author: GOLDENHERSH, P. J.

text:
    Leo Gans, Plaintiff-Appellee, v. Marlowe Pen Co., an Illinois Corporation, Swiss Harmony, Inc., an Illinois Corporation, Raymond-Richards Company, an Illinois Corporation, King-Richard Company, a/k/a Dudley Sales Corporation, an Illinois Corporation, Piedmont Products, Inc., an Illinois Corporation, Leo R. Slaton, Harriet Lilley, Adele E. Slaton, David Koolish, and Leo R. Slaton, d/b/a Dudley Sales Company, Defendants, Leo R. Slaton and King-Richard Company (Now Known as Swiss Harmony, Inc.), Appellants. Leo Gans, Plaintiff-Appellee, v. Swiss Harmony, Inc., an Illinois Corporation, Marlowe Pen Co., an Illinois Corporation, Raymond-Richards Company, an Illinois Corporation, King-Richard Company, a/k/a Dudley Sales Corporation, an Illinois Corporation, Piedmont Products, Inc., an Illinois Corporation, Leo R. Slaton, Harriet Lilley, Adele E. Slaton, David Koolish, and Leo R. Slaton, d/b/a Dudley Sales Company, Defendants, Leo R. Slaton and King-Richard Company (Now Known as Swiss Harmony, Inc.), Appellants.
    Gen. No. 52,479.
    First District.
    April 25, 1969.
    Rehearing denied and supplemental opinion August 1, 1969.

      Robert A. Sprecher, of Chicago, for appellants.
    Sonnenschein, Levinson, Carlin, Nath & Rosenthal, of Chicago (Edwin A. Rothschild and Joel F. Henning, of counsel), for appellee.
   GOLDENHERSH, P. J.

Defendants, Leo R. Slaton, hereafter called Slaton, and Swiss Harmony, Inc., formerly King-Richard Company, appeal, and plaintiff cross-appeals from the decree of the Circuit Court of Cook County entered in plaintiff’s shareholder’s derivative actions seeking an accounting of funds allegedly misappropriated, and other relief.

The defendants, Marlowe Pen Co., hereafter called Marlowe, and Swiss Harmony, Inc., hereafter called Swiss, are Illinois corporations of whose outstanding capital stock plaintiff owns respectively 16⅔% and 12½%. Slaton owns 50% of the outstanding shares of stock of Marlowe, and he and his wife own 50% of the outstanding stock of Swiss. The remaining shares of Marlowe are owned by David Koolish, and Ralph L. Stolkin, and the remaining shares of Swiss are owned by David Koolish, A. L. Koolish and Ralph L. Stolkin.

King-Richard Company, hereafter called King-Richard, is an Illinois corporation, all of whose outstanding shares are owned by Slaton. Following the sale of certain of its assets, Swiss Harmony, Inc. changed its name to Swiss Liquidating Co. and King-Richard thereupon amended its articles of incorporation and changed its name to Swiss Harmony, Inc.

Plaintiff brought two actions alleging various acts of misappropriation and mismanagement. The complaints are lengthy and the specific allegations will be discussed only to the extent necessary to this opinion. The two cases were consolidated and referred to a Master-in-Chancery. The Master took testimony, and in a Final Report and Supplemental Report reported to the court his findings of fact and conclusions of law. The court considered and ruled upon exceptions to the Reports, and entered the decree from which the appeal and cross-appeal are taken.

The evidence shows that Marlowe was in the business of selling bail-point pens, and Swiss manufactured and sold various types of novelty merchandise. These corporations, King-Richard, and several other enterprises, were all operated out of the same office and warehouse facilities. The record contains much evidence of various transactions between these companies, and the same firm of certified public accountants prepared financial reports and tax returns for all of them.

In his complaint plaintiff alleges that the business and affairs of Swiss “have been wholly managed, dominated and controlled” by Slaton, and one of the principal charges of misconduct on the part of Slaton is that he wrongfully acquired the assets of Swiss at a price far below their value, and transferred them to King-Richard. The evidence with respect to this transaction shows that at a meeting of the shareholders of Swiss, over plaintiff’s objection, a resolution was adopted that the corporation be liquidated and dissolved, and providing for the sale of its inventory, furniture, fixtures and goodwill at public auction. It further provided a method of advertising the sale, and an upset price of 80% of the book value of the assets sold.

Plaintiff, in a letter dated a week before the date set for the auction, demanded the sale be postponed until certain steps were taken which he deemed necessary if the sale were to result in an adequate price for the property.

Slaton ran a small advertisement in the Tribune announcing the sale of inventory, fixtures, machinery and goodwill of Swiss, and a public preview for a period of four hours on the day preceding the sale. The auctioneer testified that he did not inventory, evaluate or examine the assets. No bidders appeared except Slaton, and he bid in the property for the sum of $145,000.

An auctioneer, called by plaintiff, testified as to the usual steps taken by an auctioneer in this type of sale, and testified that the auction was inadequate and improper under accepted practices in Chicago. He stated that if his firm were handling the sale the fee would be 5% of the total amount realized and he would have recommended that $3,500 to $5,000 be spent in advertising.

The evidence shows that on February 7, 1958, the date of the sale Slaton valued the assets of Swiss as follows:

Exhibits in evidence show that Swiss' was on a December 1-November 30 fiscal year, and in financial statements prepared at the end of its fiscal years preceding the sale, the property in question was valued:

Paul Schneider, a certified public accountant, testified that in each year the inventories were valued at the lower of cost or market. He defined “market” as being the cost of replacing merchandise, assuming purchase from normal sources in normal quantities, but not in excess of what could be realized from its sale. The valuations were primarily determined by Mr. Slaton, but plaintiff, and David Koolish, frequently participated in the discussions.

Vincent G. Matranza, a bookkeeper employed by Sla-ton in various of his enterprises, testified that the inventories were prepared under his supervision, and although most valuations were made by Slaton, some were determined by him.

Fred F. Lang, a certified public accountant, testified that at plaintiff’s request he made a comparison of certain inventory prices as shown on an inventory taken as of July 31, 1957, and one as of February 7, 1958. The comparison was limited to the items which appeared in both inventories, and was done by extending the quantities shown at February 7, 1958, at the unit prices shown on the inventory of July 31, 1957. An exhibit prepared by the witness shows the comparisons made, and plaintiff’s exhibit 6 shows that the valuation in the later inventory is $42,073.76 lower than in the earlier. The witness, admittedly, had no knowledge of the depreciation and obsolescence factors pertinent to this type of inventory.

Norman Zuckerman, an associate of Mr. Lang’s firm, testified that he had examined King-Richard’s books, and in August 1959 King-Richard sold to Selcol-Limited at a price of $10,000 a set of tools, dies, fixtures and molds for manufacture of Roundelays, one of the novelties formerly manufactured by Swiss. King-Richard’s books showed that this item was treated as income, and there was no corresponding write-off or charge-off for the period between February 7, 1958 and the date of the sale. He could not state whether these items were owned by King-Richard prior to February 7, 1958, and could not say whether they were acquired from Swiss.

The testimony of George J. Collinet, a former employee of Swiss, employed by King-Richard as a designer, testified that much of what was sold to Selcol was formerly used by Swiss. He testified with respect to items which were formerly manufactured by Swiss, and which King-Richard continued to manufacture.

The plaintiff testified that he examined an inventory prepared as of December 31, 1957, and checked with Matranza in an effort to determine the replacement cost of the finished goods and other items. He found from an examination of cost records that Mr. Slaton’s valuations were understated. Plaintiff’s exhibit 20 is a comparison of inventory values, purporting to compare the inventories of November 30 and December 31, 1957. It shows the items, the number on hand, Slaton’s valuation, and “Replacement Cost as Determined by Leo Gans.”, The valuation as determined by plaintiff was $227,281.76. Plaintiff testified he had never been engaged in the novelty business, and had no knowledge of that type of business.

Slaton testified that the merchandise assembled and sold by Swiss was of the “novelty” type, and some items were highly successful while others were failures. He stated that the major part of the business was done in the last few months of the year, and unsold merchandise was frequently worth less than its cost. He testified that King-Richard still had, unsold, many of the items acquired from Swiss. He pointed out a number of allege^ errors in plaintiff’s computations and cost figures.

The Master found:

“20. That the sale of Swiss Harmony, Inc., on February 7, 1958, was made in accordance with the Business Corporation Act of the State of Illinois and in accordance with the resolution of the corporation, and was a legal and proper sale.”

The circuit court found the assets, on the date of the sale had the following values:

Inventory of goods.....................$232,562.89

Tools, dies and molds................... 10,000.00

Automobile ........................... 4,146.02

Other fixed assets...................... 14,193.75

Prepaid insurance...................... 1,708.22

Goodwill, trademarks, etc................ 1,000.00

Total $263,610.88

and the decree provides:

“C. Slaton and New Swiss shall jointly and severally account to Swiss, and Swiss shall have and recover from said defendants jointly and severally, for the fraudulent acquisition of Swiss assets described in paragraph 6 hereof, the sum of $118,610.88.”

With respect to this portion of the decree Slaton and King-Richard contend (a) the sale was accomplished in accordance with section 72 of the Illinois Business Corporation Act; (b) the sale price was fair, reasonable and more than adequate; (c) laches applies with respect to the sale of the assets; (d) the Master’s findings and conclusions are entitled to weight and the court erred in holding the sale of the Swiss assets was fraudulent.

Plaintiff contends that the evidence affirmatively supports the court’s finding that the sale was fraudulent.

Citing Winger v. Chicago City Bank & Trust Co., 394 Ill 94, 67 NE2d 265 and Shlensky v. South Parkway Bldg. Corp., 19 Ill2d 268, 166 NE2d 793 plaintiff has correctly stated the rule that directors of a corporation have the burden of overcoming the presumption against the validity of a transaction in which they acquire corporate assets. He argues that it was not an arm’s length transaction and Slaton was the controlling corporate officer of Swiss.

Where, as here, the trial court did not approve the findings of the Master-in-Chancery, the rule governing our review is stated in Uksas v. Zelensky, 21 Ill2d 303, 172 NE2d 359, wherein, at page 310, the Supreme Court said:

“In determining the propriety of that decree we must consider the weight to be given the findings of the chancellor, and whether they were supported by the evidence. While it is generally agreed that where the chancellor has heard the evidence his findings will not be disturbed unless they are clearly and manifestly against the weight of the evidence (Larson v. Glos, 235 Ill 584, 588; Jones v. Koepke, 387 Ill 97, 107) where, however, as in the instant case, the master alone heard the evidence and the chancellor adjudicated the cause on the ‘frozen record,’ there is no such unanimity of expression in the case law. Under these circumstances, some decisions have applied the manifest weight rule if the chancellor approves the findings of the master (Schmalzer v. Jamnik, 407 Ill 236; Mruk v. Mruk, 379 Ill 394, 401; Klekamp v. Klekamp, 275 Ill 98, 102; McGlaughlin v. Pickerel, 381 Ill 574, 583; Pasedach v. Auw, 364 Ill 491, 496); while others insist that all the facts are open for consideration on review, particularly if the chancellor rejects the master’s findings. (Stasch v. Stasch, 355 Ill 581, 583; Jones v. Koepke, 387 Ill 97, 107; Vesolowski v. Vesolowski, 403 Ill 284; Zil-vitis v. Szczudlo, 409 Ill 252; Chechik v. Koletsky, 311 Ill 433; Kosakowski v. Bagdon, 369 Ill 252, 258; Kelly v. Fahrney, 242 Ill 240; Fairbury Union Agricultural Bd. v. Holly, 169 Ill 9; Thatcher v. Kramer, 347 Ill 601.) These decisions reiterate the rule that the master’s report, while prima facie correct, is of an advisory nature, and that all the facts in a chancery case are open for consideration in the first instance by the trial court, and, in case of an appeal, by the reviewing court, where the ultimate question is, ‘Was the decree rendered by the court a proper one under the law and the evidence ?’
“Inasmuch as the chancellor herein did not hear the evidence and rejected the master’s findings, we find apposite the comment of the court in the Kosakowski case at p 285: ‘The master, who saw and heard the witnesses testify, found for appellant. The chancellor, without hearing any evidence, sustained exceptions to the master’s findings of facts and entered a decree for appellee, Bagdon. While the rule is that the master’s findings on controverted facts do not carry the weight of a jury verdict in a suit where trial by jury is a matter of right, yet such findings are advisory (citation), and thus are entitled to much consideration. The chancellor, in this case, had no better opportunity to judge the credibility of witnesses than has this court on appeal, and all the facts are open for our consideration. (Citations.) ’
“In the light of this prevailing rule, it is our duty to make our own independent determination of the facts, giving due consideration to the findings of the master, who heard and saw the witnesses, since the factual conclusions here depend upon an appraisal of the credibility of conflicting testimony.”

There is no question that Slaton was the active operating head of Swiss, and he and his wife owned 50% of its stock, but under the provisions of section 72 of the Business Corporation Act the sale of its corporate assets required approval of the holders of 66%% of its outstanding shares. There is no evidence that the shareholders who voted with Slaton in favor of the resolution were in any manner coerced by him, nor is there any evidence of wrongdoing on their part. The evidence adduced by defendants shows, prima facie, that the sale was authorized in accordance with the provisions of section 72 of the Business Corporations Act, and conducted in compliance with the resolution of the shareholders. The valuations placed on the inventory and fixed assets are consistent with those in the year end financial statements as of November 30, 1957.

The only testimony of value adduced by plaintiff is that of Lang and himself. Lang’s testimony is entirely consistent with Slaton’s explanation of the decline in value of the merchandise at the end of the season as compared to July 31, 1957. Plaintiff’s testimony is not supported by any records, and does not even attempt to establish the market value of the inventory at the time of sale.

There is no evidence as to the value assigned to the tools, molds and dies in determining the “fixed assets” in the various statements, and no evidentiary basis for treating them as a separate item, as was done by the trial court.

We hold, therefore, that the evidence does not sustain the findings of the circuit court with respect to the valuations and this portion of the decree (Paragraph C) is reversed.

Because of the conclusion reached, we do not consider the other contentions of the parties with respect to this portion of the decree.

The decree provides inter alia:

“B. Slaton shall account to Marlowe, and Marlowe shall recover from Slaton, for misappropriation of Marlowe assets described in paragraph 5 hereof, the sum of $43,559.44.”

This figure is comprised of five items (Court’s Findings Paragraph 5(a) through 5(e)), the largest being the sum of $33,750 (Court’s Findings Paragraph 5(c)) paid in salary to a Dr. Joseph Stolkin over a four-year period. It is plaintiff’s theory that Dr. Stolkin performed no services for Marlowe, Slaton wrongfully caused the salary to be paid, and should be held accountable therefor. The record reflects that Dr. Stolkin died prior to the commencement of the hearings before the Master.

The Master found that the salary paid to Dr. Stolkin was paid with the full knowledge and consent of all of the shareholders. The decree finds that the Master erred in failing to surcharge Slaton therefor.

The testimony shows that Dr. Stolkin was a physician, father of Ralph Stolkin, and father-in-law of Joseph Koolish.

Paul Schneider, the certified public accountant, testified that his firm had been the accountants for the “Koolish group” which consisted of plaintiff, David Koolish, A. L. Koolish and Ralph Stolkin. When this group agreed with Slaton to organize Marlowe and Swiss, the Koolish group was to take 50% of the stock, and Sla-ton 50% ; Schneider and his partners were retained as the certified public accountants for these companies, and were to be “the watch dogs” for the Koolish group; they prepared financial statements for the various companies at least three times a year and plaintiff received copies of each statement. During that period Mr. Schneider also prepared the audits for the Lemarge Company of which plaintiff was president and saw plaintiff frequently. Mr. Schneider testified further that frequently, shortly after statements were mailed out, plaintiff would ask him questions about various entries, and had asked specifically about Dr. Joseph Stolkin’s salary.

From our review of the evidence, we hold that the Master’s finding is sustained by the evidence, and this portion of the decree (Paragraph 5(c)) is reversed.

The trial court found that the Master erred in failing to surcharge Slaton for misappropriation of $6,131.24 (Paragraph 2(e)) for “Bribes wrongfully paid out of Swiss funds” and $3,330.98 (Paragraph 5(b)) which the court found was “Cost, less depreciation, of Marlowe automobile wrongfully given as a bribe.”

The testimony shows that Swiss had been attempting to sell a novelty type of decanter to Jim Beam Distillery. Slaton was in contact with two employees of Beam, one of whom left Beam and became an official of another distillery. Through this individual, his employer bought decanters totalling approximately $1,250,000. The Marlowe automobile referred to was a Cadillac which was given this man. He was also paid $5,000 in cash, and given a ring and another gift, worth in the aggregate, $131.24. Another former Beam employee was paid $1,000 as the result of the transaction.

The greater part of the argument of both parties on these items is based on whether the so-called “bribes” were properly deductible business expenses. Slaton argues that although both Swiss and Marlowe were the subjects of detailed Internal Revenue Service audits the expenditures were not challenged, and plaintiff has cited cases where such claimed deductions were disallowed.

The only testimony with respect to the transactions is that of Slaton, and plaintiff has adduced no evidence that the payments and gifts were bribes, rather than the expense of promoting a sizeable sale of Swiss’ merchandise. The sales were made in 1955 and 1956 and the record shows that plaintiff was a director of Swiss until April 1, 1957. The cash payment was made in November 1956, while plaintiff was a director. It cannot be determined from the evidence when the gifts of the Cadillac and the ring were made, or whether the respective equities of Swiss and Marlowe were adjusted in one of the many settlements of intercorporate accounts shown in the record. Slaton did not, without the support of someone in the Koolish group control either company. The evidence shows affirmatively that plaintiff is not an innocent lamb shorn of his fleece by the shears of corporate intricacies, but an experienced sophisticated businessman who, in addition to operating a company of his own, had participated with the other parties in a number of transactions. It would require a greater degree of naivete than this court will confess to reach any conclusion other than plaintiff and the other shareholders knew and approved of the payments and gifts made, and the quid pro quo received therefor.

The surcharges based upon Paragraphs 2(e) and 5(b) of the decree are, therefore, reversed.

The court found that the Master erred in failing to surcharge Slaton for misappropriation of corporate funds of Marlowe with respect to the following:

“5(a) Depreciation, operating expense and loss on sales of Marlowe automobiles, representing Sla-ton’s personal use thereof, wrongfully charged to Marlowe . . . $5,920.97.”

In the Thirty-Fifth finding of his Final Report, the Master found that Marlowe had purchased successively three Cadillac automobiles, which were used for the combined business of Swiss, Marlowe and Dudley Sales Corporation, the third one having been given away in connection with the decanter sales above discussed; that Slaton used the automobiles for calling on customers, and the expenses of purchase and operation were proper business expenditures except for $4,001.98, being the amount disallowed by Internal Revenue Service, and charged to Slaton.

The trial court did not state the reasons for its decision to overrule the Master’s finding, but plaintiff argues that “it is apparent that Marlowe, which simply sold ballpoint pens, had no need of a Cadillac and that the automobile charged to it was actually for the use of other companies, such as Swiss and Dudley.”

Slaton testified that during the period involved he owned and maintained an automobile for his personal use, and the company-owned automobiles were used in connection with the performance of his duties for the various corporations and Dudley Sales Company.

A stipulation filed by the parties reflects many inter-corporate transactions, some of which Schneider testified were adjustments of overhead and expenses. From our examination of the evidence we are of the opinion that the evidence supports the Master’s finding and there is no evidentiary basis for the surcharge, and the surcharge based upon Paragraph 5(a) of the decree is, therefore, reversed.

With respect to the surcharge shown in Paragraph 5 (e) of the decree, the evidence supports the Master’s findings in Paragraph 17 of the Conclusions in the Final Report, and the court erred in ordering the surcharge.

The surcharge ordered in Paragraph B of the decree, based on Paragraphs 5(a) through (e) of the court’s findings, is therefore affirmed in the amount of $154.00, and as to the remainder thereof, is reversed.

We have examined the evidence with respect to the items surcharged in Paragraphs 2(a), (b), (c), (d) and (f) and conclude that there is an evidentiary basis for the findings and conclusions of the Master. There is no evidence which refutes Slaton’s explanation that items (b), (c) and (f) were expenses properly incurred in connection with corporate business, and no evidence that the corporation was not reimbursed for item (d), a portion of which was an expenditure for Koolish and Stolkin.

With respect to item 2(a) plaintiff argues that Swiss made loans on which it was not paid interest and it should, therefore, not have paid interest to Dudley Sales Company, Slaton’s individually owned company. There were no loans shown to have been made by Swiss to Slaton or any of his enterprises, and the fact that Swiss, for business reasons, made some interest free loans, does not support the contention that Slaton was required to lend money to Swiss without interest. The evidence shows clearly that the shareholders of Swiss and Marlowe, including plaintiff, were paid interest for loans made to the corporations, and there is no evidentiary basis for the surcharge.

We have reviewed the record with respect to the findings of the Master which were approved by the circuit court (Court’s Findings Paragraph 1(a) through 1(h)), several of which are the subject of Slaton’s appeal and plaintiff’s cross-appeal. Discussion of them is of no prec-edential value, and it suffices to say that the findings are supported by the evidence and will not be disturbed.

The surcharge ordered in Paragraph A of the decree, based on Paragraphs 1 and 2 of the court’s findings, is therefore affirmed in the amount of $5,284.12, and as to the remainder thereof, is reversed.

For the reasons herein set forth the decree of the Circuit Court of Cook County is affirmed in part and reversed in part and the cause is remanded to the Circuit Court of Cook County with directions to enter a decree, and for such other proceedings as are consistent with this opinion.

Decree affirmed in part, reversed in part and remanded with directions.

MORAN and EBERSPACHER, JJ., concur.

SUPPLEMENT TO OPINION UPON DENIAL OF PETITION FOR REHEARING

In his petition for rehearing plaintiff, correctly points out that mere compliance with formal statutory requirements do not shield a wrongdoer from liability for fraud. In the discussion in the first full paragraph on page 9 of the opinion the court, inadvertently, failed to state that the evidence, prima facie, also met the requirement that defendant prove the sale price to have been fair, reasonable and adequate.

Despite the contention made in the petition, this court did not reach or decide the question of whether the $5,000 payment to Brown was a gift or a bribe, or as the petition terms it, “legitimate promotion expenses.” A determination of this issue was not necessary to the decision of the case and any further discussion of the nature of the transaction would be dictum.

The court is not aware of any innuendoes with respect to the plaintiff, and the statement of which plaintiff complains is fully supported by the record.

The petition for rehearing is denied.

       “New Swiss” is Swiss Harmony, Inc., formerly King-Richard Company.


source: Caselaw Access Project

author: MR. JUSTICE DEMPSEY

license: Public Domain

text:
    Martin J. Hedrich, Jr., et al., Plaintiffs-Appellants, v. Village of Niles, a Municipal Corporation, Nicholas B. Blase, Edward Berkowsky, Santo S. Bruno, Angelo Marcheschi, Keith W. Peck, Kenneth Schell, and Robert H. Wente, as Members of the Village Board of the Village of Niles, Illinois, the Evanston Trust and Savings Bank, a Corporation, as Trustee Under Trust No. 632, and J. Emil Anderson & Son, Inc., a Corporation, Defendants-Appellees.
    Gen. No. 52,783.
    First District, Third Division.
    May 15, 1969.
    Rehearing denied August 11, 1969.

      Plack & Wrobel and John P. Murray, of Chicago (John P. Murray, of counsel), for appellants.
    Ancel, Stonesifer & Glink, and James G. Sneider, of Chicago (Louis Ancel, Marvin J. Glink, and James G. Sneider, of counsel), for appellees.
   MR. JUSTICE DEMPSEY

delivered the opinion of the court.

This is a zoning case. The property in dispute was formerly known as the Tam O’Shanter Country Club and consists of approximately 123 acres of land situated in the Village of Niles. The property, which was zoned for single-family residences, was purchased for about $3,250,000 in July 1965 by one of the defendants, J. Emil Anderson & Son, Inc., a firm specializing in industrial land development. Anderson immediately petitioned the Village to rezone the property from residential to limited manufacturing use.

The petition was referred to the Plan Commission of the Village of Niles. The commission held seven public hearings on the request, the first of which was in September 1965. In the Spring of 1966 Anderson amended the petition to exclude 37½ acres of the property from the requested reclassification. At the last hearing, near the end of May 1966, the commission decided to recommend the rezoning. The board of trustees of the Village adopted the recommendation in late August 1966 and amended the Village’s 1961 zoning ordinance accordingly.

The plaintiffs, homeowners in the Village, filed their complaint in this action the middle of the following September. The Village and Anderson answered. The pleadings were typical of zoning cases. The plaintiffs attacked the amendment on the grounds that it was arbitrary and capricious and bore no reasonable relation to the public health, safety and welfare. They prayed for a judgment declaring the amendment invalid and for temporary and permanent injunctions restraining the Village and the Anderson Company from developing the property for industrial purposes. The defendants denied that the amendment did not bear a reasonable relationship to the general welfare. They asserted that the rezoning was compatible to the established uses in the immediate vicinity, and that the development proposed for the property would bring increased employment to the citizens of the community and tax benefits to the Village without the corresponding increase in municipal burdens which would be incidental to a residential classification.

The property is rectangular in shape, extending lengthwise from north to south and is bisected by Howard Street, an east-west thoroughfare. Thirty-seven and one-half acres lie north of Howard Street and eighty-five acres south of it. It is bordered by a forest preserve on the west, a portion of the forest preserve and an area zoned for retail business on the north, Caldwell Avenue on the east and by a four or five-acre manufacturing district and Touhy Avenue on the south. The greater portion of the east side of Caldwell, opposite the property, is zoned and used for industrial purposes; the lesser portion, consisting of eleven residential lots, is zoned and used for single-family homes. One of these homes is occupied by plaintiff — the only plaintiff who owns a home adjacent to the subject property. The southernmost industry on the east side of Caldwell abuts the north side of this home.

After a trial which included the testimony of both lay and expert witnesses, the court found that the plaintiffs had failed to establish that the amended ordinance was invalid in any respect. The court declared that the highest and best use of the property was for limited manufacturing and that the ordinance was a proper and valid legislative enactment.

The issue on appeal is not typical of zoning cases. The plaintiffs do not challenge the decree on the ground that it is contrary to the evidence or not in conformity with established principles of zoning law. They challenge it on the ground that the court erred in refusing to consider another issue which entered the case and in rejecting evidence in support of this issue: that the Village Plan Commission recommended, and the Village trustees adopted the zoning amendment in exchange for promises, concessions and contributions from the Anderson Company.

The plaintiffs did not raise this issue in their complaint. It came into the case, surprisingly enough, through Anderson’s answer. Anderson denied that the entire property was to be developed for industrial purposes; it affirmatively alleged that the 37½ acres north of Howard Street were to be developed as a public golf course. Also, as an affirmative defense, it stated that in between the plan commission’s first and last public hearing Anderson conducted negotiations with the Niles Park District which resulted in an understanding that the park district could purchase the 37½ acres for construction of a nine-hole golf course; that after this agreement was reached, park district officials appeared before the plan commission and recommended that Anderson’s application to reclassify the property south of Howard Street be approved.

In his opening statement, the defendants’ attorney elaborated on the agreement with the park district. He said that after it was made, the plan commission approved the proposed rezoning and recommended it to the board of trustees of the Village. The first witness for the defendants, the president of the Anderson Company, supplied the details of the agreement. He testified that the park district and the Village of Niles were given a seven-year option to buy the 37½ acres; that if the district did not exercise the option within six and one-half years the Village had the right to do so within six months after the district’s option expired. He said that the purchase price was $1,300,000, fifty percent of which was to be financed by the sale of revenue bonds; that Anderson had agreed to find a purchaser for the bonds and, after the expiration of ten years, to donate $550,000 of the purchase price back to the district. He further said that if the district did not exercise its option at once the agreement provided for Anderson to develop the 37½ acres as a public golf course — the cost of which was estimated at $175,000 — without impairment of the right of the district or Village to exercise the option within the seven-year period at the original purchase price.

In addition to this arrangement, the witness testified that his company donated an acre of land to the Village for a fire station, gave the Village $75,000 for street improvements, agreed to pay for a traffic engineering survey and, at the cost of nearly $10,000, provided a water main which would increase the water pressure of the homes on the east side of Caldwell.

On cross-examination, counsel for the plaintiffs asked whether the agreement in reference to the 37½ acres would have been entered into if the zoning had not been changed from residential to manufacturing. The defendants’ counsel then stated that he would stipulate that the agreement was conditioned upon the zoning change.

Thereafter, the position of the parties changed abruptly. The plaintiffs, who had not raised the point in their complaint, seized upon the gifts to the Village as an additional reason for challenging the rezoning; and the defendants, who had been making capital of their generosity, quickly backed away from the issue and objected when the plaintiff attempted to expand it.

The plaintiffs offered in evidence the minutes of the meeting of the Village trustees at which the zoning amendment was adopted. The minutes indicated that the agreements pertaining to the golf course and the land for a fire station were discussed by the trustees before they voted on the amendment. One of the trustees said they “were probably getting the best deal they could.” The minutes were not received in evidence. The plaintiffs offered to prove, through the testimony of the Village’s corporation counsel, that the minutes would reveal that Anderson’s promises were conditioned upon the zoning change and that Anderson had demanded that the change be made within forty days of its oral agreement with the park district. The court noted that the issue had not been raised in the plaintiffs’ complaint and sustained the defendants’ objection.

As the trial came to an end the plaintiffs again pressed the issue but the defendants objected that it had not been raised in the pleadings. The plaintiffs’ attorney pointed out it had been raised at the trial and that the complaint could be amended. The trial concluded with an offer of proof by the plaintiffs. Offered into evidence were the minutes of the last meeting of the plan commission at which the agreement was reported by one of the defendants’ attorneys who told the commission: “The entire contract and transaction with the Park District is conditioned upon the remaining 85 acres being rezoned for M-Limited Manufacturing within 40 days from yesterday.” The minutes contained statements by the chairman of the commission that Anderson had agreed to make a cash contribution of $550,000. The minutes also showed that the commissioners understood that if the park district did not exercise the option to purchase, the same option and terms would be available to the Village itself. Objections to the offer of proof by the defendants were sustained. Once again the court stated that the issue of an improper exchange was not before it, that the only issue under consideration was the constitutionality and reasonableness of the amended ordinance and that this was the only issue it was going to pass on.

Despite the plaintiffs’ failure to allege, or to amend their complaint to allege, the agreement between Anderson and the park district and the benefit to the Village from this and the other concessions and gifts, the issue was joined at the trial. Normally, the plaintiffs would be in no position to question the effect of the contingent agreement on the validity of the amended ordinance for a party cannot have relief under proof without appropriate allegations. Burke v. Burke, 12 Ill 2d 483, 147 NE2d 373 (1958) ; Consoer, Townsend & Associates v. Addis, 37 Ill App2d 105, 185 NE2d 97 (1962). However, parties may form their own issues during a trial, and an objection that an issue has not been raised in the pleadings may be deemed waived if the party objecting has himself introduced evidence on the subject. Head v. Wood, 20 Ill App2d 97, 155 NE2d 348 (1959); McKinney v. Nathan, 1 Ill App2d 536, 117 NE 2d 886 (1954). In McKinney the court said:

“The parties may, by the introduction of evidence or their conduct in the trial, waive formal pleadings or form their own issues on the evidence introduced, and they may voluntarily present under the evidence issues not presented by the pleadings. An objection that a certain matter is not an issue under the pleadings or that it is not denied or properly denied may be waived by a party where he introduces or brings out evidence bearing on the subject, or tries the case as if the matter were not in issue.”

By introducing the subject in their answer and by developing it during the direct examination of their first witness, the defendants waived the deficiency in the plaintiffs’ complaint.

The defendants accuse the plaintiffs of attempting to inject into the case an issue that arose only tangently in the trial court and argue (1) that the theory upon which a case is tried cannot be changed on appeal and (2) that an issue not considered by the trial court cannot be raised for the first time on appeal. These arguments have no merit in view of the development and joinder of the issue in the manner we have described. While it is true that an issue not considered by a trial court cannot be raised on appeal, the very thrust of this appeal is the refusal of the trial court to consider the issue.

Equally unimpressive is Anderson’s argument that it has acquired a vested right in the amended zoning ordinance because of expenditures made in reliance on the amendment. It includes among these expenditures the interest on the money it spent to buy the property and the taxes it paid prior to the adoption of the amendment. Such payments may have been in anticipation of the amendment — they obviously were not in reliance upon it. However, the bulk of the expenditures were made in improving the property and in developing it for industrial purposes after the amendment was adopted and at the time of the trial these expenditures amounted to several hundred thousand dollars. There also was testimony that various-sized parcels of land had been sold to industrial concerns, which in some instances had begun or had completed the construction of buildings. These expenditures and sales undoubtedly complicate the present situation but they were made in the face of the plaintiffs’ expeditious action for injunctive relief which was filed just twenty-four days after the amended ordinance was passed. The expenditures and sales were not brought about by the plaintiffs — indeed, they tried to stop them. The plaintiffs did not mislead Anderson, cause it to change its position or spend its money. What has developed is Anderson’s own responsibility and the blame cannot be laid at the plaintiffs’ doorstep, as the defendants try to do in their brief, because the plaintiffs’ prayer for a prohibitory injunction was not acted upon immediately.

More impressive, however, is the defendants’ argument that courts have no right to inquire into the motives of the Village trustees in passing the ordinance. Ordinarily, courts cannot inquire into the reasons motivating a legislative body in enacting zoning regulations and may determine only if the legislative body had the authority to pass the ordinance and, if so, whether it is arbitrary and unreasonable or bears a reasonable relation to the public health, safety and welfare. 2700 Irving Park Bldg. Corp. v. City of Chicago, 395 Ill 138, 69 NE 2d 827 (1946). This long-established rule must, however, be balanced against a more recent one: that zoning ordinances should not be subject to bargaining or contract. In Treadway v. City of Rockford, 24 Ill2d 488, 182 NE2d 219 (1962), in remanding a zoning case for a new trial, the reviewing court went out of its way to comment on an issue that had not been raised either in the trial court or on appeal. The court stated:

“All the parties have argued as if this were an ordinary amendment rezoning property from one classification to another within the framework of the general zoning scheme set forth in the original ordinance. The ordinance in question is not, however, an unconditional amendment rezoning the property from a residential to a local business classification. It is conditional upon the owner’s entering into a covenant setting forth in some detail the nature of the improvements to be erected on the property. Such conditional amendments have not fared well in the courts of other jurisdictions, and have frequently been invalidated either because they introduce an element of contract which has no place in the legislative process or because they constitute an abrupt departure from the comprehensive plan contemplated in zoning.”

Although the amendment in the present case was not contract zoning in the sense that it was conditioned upon an agreement as to the future use of the rezoned property, it was conditioned upon an agreement for the future use of another parcel of land owned by the same applicant and upon other agreements and donations which inured to the benefit of the Village. In accepting these donations and entering into or approving these agreements the trustees of the Village undoubtedly did what they believed was best for the whole community, but it places them in the questionable position of bartering their legislative discretion for emoluments that had no bearing on the merits of the requested amendment.

Based on the limited evidence heard by the trial court, we find no error in its decision that the amended ordinance was valid. There is a presumption of validity in favor of a zoning ordinance and the party attacking it must overcome the presumption by clear and convincing evidence. This the plaintiff did not do. While the location and size of the property, the neighborhood surrounding it, and the streets separating it from dissimilar uses would have justified the residential classification if the Village had adhered to it, there was equal justification for the limited manufacturing classification. The property is bordered on one side and part of another by a forest preserve which serves as a protective zone between it and the homes to the west and north; on the other sides the predominate use is industrial and business. The residences facing the property on Caldwell Avenue appear to be of fine quality but they comprise only a small percentage of its total frontage.

We do find error, however, in the court’s refusal to consider the issue which surfaced during the trial. This issue must be determined by the trial court before we can consider it. The cause will be remanded so that this can be done — with directions to permit the plaintiffs to present appropriate evidence on this issue, to consider the defendants’ stipulation that the rezoning was conditioned upon the agreement with the park district and to determine what relationship, if any, the evidence and the stipulation bear to the ordinance’s validity.

Reversed and remanded with directions.

SULLIVAN, P. J. and SCHWARTZ, J., concur.


author: MR. PRESIDING JUSTICE DRUCKER

text:
    Albert C. Jones, Plaintiff-Appellee, v. S. S. and E. Corporation, Defendant, and Robert P. Tonietto, Defendant-Appellant. Robert P. Tonietto, Third-Party Plaintiff-Appellee, v. Dave Gambino, Third-Party Defendant-Appellant.
    Gen. No. 51,972.
    First District, Fourth Division.
    June 11, 1969.
    Rehearing denied September 8, 1969.

      Hinshaw, Culbertson, Moelmann & Hoban, of Chicago (Leonel I. Hatch, Jr., and D. Kendall Griffith, of counsel), and Jerome M. Brooks and Gilbert Gordon, of Chicago (Gilbert Gordon, of counsel), for appellants.
    Epton, McCarthy, Bohling & Druth, of Chicago (Bernard E. Epton, Edward A. McCarthy and Donald Segal, of counsel), for appellee.
   MR. PRESIDING JUSTICE DRUCKER

delivered the opinion of the court.

The case in chief was brought to recover damages occasioned by an alleged violation of the Structural Work Act by defendants Robert P. Tonietto and S. S. and E. Corporation. A third party action was brought by Robert P. Tonietto, a general contractor, against Dave Gambino, a subcontractor. In the case in chief, after a jury trial, a judgment of $50,000 was entered against both defendants. In the third party action, heard after the case in chief, the jury found in favor of third party defendant Gambino, but the court entered a judgment notwithstanding the verdict in favor of third party plaintiff Tonietto for $50,000.

Defendant Tonietto appeals from the judgment in the case in chief, and third party defendant Gambino appeals from the judgment notwithstanding the verdict entered in the third party action. S. S. and E. Corporation has not filed an appeal.

Plaintiff sued for injuries sustained on a building project for S. S. and E. Corporation while employed by Gam-bino, a subcontractor for Tonietto, the general contractor.

Defendant Tonietto raises three points on appeal: (1) that the court should have directed a verdict in favor of defendant or entered a judgment in his favor notwithstanding the verdict because defendant was not in charge of the work and because there is no adequate evidence of a violation of the Structural Work Act; (2) that the verdict is contrary to the manifest weight of the evidence; and (3) that the court erred in giving an instruction that the jury may consider a violation of a provision of the Health and Safety Act requiring the use of ladders on certain types of scaffolding. No question is raised as to the amount of the damages.

Third party defendant Gambino raises the single point on appeal that the trial court improperly invaded the province of the jury by arrogating to itself the prerogative of weighing the evidence despite the fact that there was substantial and credible evidence in the record to support the jury finding.

CASE IN CHIEF

Evidence

Testimony of Albert C. Jones, plaintiff:

He was in Chicago working as a bricklayer for Gam-bino on March 8, 1960; he had been a bricklayer for fifteen years. On that date he was constructing a wall and chimney in a building on Laramie Avenue in Cicero. He was working on a scaffold of patent scaffolding which was constructed for masonry use with steel and planks.

The scaffolding is made of pipes and cross braces to hold it together, and is overlaid with planks (2 x 8, or 2 x 10) on which the masons walk and stand to do their work. There were scaffolds five feet high on the west wall and ten feet high on the south wall. The planks on the west scaffold were bearing on the planks of the south scaffold; and the plaintiff was working on the south scaffold.

At 4:40 p. m. (quitting time) plaintiff started off the higher scaffold. In getting down plaintiff laid his level on the planking of the higher scaffolding, came down to the lower scaffolding and reached back to get his level. He then walked to a corner of the lower scaffolding, stepped on a plank, which broke, and he fell. The plank broke at a bearing where the planks on the south wall scaffold crossed the planks on the west wall scaffold.

As he lay on the floor beneath the broken scaffold he noticed that it was the plank on the lower scaffold that had broken and allowed various items to fall upon him; he also noticed that there was not another steel jack under the middle of the scaffold to help carry the weight. (A jack is a perpendicular rod that helps support planks.)

The general contractor on the job was Tonietto who was generally at the job several times a day. The witness saw no ladders anywhere on the job. He had nothing to do with the erection of the scaffold. It was erected by two laborers whom he did not supervise.

When plaintiff fell he landed on his foot doubling his leg up under him and then falling onto his back; bricks and other items fell off of the scaffold onto him. The bricks were about 2¼ x 8", 4 x 8" bricks (common bricks). He immediately noticed pain in his left foot and called for help.

The scaffold was erected on the subflooring, and he fell onto the subflooring from the scaffold. Subflooring is usually pine or other material of three and one-half or four foot widths; it has larger boards than the hardwood flooring. He did not observe that one of the legs of the scaffold went through the flooring.

Generally in the building of a scaffold there is a climb space left on the inside away from the wall; however, if five planks are put on the scaffold, as was done in the instant case, then the climb space is covered up.

The scaffolding that was on the job on March 8 was the same scaffolding that had been in use for the previous four weeks. He does not know if it is custom and usage to leave planking on a five foot level rest on the planking leading to a scaffold supporting the ten foot level. It was not done on the other scaffolding on this job or on the twin job next door. The scaffold on the building next door had an extra jack for support under it.

The upper length of scaffolding had only been in place about an hour and a half before the accident. It was constructed after he finished bricking the wall in order for him to get up to the chimney; until that time it had been a five foot section plus the legs. The lower scaffold on the west wall was built while he was on the ten foot scaffold working on the chimney; he did not notice the absence of the jack at that time.

The usual way to get up onto a scaffold is to use ladders. On this job he got to the ten foot level by climbing to the five foot level and then climbing to the ten foot level. (There was a model on which this was demonstrated.) The sides of the scaffold are built like a ladder and are used for climbing.

Ladders come in all different lengths. For a ten foot scaffold there should be a twelve or fourteen foot ladder which would stand out on the floor, leaning like a stairway for a person to walk up.

He does not remember testifying on a deposition that the scaffold next to the chimney had four boards on it. He does not remember telling a private investigator that the scaffold belonged to Mr. Gambino and is one normally used on his jobs; he did say that there was nothing wrong with the scaffold other than the board breaking.

He did not jump from the ten foot section to the five foot section.

Testimony of Robert P. Tonietto, defendant, called by plaintiff as an adverse witness under Section 60 of the Civil Practice Act:

He was in business on March 8, 1960, as Gregg Builders. He did remodeling and building and was involved in the construction of a building at 3220 South Laramie at that time in the capacity of general contractor. He had been hired by S. S. and E. Corporation some time prior to the beginning of the year.

The agreement was to construct two three-flats; reverse twins. Plans were drawn up by a draftsman, Dino J. Carradi. He did not work on the actual drawing. Car-radi worked for the architectural firm of Novy & Company; the witness paid Carradi to do the plans and Carradi never met with anyone from S. S. and E. Corporation regarding them.

Witness was associated with S. S. and E. Corporation in the capacity of Secretary. Concerning the building in question, he met with Carradi in 1959 while the plans were being drawn up; it was some time before he was hired as general contractor.

Gambino was one of about eighteen subcontractors that he used on this job; there was an oral agreement with Gambino. On March 8, 1960, the deck or ceiling of the garden apartment was on, and they were working on the second deck. On that day just the masonry trade was working there. He visited the job site every day and sometimes two or three times a day. He was on the job site on the day of the accident but left before the accident occurred. On that day he observed scaffolding in the area where the masons were working, along the south and west walls; there was a double section along the south wall where the chimney was. He never got closer than 70 feet to the scaffolding that day.

There were ladders in the job area, and there was a mason ladder. This is a carpenter made (rather than store bought) ladder and is made from two by fours nailed across each other. He does not remember where in relation to the scaffolding the ladder was; he had seen it in several locations around the job site at different times. The carpenter’s ladder was not on the scaffolding. He never discussed the erection of scaffolding with anyone. He does not know if there is a rule or regulation regarding scaffolding to the effect ladders are supposed to be provided for workmen to get up and down from the scaffold. He never discussed any such rule with Gambino. He never inspected the scaffolding on any of his jobs over the preceding fifteen years.

He would discuss the plans with each subcontractor as necessary. He made some changes in the plans himself. He never discussed any changes directly with the workmen. He never inspected any of the equipment used by the trades, nor did he discuss the equipment being used by Gambino. On March 8 he did not notice anything on the scaffolding which he considered faulty.

He noticed damage to the subflooring a day or two after the accident. There was a hole in the subflooring, in the southwest corner, near one of the legs of the scaffolding. The hole was four or five inches square. The hole was called to his attention by someone else; you could see the hole from about ten feet away if you looked right at it.

He looked at the work of each subcontractor after it was finished to determine if it was according to the plans and specifications. Other than this checking to see if the work was done according to specifications, he had no other supervisory capacity on the job.

Testimony of David Gambino, witness for plaintiff:

He has been a mason contractor since 1959. On March 8, 1960, approximately five men were working for him. This included the plaintiff who had been in his employ for six to eight months.

He saw the plans and specifications of the building during the bidding stage. When there was masonry work to be done either Tonietto notified him or he would go past the building and observe for himself. The plans and specifications were given to him prior to the commencement of construction and were in his possession through the construction of the building; no changes were made on the masonry work at the time it began.

On March 8 scaffolding was put up for the masons to work on; it was put up by the laborers employed by the witness; none of the masons participated in the erection of the scaffolding. Scaffolding was going up throughout the day. In the morning the scaffolding of the south wall was completed; it was patent metal scaffolding which ran the entire length of the wall and was spanned by two by ten planks. It was built one level at a time, and this was a four or five foot level.

The next time he saw the scaffolding was late in the afternoon. At that time some work had been completed and part of the scaffolding had been dismantled. There was a double section left alongside of the chimney. A double level is two sections of patent scaffolding, one section on top of the other, joined by metal pins, and the top section spanned by plank. The top section was between eight and ten feet high. The scaffolding east of the double section had been dismantled. There was still scaffolding along the west wall and the north wall. This was patent scaffolding spanned by two by ten planks and was four or five feet high. The scaffolding along the west wall would have to run from the north wall to the south wall; it did not actually meet the scaffolding along the south wall. There was an open space along the south wall; the plank did not extend all the way to the south wall.

At the southeast corner there was a section of scaffolding next to the double section which was being used for work on the chimney; then there was scaffolding across the west wall which joined the scaffolding at the north wall. The planks from the west wall overlapped the planks from the north wall. Four planks from the west wall overlapped the planks on the south wall.

At about 3:30 that afternoon he saw bricks and an occasional mortar board on the west scaffolding; there were approximately four or five piles of bricks totaling forty to fifty bricks in a pile. A brick could weigh from three and one-half to four and one-half pounds. The planks holding the material were eight and sixteen feet in length. The planking and the scaffolding are owned by the witness.

At 3:30 all of the bricklayers except plaintiff had gone over to the north wall; plaintiff remained on the double scaffold to finish work on the chimney. There were ladders about the job site. There was one between the first and second floors of the building; there was a ladder owned by the witness which was kept in a truck which was left on the job site. The witness did not see his ladder on either the first or second floor where the work was going on.

He was on the job site when plaintiff had his accident. It was 4:30 (quitting time) and he had just sent Tony Duska up on the double scaffolding to help plaintiff set the chimney cap. He observed plaintiff after his fall. He was in the southwest corner facing southeasterly; he was holding one leg just above the ankle. The scaffold planks were all disarranged and one plank was broken; the northeast leg of one section of scaffolding was driven through the subflooring right in the corner. There were two pieces of broken plank but he could not tell what position the plank had been in before the accident; the other planks ran diagonally from the scaffolding to the floor. The scaffolding went through the subflooring up to the first rung, a distance of about fourteen or fifteen inches.

Four planks were used on this scaffolding on both the south and west walls. The planks were banded with metal strapping; they are cut diagonally across the corner, at about a three inch diagonal, to avoid the sensitivity of cracking at the corners, and then again they were strapped with metal banding. The planks were made of red fir which is better than construction grade lumber (generally spruce or cheaper varieties).

On March 8, 1960, he was not aware of a rule regarding the use of ladders on scaffolding; he later became aware of a rule which required that ladders are to be provided for scaffolding constructed in more than one level.

It is customary for the workers to ascend the scaffolding on the inside of the scaffold section; it would be impossible to do so over the outside because of the projection of the plank beyond the scaffolding.

Just before the accident he was looking up at Duska and giving him some instruction to remove the remaining bricks on the scaffold. Duska was on the east end of the ten foot level near the second five foot section. He kicked a brick off the scaffold which hit Clyde Mosher in the head. At about that same time he noticed plaintiff coming over to the south end of the scaffold and getting in a crouched position, ready to jump from the higher to a lower scaffold section. He had tools under his arm and he jumped toward the lower section. Just as he jumped is when Mosher was hit by the brick, and the witness’ attention was drawn away from plaintiff. He then heard a crash in the corner; the scaffolding came tumbling down and he found plaintiff underneath. The entire scaffold did not collapse, it was just in the corner; thus there were remaining piles of brick on the scaffolding after plaintiff fell. He did not see any forty or fifty bricks around plaintiff after he fell.

The leg of the scaffold was driven through the sub-flooring about fourteen or fifteen inches. The hole in the subflooring could not have been there before the accident or the scaffold would not have stood erect. Plaintiff had the level tucked under his arm and he had the remainder of his tools (trowel and hammer) in his hand.

There was a truck in which the scaffolding was brought to the job and there was a ladder in that truck. The truck is normally parked at the job site and left there as long as the scaffolding is there. The ladder was half of an extension ladder and was approximately twelve feet high; it was a commercially built ladder as opposed to a carpenter’s ladder. The ladder was on the truck before this job; it was part of the standard equipment. This ladder was never used to ascend or descend from the scaffold. He does not know where on the other scaffold plaintiff landed after his jump.

He saw plaintiff jump; and the last time he saw him plaintiff was in mid-air. Plaintiff placed his hand on the plank and leapt, and at that instant the witness’ attention was drawn by the groans of Mosher who had been hit by a brick.

Testimony of Tony Dinito, witness for the defense:

He is an assistant claims manager for Pecan Van Lines, a trucking company. He did investigative work back in 1961. He recalls a two page signed statement taken from the plaintiff. The statement says that the scaffold belonged to Mr. Gambino and was one used normally on the jobs. The statement says there was nothing wrong with the scaffold other than the board breaking; and that defective boards are usually taken out before they break.

He does not remember the particular statement of plaintiff. All he remembers is what he recalls from the statement.

Testimony of Robert P. Tonietto, a defendant:

He is the same Robert P. Tonietto who testified earlier. He did not provide any of the equipment used by the subcontractors on the job in question. He did not retain any agreement with the subcontractors that gave him the right to tell them how to do their work. He did not have any written contracts with anybody. In his oral contracts he retained the right to tell them how to do the work. He did not retain the right to tell them how to erect their equipment on the job.

The contract with the mason contractor called for the latter to provide all labor, materials and equipment. He does not have any knowledge of the manner in which masonry scaffolds were constructed.

He has been in the contracting business for fifteen years and did have occasion to observe scaffolding during that time. He never discussed compliance with any safety rules and regulations with Gambino or any other subcontractors. There was no provision in the verbal agreement concerning anything that he could do if he saw any workman doing anything which he believed to be unsafe.

He could not tell the subcontractors how to do their work, the manner in which they would do it. But he could tell them something regarding the way they were doing the work as it applied to the plans and specifications.

Opinion

Defendant’s first contention is that the trial court should have granted his motions for directed verdict or for judgment notwithstanding the verdict. He argues that the evidence is insufficient to prove that he was in charge of the work, that there was any violation of the Structural Work Act, or that he violated the Act.

To sustain defendant’s contention that he is entitled to a directed verdict or a judgment notwithstanding the verdict, it is necessary that this court find that “all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict could stand.” Pedrick v. Peoria and Eastern R. Co., 37 Ill2d 494, 510, 229 NE2d 504.

The relevant provision of the Structural Work Act, Ill Rev Stats 1959, c 48, § 69, states:

Any owner, contractor, sub-contractor . . . having charge of the erection, construction, repairing, alteration, removal or painting of any building, . . . shall comply with . . . [the provisions of the statute].

Defendant contends that several uncontroverted facts establish as a matter of law that he was not in charge of the work in connection with which plaintiff was injured. Defendant points out that the plaintiff was injured while doing masonry work which had been subcontracted to Gambino; that the scaffold upon which plaintiff was injured was constructed by Gambino; that defendant did not supervise or direct Gambino or his employees; and that his only duty was to see that the work was done according to plans and specifications and that the job was going according to schedule. The argument is that by subcontracting the work, the defendant rid himself of any “in charge of the work” status and that he did nothing thereafter to become “in charge of the work.”

In Larson v. Commonwealth Edison Co., 33 Ill2d 316, 211 NE2d 247, the Illinois Supreme Court was faced with a very similar set of circumstances. In Larson, defendant was the owner of property upon which it was having repairs and additions made. It let many contracts for the work through a firm of consulting engineers. One of the contracts was let to Paschen (plaintiff’s employer) who negligently constructed a scaffold from which plaintiff fell and was injured. The evidence showed that six employees of defendant, all members of its station construction department, were on the job at all times. They exercised no control over the work but merely inspected to see that the terms and specifications were complied with. Their inspection did not extend to the kind or safety of scaffold employed. Representatives of defendant’s safety department also visited the site periodically; and while their primary concern was the safety of defendant’s operating personnel still on the premises, they could only make but not enforce safety suggestions to the contractors and their employees.

In that case the court specifically declined to limit the meaning of persons “in charge of the work” to the person or persons who actually erect a scaffold. The court further found error in the trial court’s attempt to define “in charge of the work” as “retaining control and supervision of such work being performed by [subcontractor] .” The court stated at page 321:

“While it may be conceded that some of the decisions in this jurisdiction involving the Scaffold Act appear to have equated ‘having charge’ with ‘supervision and control’ in varying degrees, it is our opinion the language of the statute, and the legislative intent it reflects, do not permit the conclusion that the terms are the inflexible and unbending legal equivalent of the other. The term ‘having charge of’ is a generic term of broad import, and although it may include supervision and control, it is not confined to it. . . . Thus, while the actual exercise of supervision and control over the work and the persons doing it, or the retention of the right to so supervise and control, may be factors bearing on the ultimate factual question of whether an owner is ‘in charge,’ they are not necessary or conclusive factors, nor is either made a sine qua non for liability under the statute. Rather, consistent with its beneficient [sic] purpose of preventing injury to persons employed in the extra-hazardous occupation of structural work, the thrust of the statute is not confined to those who perform, or supervise, or control, or who retain the right to supervise and control, the actual work from which the injury arises, but, to insure maximum protection, is made to extend to owners and others who have charge of the erection or alteration of any building or structure.”

In the instant case where defendant admits that he was frequently on the premises; where, as in the Larson case, he was to see that the work proceeded on schedule and according to the terms and specifications of the contract (even though there was testimony that he exercised no control over the work); where he had the authority to make some changes in the plans; and where his inspections did not extend to the kind or safety of the scaffold employed; we hold that, under the rule of Larson, the evidence does not so overwhelmingly favor defendant that no contrary verdict could stand, nor is the jury’s finding that defendant was “in charge of the work” against the manifest weight of the evidence on this issue.

Defendant next contends that there was no adequate evidence of a violation of the Structural Work Act which provides in pertinent part that all scaffolds:

“. . . shall be so erected and constructed, placed and operated as to give proper and adequate protection to the life and limb of any person or persons employed or engaged thereon . . . [Ill Rev Stats, 1965, c 48, § 60].”

In the instant case there is evidence that the board did break while being used by plaintiff; that a jack which was used in a similar scaffold in an adjacent building was not used on the scaffold in question; and that there was no real ladder on the scaffold. We therefore cannot find that all the evidence, viewed most favorably to the plaintiff, overwhelmingly favored defendant. Pedrick v. Peoria, supra.

Nor can we so find as to defendant’s claim that there was no evidence as to defendant having “wilfully” violated the Structural Work Act. The absence of a ladder and the failure to support the scaffold with another jack were evidence of conditions that should have been discovered by the exercise of reasonable care. Old-ham v. Kubinski, 37 Ill App2d 65, 88, 185 NE2d 270; Kennedy v. Shell Oil Co., 13 Ill2d 431, 439, 150 NE2d 134.

In view of all the foregoing, we believe the verdict was supported by evidence and that it is not against the manifest weight of the evidence.

Defendant finally contends that the court erred in giving Plaintiff’s Instruction No. 17. It stated:

“There was in force in the State of Illinois at the time of the occurrence in question a certain Statute commonly known as the Health and Safety Act which provided, in part, as follows:
“Supervision. The erection, use, alteration, and removal of scaffolding and staging shall be done under competent direction and supervision.
“Where Required. Where a runway, stairway, or safe means of access to a scaffold is not provided, a ladder shall be provided for all such scaffold platforms more than six (6) feet above the ground or floor.
“Placement. Ladders to be used continuously at one place shall be securely fastened at the top and bottom. The top shall extend not less than thirty-six (36) inches above the platform or floor served and the landing rung shall be as close to the level of the floor or platform as possible.
“If you decide that a party violated the Health and Safety Act on the occasion in question, then you may consider that fact together with all the other facts and circumstances in evidence in determining whether or not a party wilfully violated the provisions of the Structural Work Act.”

The operative language of the Health and Safety Act (Ill Rev Stats 1965, c 48, §§ 137.1-137.21) is as follows:

“It shall be the duty of every employer under this Act to provide reasonable protection for the lives, health and safety of all persons employed by such employer. The Industrial Commission shall, from time to time, make, promulgate and publish such reasonable rules as will effectuate such purposes. [Emphasis added.] Ill Rev Stats, 1965, c 48, § 137.3.”

Defendant argues that he did not employ the plaintiff and thus the Health and Safety Act does not apply to him vis-a-vis the plaintiff.

The language of the Act is clear; the Act is only meant to apply to “employers.” Thus in the instant case the Act would be relevant to the relationship between plaintiff and third party defendant Gambino, but it does not apply to the relationship between plaintiff and defendant. Plaintiff also refers us to the rules of interpretation promulgated under the authority of Section 3 of the Health and Safety Act, Ill Rev Stats 1965, c 48, § 137.3, and argues that they require a liberal interpretation of the scope of the safety rules. However, since, as we have explained, the relationship of Tonietto and plaintiff does not come within the coverage of the Act, and since the scope of the Act cannot be expanded by the rules of interpretation promulgated under it, this argument is unavailing. The instruction was therefore prejudicial to defendant. See Creamer v. Rude, 37 Ill App2d 148, 156, 185 NE2d 345.

Plaintiff argues, though, that the safety code of the Health and Safety Act is admissible for purposes of establishing the standard of care in the community, citing Darling v. Charleston Community Memorial Hospital, 33 Ill2d 326, 211 NE2d 253. In that case the court held that the introduction into evidence of regulations, standards and by-laws performed the same function as did evidence of custom. The court said at page 332:

“This evidence aided the jury in deciding what was feasible and what the defendant knew or should have known. It did not conclusively determine the standard of care and the jury was not instructed that it did. [Emphasis added.] ”

Since we were not briefed on the subject, we make no finding as to whether evidence of standards under the Health and Safety Act would have been admissible as such. See dicta in Clements v. Schless Const. Co., Inc., 91 Ill App2d 19, 26, 234 NE2d 578, and Larson v. Commonwealth Edison Co., 33 Ill2d 316, 211 NE2d 247.

This instruction was also prejudicial because it advised the jury to consider whether defendant violated the Act and then instructed them to take that violation into account in their resolution of the principal case. The form of this instruction as given was not consistent with a theory of standards of care; rather, it was predicated on a violation of a statute. Since we have ruled that the defendant could not have violated the Health and Safety Act, the instruction was certainly prejudicial to the defendant and a new trial must be granted. We thus reverse the judgment and remand the case in chief for a new trial in a manner not inconsistent with this opinion.

Third party defendant has appealed the entry of a judgment notwithstanding the verdict against him on the ground that the trial court improperly invaded the province of the jury by arrogating to itself the prerogative of weighing the evidence despite the fact that there was substantial and credible evidence in the record to support the jury finding. Since we have remanded the case in chief for a new trial, there may be no remaining basis for the third party action as it is dependent upon the outcome of the case in chief. See Bohannon v. Ryerson and Sons, Inc., 15 Ill2d 470, 475, 155 NE2d 585. Further, the error in the case in chief which is the basis for a new trial may have infected the third party action (the record from the case in chief was incorporated in toto into the third party action). Therefore, we are also reversing the judgment in the third party action and remanding it for a new trial.

Reversed and remanded for new trials.

ENGLISH and STAMOS, JJ., concur.

       Section 5, “Interpretation of Rules.”
      “Rule 1. General Interpretations: the following interpretations shall apply in connection with all rules made by the ‘Industrial Commission’:
      “A. These rules shall be interpreted liberally so as to effectuate their intent of providing reasonable protection to the lives, health and safety of employees within a scope authorized by statute.”


author: MR. JUSTICE McCORMICK

text:
    William J. Suwalski, Plaintiff and Counter-Defendant, Appellee, v. Arthur J. Suwalski, Defendant and Counter-Plaintiff, Appellant.
    Gen. No. 51,134.
    First District, Second Division.
    April 1, 1969.
    Supplemental opinion June 17, 1969.

      Basil N. Pyshos and Edward L. Stepnowski, of Chicago (Edward L. Stepnowski, of counsel), for appellant.
    Stanley Werdell, of Chicago, for appellee.
   MR. JUSTICE McCORMICK

delivered the opinion of the court.

On December 1, 1965, the Circuit Court of Cook County entered a decree imposing a trust in favor of William Suwalski on title to property in Chicago. Arthur Suwalski appealed in the Appellate Court, which court initially affirmed but subsequently reversed the trial court’s decree upon a rehearing of the case. (88 Ill App2d 419, 232 NE2d 64.) The Supreme Court granted William Suwalski’s petition for leave to appeal and reversed the Appellate Court’s judgment on rehearing, affirming the trial court’s decree insofar as it made a finding that a resulting trust had arisen in William Suwalski’s favor. The decision in the Supreme Court is reported in 40 Ill2d 492, 240 NE2d 677.

In the trial court Arthur Suwalski had counterclaimed in two counts. The first count was dismissed since it was waived under Supreme Court Rule 341 (e) (7). The second count had not been considered in the Appellate Court because consideration of that count was not necessary under the Appellate Court’s disposition of the case on rehearing. However, since the judgment was reversed on rehearing, and since Arthur Suwalski’s position had not been briefed or argued in the Supreme Court, the Supreme Court remanded the case to the Appellate Court for consideration of the merits of Arthur Suwalski’s second count of his counterclaim. The Appellate Court was instructed that if it found that Arthur Suwalski’s contention did not prevail, the decree of the Circuit Court should be affirmed.

The Supreme Court stated in its opinion that there was no dispute in the facts and set them out as follows: William Suwalski and his now deceased wife agreed to buy a home for $15,500. They were going to pay $4,500 of their own funds and pay the balance of $11,000 by a mortgage in Community Savings and Loan Association. The association, however, informed William Suwalski that because of his advanced age it could give him a loan for only $9,500, and would require a co-signer on the note. Arthur Suwalski, son of William Suwalski and his wife, agreed to co-sign the note and furnish the additional $1,500 which his parents required to acquire the house.

William Suwalski, his wife, and Arthur Suwalski executed the appropriate real estate contract, mortgage and note, and on November 6, 1950, a trustee’s deed was executed naming William, his wife, and Arthur Suwalski as joint tenants. Arthur Suwalski then gave his check for $1,500 directly to the loan association, and the attorney representing William Suwalski and his wife paid the association $301.53 which was required to complete the closing. William Suwalski repaid the attorney the following day.

William, his wife, and Arthur Suwalski moved into the house, and in 1953, after his marriage, Arthur Suwalski left the home. William Suwalski’s wife died in 1961,"and he continued to occupy the house until 1963, when, because of failing health, he tried to sell the property. After execution of a contract for the sale, William Suwalski discovered that his son’s name was included in the deed as a joint tenant. When he tried to pay his son $1,500 and asked for a conveyance, his son refused, and when his name was added to the proposed contract as a grantor, the master found that Arthur Suwalski demanded $10,000 from the proceeds of the contemplated sale. At this point the negotiations for the sale were broken off. In the original trial William Suwalski had tendered $1,500 to Arthur Suwalski in open court. Arthur Su-walski refused the tender, and thereupon, by leave of the court, the said $1,500 was deposited with the clerk of the court.

In the ensuing litigation William Suwalski argued that it was never intended that Arthur should have a beneficial interest in the house when it was purchased, and that the $1,500 paid by Arthur was merely a loan to William and his wife. The resulting trust in favor of William was created by the transaction.

Arthur Suwalski, however, contended that he was a purchaser for value and an owner in joint tenancy. He also counterclaimed, in Count I of which he asserted that William Suwalski had severed the joint tenancy in 1963 by executing what he apparently claimed was a second mortgage, and that as a result Arthur and William each had a one-half interest as tenants in common. In Count II of the counterclaim Arthur Suwalski asserted that William and his wife had executed a joint and mutual will, and that the will was a contract, under the terms of which Arthur and his sister, Virginia Badgley, were equal beneficiaries of such contract, subject to a life estate in William Suwalski, and further subject to a legacy of $1,500 which was due Arthur.

In its opinion the Supreme Court found that a resulting trust existed in favor of William Suwalski. The Appellate Court is now to pass upon the contentions raised in Count II of Arthur Suwalski’s counterclaim.

On August 15, 1957, William Suwalski and Anna K. Suwalski, his wife, made their joint will. Anna K. Suwalski died on April 25, 1961, and the will was admitted into probate. The will reads as follows:

We, WILLIAM J. SUWALSKI and ANNA K. SU-WALSKI, His Wife, of the City of Chicago, County of Cook and State of Illinois, being of sound and disposing mind and memory, do hereby MAKE, PUBLISH, and DECLARE this to be our joint Last Will and Testament.
FIRST: We give, devise and bequeath to the survivor of us the entire estate, real, personal or mixed, owned by either of us at the time of the death of either of us, to the survivor of us, for his or her own use and benefit forever.
SECOND: We hereby direct that our Executrix, hereinafter named, pay all our just debts and funeral expenses as soon after our decease as conveniently may be.
THIRD: We are indebted to our son, ARTHUR J. SUWALSKI, in the sum of One Thousand Five Hundred Dollars ($1,500.00), therefore, we give, devise and bequeath to our said son, ARTHUR J. SUWAL-SKI, the sum of One Thousand Five Hundred Dollars ($1,500.00), his heirs and assigns forever.
FOURTH: After the payment of our just debts and funeral expenses, and the above said sum of One Thousand Five Hundred Dollars ($1,500.00), all of the rest, residue and remainder of our estate, real, personal or mixed, wheresoever the same may be situated and of whatsoever the same may consist, we give, devise and bequeath to our two children, namely; ARTHUR J. SUWALSKI and VIRGINIA BADGLEY, in equal shares, share and share alike, their heirs and assigns forever.
LASTLY: We make, constitute and appoint our daughter, VIRGINIA BADGLEY, to be the Executrix of this, our Last Will and Testament, and it is our wish and we hereby direct that she be not required to give any bond or surety for the discharge of her official duty as such Executrix.

This was a joint will with reciprocal provisions and it was signed and sealed by both parties, which imports consideration.

In Curry v. Cotton, 356 Ill 538, 191 NE 307, at 543, the court said:

“A will that is both joint and reciprocal is an instrument executed jointly by two or more persons with reciprocal provisions and shows on its face that the bequests are made one in consideration of the other. (Frazier v. Patterson, 243 Ill 80, 28 RCL 167.) ”

The court further said at page 545:

“The rule of law that a joint will is irrevocable without notice is particularly applicable in those instances where the joint will is that of the husband and wife. On account of the relationship of mutual trust and confidence imposed by such status, it may be presumed that the provisions made are induced by the mutual love, respect for and faith which the parties have in each other. . . .
“We are of the opinion that the rule supported by reason and sound, equitable principles and more likely to prevent fraud is, that a joint will may be revocable during the joint lives of the makers upon giving notice by one testator to the other, but such will becomes irrevocable after the death of one of the makers if the survivor accepts any of the benefits made for him by such will. [Citing cases.]”

The court in Curry did not follow the theory that the fact that the will was joint and mutual raised a presumption that there was a contract between husband and wife. However, the court did hold that the contract was “clearly apparent from the four corners of the will,” and the will was upheld.

In In re Estate of Edwards, 3 Ill2d 116, 120 NE2d 10, the court said at page 122:

“The cases involving wills which are merely mutual or reciprocal in their provisions, but not joint, generally require proof by clear and convincing evidence that they were executed as the result of a binding contract to be irrevocable. . . .
“The quest for a common denominator among these authorities discloses a tendency to favor a presumption that joint and mutual wills, particularly between husband and wife, are executed pursuant to a contract or agreement between the testators. The later decisions, however, appear reluctant to permit the presumption to be sufficient in itself but search the terminology of the will for an expression of intention on the part of the testators to stand in the stead of supporting proof.”

The court in Edwards held that since the will was under seal it had been held to be of some significance as importing some consideration. The court further stated that where the will is executed pursuant to a contract, the contract becomes executed as to the deceased testator and is therefore irrevocable by the other.

In Tontz v. Heath, 20 Ill2d 286, 170 NE2d 153, a joint and mutual will was executed by husband and wife. The court said at page 291:

“The defendants contend that the evidence was insufficient to show that the will was executed pursuant to a contract between the testators. As we pointed out in Bonczkowski v. Kucharski, 13 Ill 2d 443, 453, the burden is upon the party who asserts such a contract to establish it by clear, convincing and satisfactory evidence. (Cf. Sparks, Contracts to Make Wills, p 24.) Here there is no evidence of a contract except as it appears from the terms of the will itself and from the circumstances of the testators. But we are of the opinion that the trial court properly found that a contract existed. The testators were husband and wife who made identical reciprocal provisions for each other in a single instrument; . .

In Peck v. Drennan, 411 Ill 31, 103 NE2d 63, the court followed the rule laid down in Curry v. Cotton, 356 Ill 538, 191 NE 307, from which case we have already quoted. Under these decisions the will in the instant case established a contract.

In its decree the trial court in the instant case found that the joint will did not prohibit William Suwalski from conveying, encumbering, transferring or assigning the property; and further, that there was no repugnancy between the absolute devise in Article First of the joint will and Article Fourth, which directs a division of what remains of the estate upon the death of the surviving testator between the children of the testators named specifically. The court further found that the statement in the will of an indebtedness of the testators to Arthur J. Suwaski was binding.

Whether or not it is held that the joint will, such as in the instant case, established a contract is immaterial as far as the question of irrevocability is concerned. Such a will is not revocable after the death of one of the parties.

In interpreting the will it is necessary to carefully consider the language therein. In the first section, each of the testators did give, devise and bequeath to his or her survivor the entire estate, real, personal or mixed, owned by either of them at the time of the death of either, “to the survivor of us, for his or her own use and benefit forever.”

The fourth section of the will provides:

“After the payment of our just debts and funeral expenses, and the above said sum of One Thousand Five Hundred Dollars ($1,500.00), all of the rest, residue and remainder of our estate, real, personal or mixed, wheresoever the same may be situated and of whatsoever the same may consist, we give, devise and bequeath to our two children, namely; ARTHUR J. SUWALSKI and VIRGINIA BADGLEY, in equal shares, share and share alike, their heirs and assigns forever.”

The first and fourth clause are not in conflict. By the first clause the testators intended that their property, real or personal, at the death of either of them, would go to the survivor. The survivor was not prohibited from selling or converting the property from personalty to realty or from realty to personalty, and it was given to him for his own use and benefit forever. The fourth section provides that after the payment of the $1,500 to Arthur Suwalski, the remainder of the estate shall go to Arthur Suwalski and Virginia Badgley, after the death of both William and Anna Suwalski.

Reading these two sections together, it is clearly apparent that the intention was that each of the testators conveyed all of his property to the survivor to use as he sees fit during his life, and that after his death the property which is remaining shall go to the two children.

In the decree in the trial court it was held that Arthur J. Suwalski holds title for the benefit of his father, William J. Suwalski, and the court ordered that within 10 days from the date of the entry of the decree, Arthur J. Suwalski and Dolores Suwalski, his wife, “shall make, execute, acknowledge and deliver a Deed conveying to William J. Suwalski, a widower, all of their right, title and interest in and to the following described property, to-wit: [description of property].” The decree further ordered that in case of failure of either of the defendants to make, execute, acknowledge and deliver such deed within the time specified, then a master in chancery of the court or the sheriff of the county is ordered, directed and empowered to make, execute, acknowledge and deliver a master’s deed to vest title to the said premises in said William J. Suwalski, a widower. It was further ordered that the clerk of the court be directed and authorized to pay forthwith the sum of $1,500 to the master in chancery, to be applied on account of the balance of his fees and charges; that the loan of $1,500 from Arthur Suwalski to William and Anna Suwalski be declared satisfied in full; and that the second amended counterclaim of Arthur Suwalski be stricken and the alleged causes of action therein set forth be dismissed.

It is the opinion of this court that the will did not in any way change the devolution of the estate; therefore, the contention of Arthur J. Suwalski cannot prevail, and in accordance with the directions of the Supreme Court of Illinois, we affirm in its entirety the decree of the Circuit Court.

Affirmed.

LYONS, P. J. and BURKE, J., concur.

SUPPLEMENTAL OPINION

William J. Suwalski died on April 1, 1969, subsequent to the date the original opinion in this case was filed. On May 9, 1969, the joint and mutual will was admitted to probate. Letters testamentary were issued to Virginia Badgley, who qualified and is now acting as executor.

In all other respects we adhere to the original opinion.

Affirmed.


author: MR. JUSTICE McNAMARA

text:
    People of the State of Illinois, Appellee, v. Joseph Basile, Appellant.
    Gen. No. 52,417.
    First District, Second Division.
    October 1, 1968
    Supplemental opinion June 17, 1969.
    Harvey J. Powers, of Chicago, for appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Theodore A. Shapero, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE McNAMARA

delivered the opinion of the court.

Defendant, Joseph Basile, was charged with committing a battery, in violation of chapter 38, § 12-3-a of the Ill Rev Stats (1963). After a bench trial, he was found guilty and sentenced to 30 days in jail. Defendant appeals, contending that the judgment should be reversed and the cause remanded for a new trial, because he did not knowingly and intelligently waive his constitutional rights to the assistance of counsel and trial by jury.

There was no verbatim transcript of the proceedings, nor has defendant provided a proposed report of proceedings as permitted by Supreme Court Rule 323 (c).

The record indicates that defendant was arrested upon the complaint of one Barbara J. Wynn, who alleged that defendant had struck her on or about December 12, 1966. He appeared in court on February 10, 1967, and after pleading not guilty was found to have committed the offense charged. The judgment order of February 10, 1967 indicates that defendant was advised of his right to trial by jury, and that he elected to waive that right. The order is silent as to whether defendant was given any advice as to his right to counsel, but indicates that he appeared without counsel.

After the trial and judgment, defendant, by his present counsel, presented motions for a new trial and in arrest of judgment. The motion for a new trial alleged that defendant was deprived of his constitutional right to counsel. The motions were denied by the court on March 28,1967, and this appeal follows.

Defendant first contends that he did not knowingly waive his right to trial by jury. Since defendant has not seen fit to provide us with a report of proceedings, we are not informed of what transpired except by the record itself. This shows a waiver of trial by jury. Defendant argues that a formal signed waiver is necessary, and that no such written waiver was obtained. The Supreme Court has held that a jury waiver need not be in writing. People v. Brown, 13 Ill2d 32, 147 NE2d 336 (1958). We therefore hold that defendant was advised of his right to trial by jury, and that he waived that right.

Defendant next contends that he did not knowingly waive his right to the assistance of counsel. The State contends that where the crime charged is not a felony but only a misdemeanor, the court has no duty to inform defendant of his right to counsel. Defendant contends that even when a misdemeanor is involved, defendant must be offered the assistance of counsel, citing People v. Manikas, 87 Ill App2d 227, 230 NE2d 577 (2nd dist, 1967), which so held.

Rule 401(b) of the Illinois Supreme Court provides that:

“The court shall not permit a plea of guilty or waiver of indictment or of counsel by any person accused of a crime for which upon conviction, the punishment may be imprisonment in the penitentiary, unless the court finds from the proceedings had in open court at the time waiver is sought to be made or plea of guilty entered, or both as the case may be, that the accused understands he had a right to be held to answer for the offenses on indictment by a grand jury and has understandingly waived that right . . . and understands he has a right to counsel, and understandingly waives that right.”

Felony is defined in Ill Rev Stats c 38, § 2-7 as “. . . an offense punishable with death or imprisonment in the penitentiary.” Misdemeanor is “. . . any offense other than a felony . . .” Ill Rev Stats c 38, § 2-1. Battery, the offense charged in the instant case, is a misdemeanor.

Recently this court has held that where a defendant is charged only with a misdemeanor the trial court is under no duty to inform him of his right to the assistance of counsel. People v. DuPree, 97 Ill App2d 327, 214 NE2d 414 (1968); People v. Brown, 99 Ill App2d 243, 240 NE2d 173 (1968). In the DuPree case, we discussed People v. Manikas, supra, and we chose not to follow it.

Accordingly, the judgment of the Circuit Court is affirmed.

Judgment affirmed.

BURKE, P. J. and LYONS, J., concur.

SUPPLEMENTAL OPINION

Subsequent to the filing of our opinion and while a petition for rehearing was pending in the instant case, our Supreme Court has considered one of the issues raised by defendant here: whether he was improperly denied his constitutional right to the assistance of counsel. In People v. DuPree, 42 Ill2d 249, 246 NE2d 281 (1969), affirming 97 Ill App2d 327, 240 NE2d 414, the court held that where defendant was charged with a misdemeanor, which is not punishable by a penitentiary sentence, and where he made no request for counsel, there was no violation of defendant's rights by failure of the record to recite that he was apprised of and expressly waived his right to counsel.

Therefore we adhere to our original view of the proceedings, and the judgment of the Circuit Court is affirmed.

Judgment affirmed.

LYONS, P. J. and BURKE, J., concur.