain photographs, his examination of a car similar to that of the defendant Rohde’s, and from scientific principles and reasoning, that the damages to the rear bumper and tailgate of the plaintiffs car were caused by the defendant’s car hitting it prior to the time that it hit the bridge abutment.

We conclude that the trial court was correct in excluding the testimony of the reconstruction expert and in directing a verdict for the defendant. In Plank v. Holman (1970), 46 Ill.2d 459, the Supreme Court reaffirmed that reconstruction expert testimony may be admissible where it is necessary to rely on knowledge and application of principles of physics, engineering and other sciences beyond the ken of the average juror. But ® * reconstruction testimony may not be used as a substitute for eyewitness testimony where such is available.” Also see: Miller v. Pillsbury Co. (1965), 33 Ill.2d 514, 515, 516.

The course followed by the plaintiff’s car and the sequence of events were fully testified to by the defendant, as an eyewitness. The facts were not such that they required the aid of expert testimony for comprehension. (Ficht v. Niedert Motor Service, Inc. (1962), 34 Ill.App.2d 360, 371.) While it is permissible, under certain circumstances, to allow expert opinion testimony even though there is an eyewitness (see: Plank v. Holman (1969), 108 Ill.App.2d 216, 226, rev’d on other grounds (1970), 46 Ill.2d 459), the use of such testimony should be the exception and not the rule. Abramson v. Levinson (1969), 112 Ill.App.2d 42, 50.

Unless the testimony of the eyewitness is incredible, unbelievable or contrary to accepted, natural or scientific laws, or unless the testimony of an expert is found necessary, in addition to the testimony of an eyewitness, because it is essential in the fact finding process to rely on the knowledge and application of principles of science beyond the ken of the average juror, such expert testimony should be rejected. Plank v. Holman (1970), supra; Abramson v. Levinson, supra.

The plaintiffs argue that they are not bound by the testimony which they offered under section 60 of the Civil Practice Act. This contention is only partially true. A party who calls an adverse witness under section 60 is not bound to vouch for the veracity of such witness, and he may introduce competent evidence in direct contradiction to the witness’s testimony, but he is bound by the testimony of such witness to the extent that it stands uncontradicted and unrebutted. Kapraun v. Kapraun (1957), 12 Ill.2d 348, 355; In re Estate of Donovan (1951), 409 Ill. 195, 209, 210.

But such rule of law would not preclude the section 60 testimony of the defendant Rohde from being that of an eyewitness. The plaintiffs may rebut or impeach such testimony, but they must do so by other competent testimony. This section 60 testimony had the same effect as any other competent eyewitness testimony offered and admitted on behalf of either the plaintiffs or the defendant as part of their or his case. This testimony, in itself, was sufficient to render inadmissible the testimony of the expert reconstruction witness.

The plaintiffs also contend that the expert should have been permitted to testify as to the measurements on cars of the same year and model as those involved in the accident, which indicated where the damage was done and where the protrusions appeared on the respective cars. These measurements, however, were offered as a basis for the subsequent opinion which was to have been given by the expert. Even if they had been admitted for their independent value, the court would have had no occasion to rule differently than it did on the motion for a directed verdict. The evidence still would not have warranted submission of the case to the jury. Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill.2d 494, 510.

We are satisfied that there was no error in the trial which was prejudicial to the plaintiffs’ rights. Ziegler v. Smith (1967), 86 Ill.App.2d 215, 224. Accordingly, the judgment should be affirmed.

Judgment affirmed.

MORAN and ABRAHAMSON, JJ., concur.


text:
    John G. Green, Admr., Plaintiff-Appellee, v. Darrell V. Welts et al., Defendants-Appellants.
    (No. 69-191;
    Second District
    November 30, 1970.

      Howard & French, of Chicago, for appellants.
    Philip H. Corboy & Associates, Richard J. Phelan, of Chicago, for appellee.
   Mr. PRESIDING JUSTICE DAVIS

delivered the opinion of the court:

John G. Green, administrator of the estate of Billy J. Butler, deceased, brought this suit against Darrell V. Welts, the driver of the car in which Butler was riding at the time he was killed, and Englehardt, Inc., the contractor that was building a bridge at the place where Butler was killed.

The plaintiff aUeged that Welts was guilty of wilful and wanton negligence, within the meaning of the Guest Statute (Ill. Rev. Stat. 1967, ch. 95½, par. 9—201), in the operation of his car at the time and place of the accident in question, and charged that Englehardt, Inc., was guilty of concurrent negligence in creating the appearance of a road at a place adjacent to where it had made an excavation in connection with its construction work, and that these circumstances were a proximate cause of Butler’s death.

The jury returned a verdict against both of the defendants, and the defendant, Englehardt, Inc., has appealed to this court, and contends that the trial court erred in denying its motion for a directed verdict and for judgment notwithstanding the verdict.

Englehardt, Inc. contends that it was not under a duty to foresee and protect against the conduct of those, such as Welts, who proceed recklessly in the face of known danger; that the wilful and wanton conduct of Welts was not foreseeable to Englehardt, Inc.; and that Welts’ conduct was a superseding cause which relieved Englehardt, Inc. of liability.

The plaintiff urges that whether or not there was a particular duty imposed upon Englehardt, Inc. which was breached by it, and whether or not this was a concurrent proximate cause of the death of the plaintiff’s decedent, were questions for the jury to determine.

On the night in question, Welts drank two beers at the Acey-Ducey Club, between the horns of 10:15 and 11:30 P.M. He, Butler, and two others then drove to the Fireside Inn, where they drank until 1:30 A.M. Welts had two screwdrivers there. They then went to and remained at Mamma Mia’s Restaurant until about 3:00 A.M. During this time, Welts had another screwdriver. Butler left the restaurant and went out to Welts’ car to sleep.

They then decided to return to the naval base where they were stationed. Welts’ car, a 1965 M.G. Midget, with bucket seats, was designed to carry two passengers. Welts, the driver of the car, was 6'3" tall and weighed 300 pounds, and occupied one bucket seat; another passenger was in the other bucket seat, and Butler and the fourth passenger were seated in the storage area immediately behind the bucket seats.

Welts proceeded east on Belvidere Road toward its intersection with Sheridan Road. He was not familiar with the route back to the base from this point. Shortly before reaching the intersection with Sheridan Road, he stopped at another intersection with no apparent difficulty. He had been told to turn right at the stop sign at Sheridan Road. As he approached Sheridan Road, he saw the stop sign and another sign which read, “North Chicago to the Right, Zion to the Left”; he did not recall seeing the sign directly above the stop sign which read, “Jet. Illinois 42” and had arrows pointing right and left. From the record, it is not clear whether he saw the other sign in the immediate area which read “End of Route 120.”

As indicated, Belvidere Road ended at its “T” intersection with Sheridan Road. To the east of Sheridan Road, where Belvidere Road was in the process of being extended, Englehardt, Inc. was engaged in constructing a bridge over which Belvidere Road, in the future, would be extended to the east. There were two barricades, twelve feet wide and five feet high, on Belvidere Road on the east side of Sheridan Road. The barricades bore yellow and black arrows which indicated that approaching motorists had to turn. Slightly to the south of the barricades was a vacant area, and dirt from the construction work covered the curb at this point. About five to ten feet east of Sheridan Road and within this area was a twenty-five foot drop-off created by the removal of a house by Englehardt, Inc. There were no barricades at this point.

Welts testified that he saw several of the various signs referred to, including the stop sign; that he attempted to apply the brakes, including the emergency brake but they failed, and “the brakes went” when this happened; that he had not previously experienced any brake trouble; that his brakes had been examined two weeks prior to the accident; that he was travelling 15 mph, in second gear, at the time of the accident; that he had been told to turn right at the intersection; and that he began to turn right on Sheridan Road, but then stopped turning and proceeded into the dirt area across Sheridan Road.

He further testified that he mistook the distant lights on a railroad roundhouse as indicative of a road; that he, however, saw no road markings, tire tracks, curb lines or other indicia of a road on this dirt area over which he drove; and that he thus proceeded over the drop-off, resulting in the death of Butler.

It is conceded that the barricades on that portion of what would have been the extension of Belvidere Road to the east were adequate to warn motorists not to attempt to travel that roadway. However, we believe there was a duty upon Englehardt, Inc. to properly barricade, and warn of, the steep drop-off immediately to the south of the extension of Belvidere Road, which drop-off had been created by the construction work. This excavation created a dangerous condition in close proximity to Sheridan Road, which condition was not apparent to one unfamiliar with the area. A duty to warn exists where there is unequal knowledge, actual or constructive, of a dangerous condition, and the defendant possessed of such knowledge, knows, or should know that harm might or could occur if no warnings were given. Kirby v. General Paving Co. (1967), 86 Ill.App.2d 453, 457.

The mere existence of a dangerous condition in itself creates no liability. The injury must have a direct and proximate connection with such dangerous condition before liability will be held to exist. If there is an independent, superseding act by a third person, which breaks the causal connection between the dangerous condition and the injury, and which itself caused the injury, the two acts are not concurrent; and the negligence in creating the dangerous condition is not then the proximate cause of the injury. Ney v. Yellow Cab Co. (1954), 2 Ill.2d 74, 79; Brisks v. Village of Burnham (1942), 379 Ill. 193, 199.

The difficulty is not in stating the rule, rather, it is in its application. Not every intervening act sufficiently insulates the initial wrongdoer from liability. If a resulting injury is a natural and probable result of the original negligent act or omission, and is of such a character that an ordinarily prudent person ought to have foreseen as likely to occur as a result of the original negligent act, even though the precise or exact result need not have been foreseen, then the original negligent act is a proximate cause of the resulting injury. The intervention of another subsequent negligent act will not break this causal connection if the intervening act was itself probable, or foreseeable by the first wrongdoer. Ney v. Yellow Cab Co., supra; Neering v. I.C.R.R. Co., (1943), 383 Ill. 366, 38, 381.

In the case before us, we are concerned with whether or not the totality of the conduct of Welts was such that Englehardt, Inc. should, or could be charged with foreseeing such a result, or if such a result were probable. Welts testified that he started to turn right on Sheridan Road but then saw the vacant dirt area and headed there, thinking it was a roadway. It was dark; the road was wet from recent rain; Welts had been drinking; the jury might, or might not, have believed that his brakes failed; the jury might, or might not, have believed that his failure to stop and his choice of direction thereafter was the result of a foggy mind, either from the hour or from the drinking. Either through a failure of brakes or a failure to stop or slow down for other reasons, Welts could not easily or safely have negotiated the turn on Sheridan Road, and he chose an alternate path that appeared safe to him under the circumstances. It does not seem improbable to us that reasonable men might have foreseen that someone who missed stopping at the intersection in the darkness of the night might have mistaken the newly vacated area as a safe path to follow when unable to negotiate the turn into Sheridan Road in the normal manner.

We confess that were the original determination ours to make, we might not have found the acts of Englehardt, Inc. to have been a proximate cause of the death of Butler. But, that determination was not for us to make. The question for us is essentially where there is sufficient evidence to support the determination made by the jury. Welts might have been driving while intoxicated, and he might have run the stop light without having had a failure of his brakes, but the intervention of even a criminal act does not necessarily break the causal chain. Ney v. Yellow Cab Co., supra 80. In cases such as this, the intervening act is always wrongful and is not normal or reasonable conduct under the circumstances. That is the reason the question arises as to whether there is a break in the causal chain. The question of whether or not this intervening conduct was within the range of reasonable anticipation and probability is the type of factual question for the jury to determine. Questions which are composed of qualities sufficient to cause reasonable men to arrive at different results, inferences and conclusions, should not be determined as matters of law. Ney v. Yellow Cab Co., supra 83, 84; Kinsch v. DiVito Const. Co., Inc. (1964), 54 Ill.App.2d 149, 154, 155; Marquardt v. Cernocky (1958), 18 Ill.App.2d 135, 145, 146.

The evidence in this case was sufficient to present a jury question as to the liability of Englehardt, Inc. The evidence viewed in the light most favorable to the plaintiff is not such that the verdict cannot stand. Pedrick v. Peoria & Eastern RR. Co. (1967), 37 Ill.2d 494, 510. It is conceivable that the response of Welts — upon observing the situation created by Englehardt, Inc. in its construction work — in believing that the vacant area offered a safe course to foHow was probable under these circumstances, or that these circumstances should have been foreseen by Englehardt, Inc.

We believe that we have no alternative but to hold that the trial court did not err in refusing to grant the motion for a directed verdict or in refusing to grant the motion for judgment notwithstanding the verdict. Accordingly, the judgment is affirmed.

Judgment affirmed.


author: Mr. JUSTICE ABRAHAMSON

text:
    The City of Sycamore, Plaintiff-Appellee, v. James J. Gauze et al., Defendants-Appellants.
    (No. 70-57;
    Second District
    November 30, 1970.
    Edward F. Diedrich, Richard D. Larson, of De Kalb, for appellants.
    Wm. H. Edwards, Jr., Charles L. Fierz, of Sycamore, for appellee.
   Mr. JUSTICE ABRAHAMSON

delivered the opinion of the court:

This is an interlocutory appeal from various orders entered by the Circuit Court of DeKalb County culminating in an order dated March 10, 1970, that temporarily enjoined and restrained the appellants “from using, possessing or occupying for any purposes whatever” certain real estate owned by them and described as the “Hubbard” property.

The Hubbard property is owned by James and Donna Gauze and Lawrence and Lorraine Swann and adjoins another parcel owned by them known as the Weaver property. The Hubbard property is landlocked in that it has no direct frontage on a public street or right-of-way as indicated in the following diagram.

The Hubbard property is improved with a small structure which, until 1897, served as a parsonage for a church which fronted on Charles Street. Since that time it has been used as a private residence with various intervals of vacancy. Access to Charles Street was provided through a driveway over property owned by an adjoining landowner (described in the diagram as the “Hagan Property”) until August 15, 1967. On that date, the Hubbard property was again vacated until the occupation that gave rise to the instant suit.

In the interval, the driveway was closed by the new owner of the adjoining property (Alderman Charles Hagan of the City of Sycamore) and access to Charles Street cut off. A collateral suit was instituted in regard to an alleged prescriptive right to the continued use of the Hagan driveway but is not involved in this suit.

In October, 1969, the Gauze and Swanns purchased both the Hubbard and Weaver properties and shortly thereafter rented the home on the Hubbard lot to the other appellant, Larry Tinsman.

The Revised Zoning Ordinance of the City of Sycamore, enacted in 1967, provided in Section 5 (General Provisions) Paragraph 8, that:

“Every building shall face upon a public street or permanent easement of access to a public street, which easement shall have a minimum of twenty-five (25) feet.”

Although the ordinance is not clear as to whether the 25 foot minimum related to length, width or other dimension, it appears obvious that it refers to width. At the time the Weaver property was purchased, there was a short driveway of approximately 8 feet in width from Charles Street to the front of the Weaver house. Shortly after the properties were purchased, the driveway was extended the length of the Weaver property to the rear lot line and then across the Hubbard property to the house located thereon. Although the record is not clear on this point, it does appear that James Gauze was aware, as early as the third of November, that the City considered the extension of the driveway and the occupancy of the Hubbard house as unlawful. On November 11, gravel was laid on the driveway.

On November 12, the City filed its complaint which alleged that the Hubbard property did not front on a public street or have access thereto by an easement of the required size and sought both a fine for and an injunction against the unlawful use of the properties in violation of the ordinance.

The complaint also prayed that Tinsman be enjoined from using or occupying the Hubbard home. The complaint was amended on November 25 and January 19 to correct the legal descriptions therein and join additional parties (the Swanns) as defendants. On December 3, the court granted a temporary injunction restraining the various defendants from using the Hubbard property until a 25 foot access “shall be obtained” and prohibiting the use or expansion of the driveway across the Weaver property. The order further provided that Tinsman vacate the property by January 1, 1970, and a subsequent order ruled that his wife do the same by February 13. On March 2, Donna Gauze petitioned the court to vacate the temporary restaining order and alleged, among other things, that Mrs. Tinsman was about to have a baby, that they had no other place to reside and that the home was in need of fuel oil. On March 10 a further order was entered permitting the delivery of fuel but denying the petition in all other respects. This appeal followed.

Generally, a temporary injunction will be issued only where it appears that irreparable harm will occur if it is not granted prior to a final resolution of the matters at issue. (County of DuPage v. Robinette, 77 Ill.App.2d 167, 170; Triangle Sign Co. v. Randolph & State Property, Inc., 16 Ill.App.2d 21, 29.) Although the petition for the injunction alleged that the City was unable to provide the normal governmental services needed for the safety and welfare of the area, those allegations were not supported by the evidence adduced at a hearing held on November 21, 1969. It was then disclosed that the home on the Hubbard property was heated by oil, had electricity, inside plumbing and utilized city water and sewer services. It was the opinion of Alderman Schinske that a fire truck would not be able to reach the home on an eight foot driveway. Schinske admitted, however, that the fire trucks would be no wider than the dump trucks which apparently, without difficulty, had spread the gravel over the entire driveway.

The trial court indicated that the temporary order was entered to prevent a further enhancement in value of either the home or driveway until the matter could be finally resolved. It was not necessary, of course, to prohibit all use of the property whatsoever to attain that end. Under the circumstances, the issuance of the temporary injunction was not warranted and was improper.

The orders of the trial court are therefore reversed and the cause remanded with directions for the entry of an order consistent with this opinion.

Reversed and remanded.

DAVIS, P. J. and SEIDENFELD, J., concur.


author: Mr. JUSTICE THOMAS J. MORAN

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Baxter A. Green, Defendant-Appellant.
    (No. 70-66;
    Second District
    November 30, 1970.

      Edward F. Zahour, of Chicago, for appellant.
    William V. Hopf, State’s Attorney, of Wheaton, (Ralph J. Gust, Jr., Assistant State’s Attorney, of counsel,) for the People.
   Mr. JUSTICE THOMAS J. MORAN

delivered the opinion of the court:

The defendant, Raxter A. Green, was indicted and tried by the court. The first three counts of the indictment charged, respectively, attempted rape, attempt to commit indecent liberties with a child and indecent liberties with a child. The fourth count charged battery. He was found guilty of all four counts and sentenced to five years probation, with the first year to be served at Vandalia. A motion for a new trial was denied, and this appeal follows.

The defendant contends that the State’s evidence was insufficient to prove him guilty beyond a reasonable doubt; that the State erred in not attempting to introduce defendant’s photographs taken by the police; that conviction on all crimes charged is improper because all arose from the same transaction; and that the sentence was excessive.

On December 13, 1968, the defendant had two places of employment, one as a police officer in McCook, Illinois (where he was employed on the 11:00 P.M. to 7:00 A.M. shift), and the other, during the day, as an operating engineer for a contractor. The defendant was married and the father of two daughters, but separated from his wife at the time of the occurrence herein.

On the day in question, he worked until approximately 11:00 A.M., and then proceeded to a tavern where his girlfriend, the mother of the victim, had been working. The girlfriend, who was also separated from her spouse, testified on his behalf that she served him between 20 and 25 drinks of brandy and beer and that he left at 5:30 P.M. to go to the dentist. She met him at the dentist’s office and then each drove their car to a tavern where they had three drinks apiece. They then drove their own cars to their separate homes. The girlfriend lived in Downers Grove, Illinois, where the occurrence took place, and defendant had been living in McCook, Illinois.

Later, the defendant left his home with his brother-in-law. The two men made a tour of the bars in the McCook area, lastly stopping at Sam’s Hollow Tavern. The brother-in-law then drove the defendant to the apartment of the girlfriend. Defendant entered the apartment at 11:00 P.M., using his own key.

The prosecuting witness, a female child of 12 years, testified that the defendant entered the apartment while she was lying on the couch in her nightgown, watching television; that her mother was in bed in the bedroom next to the living room; that the defendant went to the kitchen and returned with a can of beer and sat next to her on the couch; that he then laid next to her and commenced kissing her on the ear; that she inquired as to why he struck her mother on a previous occasion; that an argument ensued and he demanded an apology; that she refused and he placed her over his knees and spanked her; that her mother came to the bedroom door and told the defendant to stop; that he then pushed her mother into the bedroom onto the bed; that he then ordered her into the bedroom and she complied; that he entered the bedroom while she and her mother were in bed, he completely undressed and entered the bed; that at this time she was on the side of the bed next to the wall, her mother in the middle and the defendant at the opposite side; the defendant then put his arm around both her mother and herself; he attempted to get into the middle position in bed and her mother tried to prevent his doing so; that at this time he was also attempting to lift up her nightgown; that he had one of his legs over both her mother and herself and was holding her from leaving the bed; that during this struggle, the mother was able to free herself from beneath him; that her mother fled the room; that defendant continued to struggle with her; he ripped her nightgown and pulled down her underpants; that during the struggle he slapped her on several occasions and placed his hands upon her private parts many times; that after a short period of time the police entered the bedroom. When the police arrived, the defendant was on top of the girl in a position to have sexual intercourse.

At trial the defendant testified that he had no recollection of any of the events taking place from the time he left Sam’s Hollow Tavern until he found himself in jail. Defense witnesses testified that they had seen him at various bars prior to the occurrence. Their testimony was to the effect that the defendant was in a very intoxicated condition. The defendant’s chief of police and sergeant also testified that they visited the defendant in jail shortly after his arrest and they were both of the opinion that the defendant was intoxicated.

In direct conflict to this evidence, the State offered the testimony of six police officers who had occasion to observe and talk with the defendant at the scene of arrest and at the police station. Their testimony was to the effect that the defendant’s breath had the odor of alcohol but that he was not intoxicated. They testified that his speech, walk and coherency were all normal.

The defendant’s principle defense at trial and his contention on review is that, because of the degree of his intoxication, he did not have the specific intent necessary to commit the crimes charged in the first three counts nor the general intent necessary to commit the crime of battery.

The element of specific intent may be inferred from the acts of assault as well as from words spoken during such assault. This element, like all other elements, may be gathered from the total factual situation. People v. Cozzie (1947), 397 Ill. 620, 621-622.

In People v. Evrard (1965), 55 Ill.App.2d 270, the court affirmed the defendant’s conviction of indecent liberties with a child. There, as in the Cozzie case, the defendant contended he was so intoxicated he did not know what he was doing and therefore could not form the specific intent necessary. The court, in affirming the decision, relied on the Cozzie case, and refused to substitute its judgment for that of the trial court. At page 273-274 it was stated:

# * The record supports the finding of the trial court that the defendant’s intoxication was not so great as to exclude his having the specific intent essential to the crime, and under such circumstances we will not substitute our judgment for that of the trial court.”

In the instant case, from a review of the entire record, we are of the opinion that the trial court was correct in finding the intent necessary for the crimes charged.

The defendant claims that the State erred in not introducing photographs of himself which were taken by the police. Defendant’s pretrial motion made no request for them nor, from a reading of the transcript of proceedings and the defendant’s post trial motion, is any reference made to them. The first mention of photographs appears in the defendant’s brief in this Court where it is stated that two photographs of the defendant were taken at the police station shortly after his confinement. It is now argued that the photos should have been marked for identification and presented by the prosecution so that the defendant could have been afforded an opportunity to either allow or object to their being introduced into evidence. The defendant does not argue that the photos would be beneficial nor that the failure to produce them prejudiced his case, only that all available evidence at the disposal of the State should be produced. We find no merit to this contention.

The defendant contends that conviction and sentence was in error because all the charges arose out of the same transaction.

To convict a man of both the inchoate and principal offense is prohibited by section 8—5 of the Criminal Code (Ill. Rev. Stat. 1967, ch. 38, par. 8—5.) Committee Comments on this section state:

“* 4 " By virtue of the definition of ‘conviction,’ * * * prosecution may be had for both offenses in the same trial (by separate counts) or separately. But after proceeding finally to verdict of guilty on one or both, the judgment of conviction and sentence shall be entered on only one offense.”

Later in the same Comments, in speaking of attempt, the Committee notes:

“* * * where on trial for the successful principal offense the defendant may be found guilty, convicted and punished for either the principal offense or the lesser included offense of attempt, but not for both * * *”

The purpose of section 8—5 is to prevent multiple sentences being entered on both the principal and inchoate offenses regardless of whether they run consecutively or concurrently. In People v. Ferrara (1969), 111 Ill.App.2d 472, 470, we stated:

“* # * The prohibition is against sentencing a defendant for more than one offense resulting from the same conduct, as explored in the case defendant cites, People v. Durant, 105 Ill.App.2d 216, 245 NE 2d 41 (1969). Here defendant was given a single sentence.”

At the close of the evidence, the court found the defendant guilty and entered a judgment of conviction on aU four counts charged. This was error as to the charge of attempt to commit indecent liberties with a child since it was the inchoate charge of the principal offense of committing indecent liberties with a child. This portion of the judgment must be reversed.

However, the record is clear that, at the end of the probation hearing and before sentencing, the court expressly stated that the crime being considered was that of indecent liberties with a child for which defendant could be sentenced to a minimum of four years in the penitentiary. It was at this time that the defendant was granted probation with the condition of serving one year in Vandalia. Although there were multiple findings of guilty, there was only one sentence given; thus, the prohibition against multiple sentencing for criminal acts which are from the same transaction has not been violated.

FinaUy, the defendant claims that the sentence imposed was excessive. He argues that he had no criminal record and the fact that he was a police officer prejudiced the court against him. The trial court, before granting probation, considered the facts surrounding the crime involved as weU as the defendant’s background for exemplary police service. It was because of these circumstances that probation was granted. By granting probation the court, in effect, reduced the minimum sentence (4 years) which it otherwise would have been compeffed to impose. It is obvious then, that consideration of defendant’s background did not work to his detriment but to his advantage.

The judgments of the trial court as to Counts I, III and IV are affirmed; the judgment as to Count II is reversed.

Judgments affirmed as to counts I, III and IV;

Judgment reversed as to count II.

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


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. M. C. Simmons, Defendant-Appellant.
    (No. 69-104;
    Second District
    December 2, 1970.

      John Beynon, Public Defender, of Rockford, (John F. McNamara, of Defender Project, of counsel,) for appellant.
    Philip G. Reinhard, State’s Attorney, of Rockford, (Ronald T. Wade, Assistant State’s Attorney, of counsel,) for the People.
   Mr. JUSTICE THOMAS J. MORAN

delivered the opinion of the court:

After a bench trial, the defendant, M. C. Simmons, was found guilty of armed robbery and sentenced to the penitentiary for a term of three to seven years.

The relevant facts at trial disclose that at approximately 3:30 A.M. on May 29, 1968, a Martin Oil station in Rockford, Illinois was robbed by two men. The attendant on duty at the time testified that two male negroes entered the station; that one of them, whom he identified as the defendant, grabbed him from behind and stuck a sawed-off shotgun in his back; that they demanded money and he gave them eleven one dollar bills; that they took his money changer and a bank bag containing a ten dollar check. The attendant further testified that he had an opportunity to observe the defendant and that both men were wearing leather jackets and straw hats.

Further testimony revealed that the robbers left the scene of the crime on foot; that the attendant notified the police; that information of the robbery was broadcasted on the police radio, and that the broadcast described the clothing the robbers were wearing, specifically, leather jackets and straw hats. Rockford police officers, Miller and Erickson, arrived immediately in the area and began looking for the fleeing subjects.

Approximately four blocks from the station, the two officers observed a single vehicle moving. They proceeded to follow it and, upon noticing that the vehicle was missing a license plate and rear light, the officers stopped the vehicle.

The driver alighted from the car, was asked for his driver’s license and replied that he did not have one. He was then placed under arrest for failure to have a driver’s license. Officer Erickson testified that he then noticed that the defendant, who was seated in the middle of the front seat, was wearing a brown leather-type jacket. He also testified that, from his vantage point outside the vehicle; he observed two straw hats “in the front of the car”; that he then ordered the defendant and the other three occupants out of the car and proceeded to conduct a search of the vehicle. Among other items, the officer found a bank bag and a coin changer under the front seat. These items were later identified by the attendant at trial as objects taken during the robbery.

The defendant was placed in the squad car and taken to the gas station where he was identified by the attendant as one of the participants in the robbery. The defendant was then taken to the police station where a search of his person revealed eleven one dollar bills concealed in his undershorts.

Shortly thereafter, a sawed-off shotgun was found near the vicinity of the crime and was identified by the attendant as the weapon used in the robbery.

The defendant took the stand in his own defense and testified that he participated in the robbery but denied using a weapon in the incident.

On appeal, defendant contends that his conviction should be reversed because a) the court erred in admitting into evidence articles seized by the officers from the vehicle in which he was a passenger at the time of his arrest and b) the trial court erred in admitting into evidence identification testimony by the attendant.

Defendant maintains that there was no probable cause to support an arrest or search of the vehicle, citing People v. Reed, (1967), 37 Ill.2d 91. There the defendant was stopped by police officers for the sole reason that his rear license plate was missing. The defendant produced valid identification for both himself and his vehicle. During interrogation, the defendant acted “nervous” so the officers proceeded to search the vehicle. They found heroin which was later introduced at his trial for unlawful possession of narcotics. The Court held that an arrest for a traffic violation justifies a search of the vehicle where circumstances reasonably indicate that the police are dealing not with an ordinary traffic violator, but a criminal. The Court then ruled that the “nervous” behavior of the defendant did not justify the search of his vehicle.

In the instant case the officers, having knowledge of the recent robbery in the vicinity and having a description of the suspects, arrived in the area shortly its commission. Stopping the singular vehicle in the area for a traffic violation, the officers noticed that another occupant of the car fitted the description of the robbery suspect and that there were two straw hats (mentioned in the police broadcast) in the front of the vehicle. These observations were made from outside the vehicle. Under the circumstances it would seem that there was reasonable indication to the police that they were dealing with more than a minor traffic offense. We therefore find the Reed case not controlling.

Rather, the above elements and the necessarily quick appraisal of the facts known to him, tended to give rise to reasonable cause for the officer to believe that more serious offenses had been committed by the defendant. (People v. Carter (1968), 38 Ill.2d 496, 500-501; The People v. Zeravich (1964), 30 Ill.2d 275, 277; People v. Gilyard, (1970), 124 Ill.App.2d 95. Under such circumstances the search of the vehicle, incidental to defendant’s arrest, was proper and justified for the purpose of discovering the fruits of the crime or instrumentalities used in the commission of the offense. Ill. Rev. Stat. 1967, ch. 38, par. 108—1. Also see Chambers v. Maroney (1970), 399 U.S. 42, 26 L.Ed.2d 419, 90 S.Ct. 1975.

Defendant maintains that since his arrest and detention were unlawful, evidence obtained as a result of that detention must also be deemed unlawful and inadmissible. Having ruled that the arrest and search were lawful and that probable cause was present to justify the search of the vehicle and the defendant, we need not further cover this contention.

The argument relative to his last contention is that “there is no showing that the in-court identification of the defendant by the victim was not induced by his original viewing of the defendant during the unlawful showup at the service station following the defendant’s arrest. In the absence of such a showing, it must be presumed that the in-court identification was so tainted and should have been stricken upon objection by the defense. United States v. Wade, 388 U.S. 218, 18 L.Ed.2d 1149.”

Our Supreme Court has construed the Wade decision to be applicable only to a post-indictment confrontation, which is not the situation in the case at bar. People v. Palmer (1969), 41 Ill.2d 571, 572.

Additionally, the totality of the circumstances surrounding the confrontation between the defendant and the attendant do not indicate that the post arrest identification was so unnecessarily suggestive and conducive to irreparable mistaken identification as to amount to a denial of due process. Stovall v. Denno (1967), 388 U.S. 293, 18 L.Ed.2d 1199, 1206, 87 S.Ct. 1967; People v. Palmer, supra, 573-574; People v. Speck (1968), 41 Ill.2d 177, 192-193. Within ten to fifteen minutes of the robbery, the defendant was returned to the scene of the crime. The attendant’s identification of the defendant was immediate and positive. The victim had sufficient opportunity to observe the defendant at the time of the robbery. There is no showing in the record that the police officers improperly induced the identification. While the practice of showing suspects singly to persons for the purpose of identification is not to be condoned, there was no violation of due process in the instant case. People v. Young (1970), (Ill.2d), 263 N.E.2d 72, 74-75; People v. Triplett (1970) (Ill.2d), 263 N.E.2d 24, 26-27 and People v. McMath (1970), 45 Ill.2d 33, 36-37.

For the foregoing reason, we find no error in the judgment appealed and, therefore, it will be affirmed.

Judgment affirmed.

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


text:
    Betty Webb, Plaintiff-Appellee, v. Wallace Webb, Defendant-Appellant.
    (Nos. 69-187, 70-43, 70-95, 70-109, cons.;
    Second District
    December 3, 1970.

      Peter Bianco, Jr., of Chicago, for appellant.
    Morris L. Simons, Julian R. Wilheim, of Chicago, for appellee.
   Mr. JUSTICE THOMAS J. MORAN

delivered the opinion of the court:

A divorce proceedings between the plaintiff and defendant forms the basis for four separate appeals which have been consolidated for review.

On February 15, 1965, plaintiff filed a complaint for divorce alleging defendant’s extreme and repeated cruelty. On December 28, 1966, defendant filed a counter-claim alleging plaintiff’s desertion. During the hearing, defendant withdrew his counter-claim and chose not to contest the complaint. The cause proceeded and on March 30, 1967, at the conclusion of plaintiff’s evidence, the court granted the divorce to the plaintiff, at which time the defendant was still present in court. On the following day, upon agreement of the parties and counsel, the court awarded the custody of the three children to the plaintiff. The question of support, alimony and property rights were reserved for later determination.

Pursuant to the court’s instruction counsel for the plaintiff prepared a written decree which the court signed on December 20, 1967, to be entered nunc pro tunc as of March 30, 1967. On plaintiff’s petition, the court resumed hearings on April 8, 1968, with regard to alimony and property rights.

On June 30, 1969, the defendant filed a petition under Section 72 of the Civil Practice Act (Ill. Rev. Stat. 1967, ch. 110, par. 72) to vacate the decree of divorce. The petition alleged that the decree was procured by fraud. After hearing and the submission of briefs, the court ruled that the petition was not filed within the two year limitation provided in the section. Defendants first appeal is from this order (69-187).

On January 7, 1970, a supplemental decree was entered which determined questions of permanent alimony, child support and attorney’s fees. A second appeal (70-43) is from that order. The third appeal taken (70-95) is from an order entered February 24,1970, awarding temporary alimony and child support to the plaintiff pending appeal as provided under Section 15 of the Divorce Act (Ill. Rev. Stat. 1969, ch. 40, par. 16). The fourth appeal (70-109) has been taken by the plaintiff from an order entered April 20, 1970. During oral argument, this last appeal, 70-109, was dismissed by stipulation of the parties.

Defendant contends that the court erred in dismissing his petition under Section 72 on the grounds that it was not filed in apt time. He argues that since the court entered the draft decree on December 20, 1967, nunc pro tunc as of March 30,1967, his time for the purpose of the section should commence at the time the draft order was entered.

The record discloses that the court at the close of the evidence on the divorce portion of the complaint announced its decision in the presence of the defendant. At many hearings subsequently had, the record further discloses that the defendant was completely aware that his marriage was terminated as of March 30, 1967. He was expressly reminded of this by the court on the day following the decree. The matter has been and still is in continuous litigation before the trial court.

In addition, while this matter was pending before us, plaintiff moved to dismiss defendant’s appeal No. 69-187. The motion alleges that the defendant has remarried after the decree of divorce was entered, is the father of a child born legitimately on June 23, 1970 and that he is thereby estopped from further seeking a vacation of the divorce decree. The facts of the motion are admitted by the defendant but he urges that such facts have no effect on the merits of his appeal.

We disagree with the defendant. He seeks reinstatement of a petition to vacate the decree of divorce while acting as husband and father in a subsequent marriage, lawful under the statutes of this State. The subsequent marriage was consummated in reliance upon the validity of the instant decree of divorce, the benefits of which he has accepted, and he is therefore estopped to vacate the same. The rule that a person who has accepted the benefits of a divorce decree should not be permitted to attack the same, is a rule of estoppel followed repeatedly by courts of this and many other states. The rule was recently stated by this Court in Goodman v. Goodman (1970), 125 Ill.App.2d 190.

In McDonald v. Neale (1962), 35 Ill.App.2d 140, 151, the remarriage of the petition was found to be dispositive of the controversy. As the court stated:

“* * * The rule of estoppel, founded upon the public policy of protecting the marital status and good character of innocent third persons, the legitimacy of children, and the rights and position of persons whose status has been finalized by decree of divorce, will not permit parties to assert inconsistent legal rights as petitioner has here attempted * ®

Appeals Nos. 70-43 and 70-95 concern awards given in supplemental decrees. The defendant argues that the court erred in requiring him to pay excessive amounts of money for alimony, both permanent and temporary child support and plaintiff’s attorney’s fees.

It is within the sound discretion of the trial court to determine the form and amount to be awarded for alimony and attorney’s fees. (Canady v. Canady, 30 Ill.2d 440.) The findings and judgment of the trial court will not be reversed unless found to be against the manifest weight of the evidence.

In the instant case, the court had the opportunity to observe the parties during the many sessions the parties were in court. They testified on several occasions on different days, exhibits were introduced and other witnesses testified. Hearings were had in 1967, 1968 and 1969. The court was in a position to determine the parties’ stations in life, the children’s needs, the plaintiff’s needs, the defendant’s ability to pay and the equities of the case. As stated in Lewis v. Lewis (1970), 120 Ill.App.2d 263, 269-270:

“* * * Numerous factors must be considered by the judge. The demeanor of the witness, his or her apparent honesty or lack of it and candor and forthrightness, are but a few of the elements that cannot be transcribed into a record on appeal. These intangibles are of great importance in assisting the trial judge in reaching a decision when the evidence is conflicting. It is tire trial court that observes and hears the witnesses and analyzes the testimony. It is not for a court of appeal to substitute its findings for those of the trial court unless such findings are clearly and palpably erroneous and against the manifest weight of the evidence.”

We find that the alimony and child support awarded by the trial court are not excessive and are amply supported by the evidence. The parties maintained a station in fife commensurate with living in a $65,000.00 home located on 5 acres. Five years ago, the cost of maintaining the household was approximately $20,000.00. The defendant had been paying the plaintiff $150.00 per month total since 1965. She bore the entire cost of maintaining the household, paying taxes and the mortgage. By economizing, she was spending $15,000.00 a year to maintain the household. She went to work as a school teacher and her take-home pay, after taxes, amounted to $5,112.00 per year. She also owned certain securities, by virtue of inheritance, from which she derived an annual interest income of about $4,000.00 before taxes.

The defendant is an airline pilot with a take-home pay, after taxes, of about $27,600.00 annually. At the end of 1968, he had $41,724.00 in his employer’s retirement income plan, security which could not presently be reached.

The decree awarded $200.00 per week child support and $35.00 per week alimony, a total of $12,220.00. The plaintiff received possession of the marital home and the defendant was to pay one-half of the mortgage payments, real estate taxes, insurance, maintenance and upkeep on the home, which amounted to approximately $2,160.00 per year. This totals a yearly expense for the defendant of $14,380.00.

The defendant contends that the plaintiffs personal income must be taken into consideration as well as his own. This is true and this we feel the trial court has clearly done. However, the defendant cites the formula of Harding v. Harding (1892), 144 Ill. 588 and Goldstine v. Goldstine, 25 Ill.App.2d 319, as controlling. There, allowances of alimony were made pendente lite with which we are not here concerned.

Here the trial court has found $10,400.00 per year to be a necessary amount for the support of the defendant’s children. The plaintiff has no duty to share this burden. The court further found $1,820.00 per year to be a necessary amount for the support of the plaintiff when added to her present income of about $9,000.00 per year. We find tírese amounts amply supported by the evidence and not excessive under the circumstances of this case. This holding is applicable to the permanent award for child support and alimony. The lesser award allotted by the court under Section 16 of the Act is also subject to the same conclusion.

Defendant’s final contention is that the trial court erred in requiring him to pay plaintiffs attorney’s fees. The law applicable is stated in Canady v. Canady, supra, where at page 446, the Court said:

“9 9 9 The allowance of attorney’s fees in a divorce proceedings rests in the sound discretion of the trial court, and unless such discretion is clearly abused, its exercise will not be interfered with’.”

A hearing was held on the question of attorney’s fees. The record discloses that a substantial amount of services were performed by plaintiff s counsel. Defendant has cited two cases for tire proposition that the award is not proper unless it is shown that there is an inability to pay on the part of the person for whom the fees are awarded. The cases cited do not so hold and both were referred to in the case of Quagliano v. Quagliano (1968), 94 Ill.App.2d 233, 243, as follows:

“Berg v. Berg, 85 Ill.App.2d 98, and Jones v. Jones, 48 Ill.App.2d 232, are not authority for the proposition that findings of fact relating to petitioners financial inability to pay attorney’s fees or the ability of the respondent to do so are required if an order allowing attorney’s fees is to be deemed valid, rather these cases support the conclusion that hearings should be held if requested and that findings of fact may supply deficiencies which otherwise might exist.”

We hold that the allowance of attorney’s fees herein were proper.

For the reasons stated, the motion to dismiss defendant’s appeal No. 69- 187, which was taken with the case, is allowed; appeals in cases Nos. 70- 43 and 70-95 are affirmed and appeal No. 70-109, on stipulation of the parties, is dismissed.

Judgments affirmed in cases 70-43 and 70-95;

Appeals dismissed in cases 69-187 and 70-109.

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


author: Mr. JUSTICE THOMAS J. MORAN Mr. JUSTICE DAVIS

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Charles E. Stewart, Defendant-Appellant.
    (No. 69-198;
    Second District
    December 3, 1970.

      DAVIS, J., dissenting.
    E. Roger Horsky, of Defender Project, of Elgin, for appellant.
    William Ketcham, State’s Attorney, of Elgin, (W. Ben Morgan, Assistant State’s Attorney, of counsel,) for the People.
   Mr. JUSTICE THOMAS J. MORAN

delivered the opinion of the court:

This is an appeal from a conviction for aggravated kidnapping. After a bench trial, defendant was sentenced to serve one to five years in the Illinois State Penitentiary.

The prosecutrix testified that, approximately at 3:00 A.M. while she was alone in a laundromat in the City of Elgin, County of Kane, the defendant entered, approached her and stood silently staring at her; that she became nervous and asked him to move away, but that, instead, he grabbed her arm and exhibited a knife and stated that she was going to go with him; that they went to her car, but finding it low on gas, drove to pick up his car about a block away; that he drove to a tavern and, finding it closed, drove to a cemetery located in Cook County, Illinois; that during all of this time, the defendant had the knife in his hand, but as they parked in the cemetery, he put the knife in his pocket; that they remained in the cemetery for approximately one and one-half hours, talking and petting; that the defendant eventually instructed her to disrobe; the act of intercourse occurred. Thereafter, they drove back to the laundromat, she got in her car, drove home, arriving at approximately 5:00 A.M., washed, checked on her children and then went to her aunt’s home, two doors away, and related her story to her aunt. The police were called; she related her story to the police; she was taken to the hospital, examined and returned home. Later tire same day, defendant was arrested and eventually was indicted on two counts (one, aggravated kidnapping, the other, rape). A bench trial was had, the defendant was found guilty of aggravated kidnapping, probation denied and sentence pronounced.

During the trial, the court allowed the aunt, Linda Tucker, and Elgin Police Officer Gough, to testify over the objections of the defendant. The testimony of both witnesses was a recital of what the prosecutrix had told them and related in substance almost every detail of the incident. As a matter of fact, the aunt testified to matters of an inflammatory nature which had not even been related during the testimony of the prosecutrix. The testimony was admitted by the trial judge under the spontaneous declaration exception to the hearsay rule.

The defendant contends that the testimony does not qualify under the spontaneous declaration exception. The standards for the exception are set forth in People v. Poland (1961), 22 Ill.2d 175, 181. The court stated that there were three criteria to allow a declarant’s statement to be admitted under the spontaneous exception to the hearsay rule.

“(1) An occurrence sufficiently startling to produce a spontaneous and unreflecting statement; (2) absence of time to fabricate; and (3) the statement must relate to the circumstances of the occurrence.”

It is quite clear that the statements of the prosecutrix to her aunt and the officer do not qualify as spontaneous declarations because of the second criteria. The prosecutrix did have time to fabricate, for according to her own testimony she returned to the laundromat, gathered her clothes, drove to her house, washed, and checked her children before telling her story to her aunt. The officer did not arrive until some time after this, thereby removing any possibility that prosecutrix’s statement to him could fall within the spontaneous declaration exception.

There is considerable authority to support the plaintiff’s position that the statements made by the prosecutrix to her aunt and the police officer were corroborative complaints which are limited to rape cases and distinguished from spontaneous declarations. This distinction has at times been forgotten, but the Supreme Court, in People v. Damen (1963), 28 Ill.2d 464, clearly distinguishes between the two. Corroborative complaints are allowed in rape cases; they consist of statements made by the prosecutrix at a time too remote to qualify as a spontaneous declaration. Proof of complainant’s corroborative statement should be limited to the fact that a complaint was made. The only additions allowable are those that may be required to identify the event as the one before the court.

In The People v. Davis (1957), 10 Ill.2d 430, 435, the court clearly defines the limit of such corroborating complaints.

“In rape cases, where the injured female is a witness, it is proper for her to testify that she made prompt complaint concerning the outrage which had been perpetrated upon her, and it is proper to permit the person to whom she complained to give testimony that the complaint was made, but it is not proper for such person to give the name of the accused or the details of the offense.”

In the present case, the record indicates that the testimony of the aunt and police officer were recitals of the testimony of the prosecutrix. The testimony of both witnesses would have been allowable under the corroborative complaint exception, but the amount and content of both witnesses’ testimony violated the guidelines as stated in both Damen and Davis, supra. The testimony of the aunt and police officer were improperly admitted either under the spontaneous declaration or corroborative complaint exception and constituted admission of hearsay evidence.

The problem which must be considered is the admission of incompetent evidence during a bench trial There is a presumption in Illinois law that if a trial court is the trier of the facts, it is presumed that the judge considered only admissible evidence, and that all incompetent evidence is disregarded in reaching his decision. This presumption is clearly stated in The People v. Robinson (1964), 30 Ill.2d 437, 439.

There are, however, a line of Illinois cases which, although recognizing this presumption, place a qualification on it. The People v. Reichert (1933), 352 Ill. 358, 361, states that in criminal cases, “Courts have no more right than a jury to convict the accused on incompetent evidence,” nor have they the right to override rules of evidence in the trial of the facts. The People v. Arendarczyk (1937), 367 Ill. 534, 538; The People v. Borrelli (1946), 392 Ill. 481, 492.

A case considering the remarks of counsel presents a slightly modified view of the presumption in question. The People v. Grodkiewicz (1959), 16 Ill.2d 192, 200, observed that in a bench trial the judge is presumed to disregard all evidence except that which is competent and relevant. “(U)nless it affirmatively appears that the court was misled or improperly influenced by such remarks and that they were productive of a judgment and sentence contrary to the law and the evidence, we will not reverse.”

This reasoning is followed in a line of recent Appellate Court cases: People v. Smith (1965), 55 Ill.App.2d 480, 488; People v. Jackson (1968), 95 Ill.App.2d 193, 199; People v. Moore (1968), 95 Ill.App.2d 89, 95; People v. DeGroot (1968), 108 Ill.App.2d 1.

In People v. DeGroot, supra, (at page 11), during a bench trial evidence of a prior conviction was aHowed into evidence and the reviewing court held such evidence to be inadmissible. The court recognized the presumption that the trial judge considers only admissible evidence in reaching his decision. The rule, however, is changed when it appears from the record that the inadmissible evidence was allowed by the trial court over objection. “When an objection has been made to the evidence and overruled, it cannot be presumed that the evidence did not enter into the court’s consideration. The ruling itself indicates that the court thought the evidence proper.”

From the review of the record we are of the opinion that, in this instance, the trial judge did believe the testimony of the aunt and police officer to be admissible evidence under the spontaneous declaration rule and, further, that he did rely upon such evidence in arriving at his decision.

Therefore this case is reversed and remanded for a new trial.

Reversed and remanded.

ABRAHAMSON, J., concurs.

Mr. JUSTICE DAVIS

dissenting:

I reluctantly dissent from the majority opinion relative to the effect of the admission of incompetent testimony of the police officer and the aunt of the prosecuting witness. The trial judge in this case, the senior judge of the 16th Judicial Circuit, heard the case without a jury. There is no proof in the record that he was misled or improperly influenced by this evidence, or that it was productive of a judgment against, and a sentence of, an innocent person. The presumption that the trial judge disregarded all evidence except that which was competent and relevant has not been overcome. Therefore, I would affirm.


text:
    James Stanley, Plaintiff-Appellant, v. Harold J. Denning et al., Defendants-Appellees.
    (No. 69-202;
    Second District
    December 3, 1970.

      Berry, Simmons & Coplan, of Rockford, for appellant.
    Maynard & Brassfield, of Rockford, (Robert K. Clark, of counsel,) for appellees.
   Mr. JUSTICE THOMAS J. MORAN

delivered the opinion of the court:

The plaintiff was injured on May 7, 1965, when a county road grader, operated by Harold J. Denning, turned left in front of his motorcycle.

On May 5, 1967, the plaintiff filed a three count complain for damages against the County of Boone, the Township of Flora, and Denning. The complaint alleged, in the alternative, that Denning was an employee of the two corporate defendants. No notice of injury was served upon any of the defendants. The complaint was dismissed on the basis that the plaintiff failed to comply with certain provisions of the Tort Immunity Act and this appeal followed.

On December 19, 1959, our Supreme Court rendered an opinion which has been credited with sounding the death-knell to the common law doctrine of sovereign immunity from tort liability enjoyed by local governmental units. (Molitor v. Kaneland Community Unit District, 18 Ill.2d 11.) The change in the common law rule of law prompted the response of the Legislature through a variety of enactments granting immunity to certain local governmental units under specific situations. This proving unsatisfactory, the General Assembly, in 1965, set forth a comprehensive new enactment, The Local Governmental and Governmental Employees Tort Immunity Act (Ill. Rev. Stat. 1965, ch. 85, sec. 1—101 et seq.) which defined this state’s policy in the field of tort immunity as applied to all local governmental entities and their employees.

The Legislature did not, by the Act, overrule the Molitor case, which is still the law in Illinois; rather, the Act set forth the situations and conditions excepting the local entity or its employee from liability. (See, Article II, Parts 1 and 2.)

The sections of the Act, pertinent to this appeal, are sections 8—101, 8—102 and 8—103 (Ill. Rev. Stat. 1965, ch. 85, pars. 8—101, 8—102 and 8—103) which respectively set forth that any such action against a local entity must be commenced within one year of the injury, that notice of the contemplated action be given within 6 months from the date of the injury and, that failure to serve notice shall bar the injured from further suing.

The issue presented for review is whether these provisions of the Act, as they relate to the instant case, are to be given prospective or retrospective application since the claim herein arose during the transitional period of the tort immunity law in Illinois; i.e., the time between the Molitor decision and the effective date of the new Act. (August 13, 1965.)

Plaintiff’s cause of action on the date of the occurrence was governed by the general Limitation Act (Ill. Rev. Stat. 1963, ch. 83, par. 15) which allowed suit to be brought within two years, without the necessity of filing a six month’s notice. However, defendants argue that the provisions of sections 8—101 through 8—103 of the Tort Immunity Act are to be considered as statutes of limitation, effecting procedural rather than substantive rights of the plaintiff and that such statutes have always been accorded retrospective application by the courts.

As a general rule, statutes are to be construed prospectively unless the legislative intent that they be given retroactive operation clearly appears from the express language of the act or by necessary or unavoidable implication. Retrospective legislation is not favored. (U.S. Steel Credit Union v. Knight (1965), 32 Ill.2d 138, 142.) The roots of the policy embodied in this principle run deep in the common law. Champaign County Bd. & Tr. v. Jutkins (1963), 29 Ill.2d 253, 256, 50 Am. Jur., Statutes, Sec. 478.

The is a presumption that a statute is to operate prospectively and not retrospectively. In Country Mutual Ins. Co. v. Knight (1968), 40 Ill.2d 423, 426, it was stated:

“Because the Illinois Act makes no express provision concerning retro-activity, it becomes necessary to closely scrutinize the provisions of the Act to divine, if possible, an expression of legislative intent on this issue. Any equivocal expressions of intent must, of course, be judged in light of accepted rules of statutory interpretation, two relevant rules being: (1) that statutes are presumed to operate prospectively and not retroactively, unless the statutory language is so clear as to admit of no other construction (citations omitted); (2) that where a statute is susceptible of two constructions, one constitutional and the other unconstitutional, the interpretation favoring its constitutionality will be adopted. Hogan v. Bleeker, 29 Ill.2d 181.”

Conversely, where the act requires retroactive application, it is the duty of the court to so apply it. U.S. Steel Credit Union v. Knight, supra, page 142.

Plaintiff relies upon Schear v. City of Highland Park (1968), 104 Ill.App.2d 285, decided by this court, for the proposition that all three sections in question should be given prospective effect. In that case we acted upon the notice of injury provision (sec. 8—102), but did not consider the limitation of actions (Sec. 8—101) issue raised therein. See pp. 288-289 of the opinion.

We adhere to our former decision. In Schear we found the notice provision to be substantive rather than procedural. This was based upon the fact that the six months’ notice required was a condition precedent to the cause of action. As such, it becomes an additional element necessary to be alleged and proved, the same as the other basic elements in the plaintiff’s cause of action. Failure to so allege would be failure to state a cause of action. See, Walters v. City of Ottawa (1909), 240 Ill. 259; also, Hoffman v. Evans (1970), (Ill.App.2d), 263 N.E.2d 140.

There remains the question of the limitation of actions provision. (Sec. 8—101.) It should be first noted that this section applies only to a public entity and not to its employees. It provides:

“No civil action may be commenced # ° 6 against a local entity for any injury unless commenced within one year from the date that the injury was received or the cause of action accrued.”

We agree with defendants’ contention that sections 8—101, 8—102, and 8—103 of the Tort Immunity Act are special statutes applicable to suits against public entities including counties and townships which supersede any pertinent general limitations statute thereto in effect as held in Bowes v. City of Chicago (1954), 3 Ill.2d 175, 205. We do not agree that Orlicki v. McCarthy (1954), 4 Ill.2d 342 and authorities therein cited holding limitation statutes to be procedural and retroactive in application control this case.

Neither Orlicki nor any of the cases cited by defendants involve the reduction of a time limitation affecting a common law right of action. In determining whether a statute is intended to operate retroactively, we believe that there is an important distinction between an amendment reducing an existing time limitation which affects rights, statutory in origin, as opposed to those originating in the common law. The distinction is one of the emphasis supplied in determining the legislative intent when the enactment is not expressive. As stated in Lichter v. Scher (1956), 11 Ill.App.2d 441, 454:

* * where the courts might be zealous is protecting a litigant against divestiture by statute of all or a portion of a claim firmly rooted in our concepts of justice, they will not apply the same zeal to the application of a statute of penal import, regulatory and disciplinary in nature.”

A similar direction is noted in Tatge v. Hyde (1967), 84 Ill.App.2d 310, at page 317:

“As we are dealing with a common-law right and not a statutory right, we believe the 1959 amendment should be construed to operate prospectively unless it clearly appears from the express language of the amendment that the legislative intent was to give the amendment retroactive operation * *

The reasons for a strict judicial attitude construing limitations provisions retroactively as procedural is understandable when a plaintiff’s right to sue arises from legislation and not from any other source. The legislature which gives a right not existing at common law and provides the remedy for its enforcement may more easily be found to have made the decision to take it away. However, there is a contrary emphasis applied to a right which is firmly established in our concepts of justice, embodied in the common law and in the constitution “Every person ought to find a certain remedy in the laws for all injuries and wrongs which he may receive in his person * * Constitution of the State of Illinois, Art. 2, sec. 19.

We have no doubt that a statute shortening the limitation period fixed by previous existing statutes may be applied retroactively even to existing common law causes of action, subject to the qualification that there must be a reasonable time permitted to enforce an existing cause of action. Although it could be concluded here that plaintiff had a reasonable time to enforce his cause of action subsequent to the Tort Immunity Act, a retroactive construction would also include cases in which a reasonable time would not have existed. Since no effective date is included in the Act, it is reasonable to assume that the legislation is not intended to be retroactive. Tatge v. Hyde, 84 Ill.App.2d 310, supra, at page 317; Schear v. City of Highland Park, 104 Ill.App.2d 285, supra, at page 290.

Absent a clearly expressed intention to apply Tort Immunity Act to pre-existing cause of action, we hold the legislation to be prospective. This application is also preferred since it does not defeat the substantial purpose of the legislation, while protecting rights which ought to be an appropriate subject of protection. Hogan v. Bleeker (1963), 29 Ill.2d 181, 189.

We are of the opinion that the Legislature, having chosen to meet the problems of governmental tort immunity through a completely new Act, indicated its awareness of the chaotic situation born of piece-meal treatment and that the very intent of the Act was to set forth the specific applications and exceptions which could thenceforth be applied to all governmental entities and their employees.

We therefore find the plaintiff’s cause of action was not subject to the provisions in question; the trial court’s order is hereby reversed and this cause remanded for further proceedings.

Reversed and remanded.

DAVIS, P. J. and SEIDENFELD, J., concur.