author: ALLOY, P. J.

text:
    Mary F. Jones, Plaintiff-Appellee, v. City of Rock Island, Illinois, a Municipal Corporation, Defendant-Appellant.
    Gen. No. 68-39.
    Third District.
    November 22, 1968.

      Bernard C. Gillman and Dorothea O’Dean, of Rock Island, for appellant.

      Peter H. Lousberg, of Rock Island, for appellee.
   ALLOY, P. J.

This cause arises by reason of an action filed by Plaintiff, Mary F. Jones, against defendant, City of Rock Island, Illinois, charging negligence in an injury to plaintiff on January 17, 1967, when plaintiff fell in the street at the northwest corner of 11th Avenue and 7th Street in the City of Rock Island. Plaintiff alleged that ice had accumulated due to the fact that the curbing, gutter and adjacent sidewalk at the location were allegedly in a defective, broken, and dangerous condition. The cause was tried before a jury and the jury returned a verdict of guilty as against defendant and assessed plaintiff’s damages in the sum of $4,000. Judgment was entered on the verdict.

On appeal in this Court, defendant contends that the verdict is contrary to the manifest weight of the evidence and also that defendant, City of Rock Island, a local public entity, under the evidence in the case before us, could not be found liable as a matter of law under the provisions of chapter 85, §§ 3-102 and 3-105 of the Illinois Revised Statutes. The evidence disclosed that plaintiff fell on the street referred to, sustaining a fracture of her left ankle. It was shown that the city had resurfaced the street, but had not done any work on the sidewalk since 1959. Work on the street resurfacing was done by the city during the summer of 1963 but there was no inspection of the sidewalks, curbing or gutter, nor was any work done on the sidewalks or curb. While there was evidence of a cursory visual examination of the area at one time there was no specific evidence of a report of the condition of the sidewalk in question. The supervisional inspection was made by a city employee who got out of his automobile as he noted the location. Plaintiff testified that there was some ice across the gutter and that she had to go over it. She said that when she stepped over it her right foot was on the curb. In doing so, her left foot went out from under her and she fell. She was wearing low-heeled boots. Where plaintiff tried to step to the sidewalk, the curbing dips low. Plaintiff had placed her foot on the upper part of the curbing where there were two levels of curbing. There was a crack in the curb, but plaintiff did not know whether she stepped on the crack of the curb. There had been rather heavy snow several days before the incident and there had been melting and refreezing of snow and ice. Plaintiff apparently sought to avoid ice which had accumulated because of the crack in the curb and was stepping up on the curb to avoid the ice. As she put her foot up she fell.

Both parties to this cause recognize that a municipality may become liable for unnatural accumulations of ice or snow by reason of a defect in the sidewalk (Graham v. City of Chicago, 346 Ill 638, 643, 178 NE 911). In the Graham case, the court indicated that there is no more cause for excusing a city from liability where damages have accrued from ice which has formed on a sidewalk in an unnatural way, than there is to excuse it from damages when a walk has been permitted to become defective from any other cause. In that case the court held the city liable for permitting water, which overflowed from a skating park, to freeze on the sidewalk and remain there for a long period of time. This was deemed to be an unnatural, artificial accumulation. This principle of responsibility for injuries resulting from an unnatural accumulation which comes by reason of a defect in a street or sidewalk and thus creates a dangerous condition has been announced in many courts of this State (Cronin v. Brownlie, 348 Ill App 448, 109 NE2d 352; Loyd v. East St. Louis, 235 Ill App 353). Where the city permits a sidewalk to become defective and ice and snow is thereby accumulated, the aecumulation does not result from a natural condition but from a negligent omission on part of the city.

In the cause before us, the jury was justified in finding from the evidence that there was an accumulation of ice both in the gutter at the location and upon the sidewalk where plaintiff was attempting to step from the gutter, the curbing was in a broken condition and there was a difference in grade between the curbing and the sidewalk adjacent to the curbing. From the evidence offered by plaintiff, she noted that there was ice in the gutter and there was no ice on the curbing. There was ice on the low spot on the sidewalk adjacent to the curbing. Plaintiff, on the basis of her testimony, was trying to avoid the ice on the sidewalk which had accumulated in the low spot. She stated that when she saw the ice on the sidewalk she was trying to avoid that ice and in so doing she fell. The record shows that the curbing, the gutter and the sidewalk were in a broken and uneven condition. There was evidence from one of the municipal representatives who testified that if he had seen the condition of the location he would have had to report the condition to the city’s engineering department. On the basis of the record, therefore, the jury was justified in drawing the inference or conclusion that the drainage from the uneven condition of the sidewalk would be toward the sidewalk and curbing junctions. Because of the low level of the sidewalk where it met the curbing, water could accumulate there and freeze. This would, therefore, be an artificial accumulation of ice creating an unreasonable condition (if the jury so found), in conjunction with the broken character of the curbing and sidewalk and the difference in levels at the particular location.

Notice to a city has always been required. Such notice of the dangerous condition may be actual or constructive. If the condition existed for such a length of time that public authorities, by the exercise of reasonable care and diligence, might have known of the condition, then actual notice is not required, but the municipality is deemed to have constructive notice of the condition (Baker v. City of Granite City, 311 Ill App 586, 37 NE2d 372; City of Ottawa v. Hayne, 114 Ill App 21). Under such circumstances it is a question of fact for the jury to determine, whether the city had notice of the defect. The sidewalk condition referred to in this opinion had existed apparently since 1959. When the street had been resurfaced at the intersection adjacent to the sidewalk, no inspection was made of the sidewalk, curbing or gutter at that time. There was, therefore, sufficient evidence in the record to submit the issue of whether or not the city had notice, actual or constructive, to the jury.

Another issue which is specifically raised is whether the circumstance that plaintiff did not slip on the ice on the sidewalk which accumulated by reason of the unnatural condition, required a finding for the defendant. Plaintiff slipped while her foot was still on the gutter and her other foot was on the curbing. There was evidence that she was seeking to avoid the ice which had accumulated by reason of the defect. In Johnson v. City of Rockford, 35 Ill App2d 107, 182 NE2d 240, the city had created an obstruction on the sidewalk which caused the plaintiff to try to avoid the obstruction. Plaintiff was walking in the street as a result of the obstruction and was struck by an automobile. He walked in the street by reason of the fact that the adjacent sidewalk was obstructed by an ice bank of snow. The snow had been piled there by an abutting property owner and had remained there for a long period of time. It was the contention of the city in that case that plaintiff was not injured as a proximate result of the obstruction on the sidewalk, but rather, because of the conduct of the motorist who struck plaintiff. The court held that plaintiff’s complaint stated a cause of action as against the city and stated that the question of proximate cause could be determined by the jury. In that case the court stated (at pages 119-120) :

“We are inclined to adopt the rule . . . which holds that causes of an injury may be so commingled in a single act as to make the causes concurrent proximate causes. It is our opinion that all reasonable men and all reasonable minds may not agree on the issues of proximate cause and contributory negligence as alleged in plaintiff’s amended complaint, therefore, it would not be proper for the trial court or this court to substitute its judgment for that of a jury. Whether or not the piling of the snow and ice on the sidewalk and permitting it to remain there was the proximate cause or one of the proximate causes of the injury in question, we believe to be a question of fact to be determined by a jury, and to withdraw such question from its consideration is to usurp its function.”

This conclusion is not unique in this State (Richmond v. City of Marseilles, 190 Ill App 227, 230-232). The courts of this State have concluded that a plaintiff could be guilty of contributory negligence where the plaintiff knowing of the icy condition nevertheless crossed on the ice (Ritgers v. City of Gillespie, 350 Ill App 485, 113 NE2d 215; Cronin v. Brownlie, 348 Ill App 448, 109 NE2d 352). Assuming the soundness of such rule, then certainly if a plaintiff uses due care to avoid the dangerous, icy condition, and is injured thereby, a jury may properly conclude that the municipality may be liable if it concludes that the circumstances make the dangerous icy condition a proximate cause of the injury (Richmond v. City of Marseilles, 190 Ill App 227, 232). In the case before us, plaintiff apparently saw the icy condition. She may have recognized the risk and, in the exercise of due care, attempted to avoid it. The record, therefore, justified the submission of this cause to a jury for the purpose of determining whether the unnatural accumulation of ice was a proximate cause of the injury to plaintiff.

The contention of defendant, that the Act referred to as “Local Governmental and Government Employees Tort Immunity Act,” (1967 Ill Rev Stats, c 85, § 1-101 et seq.) requires that the judgment be set aside, does not appear to be justified. The Act referred to, in most areas, has codified preexisting law expressed in decisions in this State. In the act it is provided that the city must use ordinary care to maintain its streets and sidewalks in reasonably safe condition; that persons using city property must exercise ordinary care; that the city must have actual or constructive notice of unsafe or dangerous condition; and that constructive notice would not exist if a reasonably adequate inspection, considering the cost and practicality of the system weighed against potential danger, would not have revealed the danger, or that the city operated such inspection system with due care and did not discover the condition. With respect to weather conditions, it is provided that there is no city liability for injury from the effects of weather on the use of streets and sidewalks, which would include ice or snow, but that weather conditions did not include physical damage or deterioration to streets and sidewalks resulting from weather conditions. All instructions based upon the statute requested by the city and instructions given to the jury apparently covered the theories asserted by defendant in the trial. No contention is made that the city was prevented from arguing the reasonableness of its inspection system. The jury heard the evidence and the theories of the parties and was properly instructed on the law. There is nothing in the record which indicates that the city was prevented from presenting any theories or concepts which might have been embodied in the statute to which we have referred. Questions of fact were, therefore, raised for the jury to determine.

With respect to the contention that the verdict was contrary to the manifest weight of the evidence, we have indicated that this Court would not reverse nor would a trial court be justified in granting judgment notwithstanding the verdict, unless the evidence would appear so overwhelmingly in defendant’s favor that no contrary verdict based on the evidence could ever stand (Pedrick v. Peoria & Eastern R. Co., 37 Ill2d 494, 510, 229 NE2d 504). The questions which were raised in this cause were obviously questions for the jury (Baker v. City of Granite City, 311 Ill App 586, 592 and 594, 37 NE2d 372; Johnson v. City of Rockford, 35 Ill App2d 107, 120, 182 NE2d 240).

Since we find no reversible error in the record, the judgment of the Circuit Court of Rock Island County will, therefore, be affirmed.

Affirmed.

STOUDER and CULBERTSON, JJ., concur.


source: Caselaw Access Project

author: CULBERTSON, J.

license: Public Domain

text:
    People of the State of Illinois ex rel. Jeraldine Jones, Plaintiff-Appellee, v. Frederick Schmitt, Defendant-Appellant.
    Gen. No. 68-41.
    Third Judicial District.
    November 22, 1968.

      Robert W. Brinn, of Rock Island, for appellant.
    Richard Stengel, State’s Attorney of Rock Island County, of Rock Island, and Henry William McNeal, for appellee.
   CULBERTSON, J.

This is an action brought under the Paternity Act, chapter 106% of the Illinois Revised Statutes, by the People of the State of Illinois ex rel. Jeraldine Jones, against Frederick Schmitt, defendant. This cause was tried by the Court without the intervention of a jury. The Court found the defendant, Frederick Schmitt, to be the father of the child and ordered the defendant to pay all medical and doctor bills, plus $15 per week as support for the child. Defendant-Appellant prosecutes his appeal from the judgment of the Court. Appellant contends in this Court the proof required by law to establish liability on his part was not met, and the finding against him is against the manifest weight of the evidence.

An examination of the evidence produced on the trial of this cause, much of which is not in conflict, discloses the relatrix, Jeraldine Jones, met Frederick Schmitt at Regal Lanes in East Moline, Illinois about the 9th or 10th of September, 1963. Both the relatrix and the defendant were married at the time. The defendant was a personnel man in the United States Navy, and was working as a part-time bartender at a bowling alley. At the third meeting, about the 17th of September, the couple drove to the Naval Reserve Center in Moline, Illinois and entered the billet. The evidence discloses that defendant removed the relatrix’s clothing and they participated in an act of sexual intercourse. The relatrix testified that she first realized she was pregnant when she missed her periods in October and November of 1963, and that thereafter she approached the defendant and informed him of the situation, and she contends at that time the defendant told her not to worry.

The evidence discloses that at the time of conception in September the relatrix was living in the home with her husband. Both the relatrix and her husband testified on the trial of this cause that they had occupied separate bedrooms for a year and that they had not had intercourse during the last six months of their marriage, which said marriage was terminated with a divorce in December, of 1963.

The relatrix testified, among other things, that in December of 1963, the defendant bought matching wedding bands for himself and the relatrix. In June of 1964 the child was bom. The evidence discloses that on two separate occasions defendant gave the relatrix money toward the payment of hospital bills incurred at the birth of the child. A witness, Marlene McCandalace, told the defendant on one occasion that the baby looked like him, and the defendant answered, “he ought to.” The relatrix and the defendant continued seeing each other from September of 1963 through November of 1965. They met on the average of once or twice a week, and they continued to meet, although the relatrix moved to Tipton, Iowa in February, 1965. There is evidence by the relatrix that during the time she lived in Tipton, Iowa, on different occasions the defendant drove over ice-slicked roads to Tipton, Iowa for the purpose of sex. The relatrix testified they had many dates, as often as twice a week until she moved to Tipton, Iowa, and they would have intercourse with each date, once or twice. The evidence discloses that the defendant admitted having intercourse with the relatrix on or about the date of conception. The defendant contends that he used a contraceptive, but relatrix testified that she was not aware of the fact. The evidence also discloses that the defendant admitted, “there is a chance I could be the father.”

We are fully aware of the presumption of legitimacy of children conceived during the course of wedlock. This presumption, however, has been held to be a rebuttable presumption. It has never been held a conclusive presumption. Where a child is born during the course of wedlock the presumption can only be overcome where there is irrefragable proof (People ex rel. Gonzalez v. Monroe, 43 Ill App2d 1, 192 NE2d 691).

This action being an action under the Paternity Act is a civil action and the Rules of Evidence applicable in civil cases are applicable to this action, and the law enjoins upon the plaintiff in a paternity suit the burden of proving her case by the greater weight of the evidence. The Court, in its consideration of the evidence adduced on the trial of this cause may well have given consideration not only to the fact that in large part the evidence stood uncontradicted, but also to the fact that as distinguished from other cases as they quite often develop in matters of this character, the defendant appeared and gave his testimony (LaLacker v. Stuckey, 40 Ill App2d 341, 189 NE2d 676).

This case having been heard and determined by the Court without a jury, the right of this Court to interfere with and substitute its judgment for the judgment of the Trial Court has limitations wisely imposed upon it by law. The Trial Court heard and observed the various witnesses as they gave their testimony, and evaluated the testimony he had heard and made his judgment thereon, and we are not permitted to disturb that judgment unless it is clearly and palpably against the weight of the evidence. This is true even though the Reviewing Court might be inclined to find otherwise had it been in the position of the Trial Court (Hall v. Pippenger, 365 Ill 135, 6 NE2d 134). The finding of the Trial Court is entitled to the same weight as the verdict of a jury (Weisberg v. United States Casualty Co., 288 Ill App 72, 78, 5 NE2d 846). We must conclude that in this case there is ample testimony to support the finding of the Trial Court and this Court cannot say the finding is against the manifest weight of the evidence.

Therefore, the judgment of the Trial Court of Rock Island County, as entered in this cause, is hereby affirmed.

Affirmed.

ALLOY, P. J. and STOUDER, J., concur.


text:
    Department of Public Works and Buildings of the State of Illinois for and in Behalf of People of the State of Illinois, Plaintiff-Appellee, v. James Dalessio, et al., Defendants, Jolerich Construction Co., Inc., an Illinois Corporation, Defendant-Appellant.
    Gen. No. 66-82.
    Third District.
    November 25, 1968.

      Adamowski, Newey & Riley, of Chicago, for appellant.
    William G. Clark, Attorney General of State of Illinois, of Springfield, and Francis A. Dunn, Assistant Attorney General, of Joliet, for appellee.
   ALLOY, P. J.

This is an appeal from a judgment of the Circuit Court of Will County in an eminent domain action in which the jury returned a verdict fixing just compensation of $12,462 for the land taken and $4,154 for damages to the remainder.

The record discloses that appellant, Jolerich Construction Co., Inc., an Illinois corporation, purchased 6.65 acres of vacant land from a school district at a public auction on November 20,1960. It made no improvements on the land. On April 8, 1963, about 28 months after the purchase, the State of Illinois filed a petition for condemnation of 3.106 acres of this land. The 3.106 acres taken were out of the middle of the 6.65-acre tract, leaving an east and west tract which were both damaged by the taking. The amount of damage for the taking of the land and for the remainder not taken was contested as between the parties. The condemnation action was the result of the planning for construction of Interstate 80 although none of the particular tract was to be used for such route. The land taken was to be used for the east ingress and the west ingress of a diamond interchange for westbound traffic on Route I 80 and also for the relocation of a street known as Richards Street. After completion of construction, two streets running past the property (Richards and Poplar) would be dead-end streets. The jury not only heard the evidence but also viewed the premises. They thereafter awarded $12,462 for the property actually taken and $4,154 for damages to the balance of the property not taken.

There was a wide variation in testimony of appraisers and witnesses as to value on behalf of the Department of Public Works and of the defendant-owner of the land. The appraisers for the State fixed damages for the taking and damages to the other two remaining tracts at totals of $14,000, $15,800, and $14,500 respectively, while witnesses for the property owner testified that damage ranged from totals of $85,000 to $125,503.35.

Early in the course of the trial, the property owner objected to any evidence being offered as to the fact that the 6.65-acre tract had been purchased at a public auction approximately 28 months before the filing of the petition for condemnation. The trial judge examined several witnesses outside the presence of the jury including the president of the defendant-company who attended the auction sale. Following such examination, the trial judge concluded that the evidence of the auction sale and the price paid for the 6.65 acres was admissible. With respect to the auction, the evidence disclosed that it was a sale of surplus property by a local school board. The sale was properly advertised and before the sale, the Joliet-Will County Board of Appraisers appraised the property for $4,500. The sale was held on November 20, 1960. Although it was shown there was a big snow that evening, testimony indicated that 20 bidders were present at the auction. The testimony disclosed that everyone was bidding until the bids reached $12,000, but after $12,000 was reached, there was only the representative of defendant and one other person who continued bidding. When the representative of defendant bid $18,000, the partner of the remaining bidder told him to stop bidding, and Mr. Krypel, President of the defendant-company, purchased the 6.65 acres for $18,000. There was also testimony in the record that "public sales almost always bring the market value or better in Will County” and nothing in the record indicates that the auction sale was not fairly conducted and open to all prospective bidders. Evidence in the cause further disclosed that there were no changes in the property or the area between the time of the auction and the time of the filing of the petition for condemnation which would operate to change the value of the land. The 6.65 acres were rezoned from residential to business, but a showing was made that such rezoning could have been obtained at any time without difficulty and that this factor in itself did not affect the value during the intervening 28 months.

In the trial of this cause the property owner attempted to introduce evidence of the sales of land in the general area which occurred after the time of the filing of the petition for condemnation. One sale which the property owner attempted to show in evidence occurred 14 weeks after the filing of the petition and another 5 months after the filing of the petition. The trial court refused to allow evidence of any sale occurring after the filing of the petition. The property owner objected to the exclusion of such evidence.

The record also shows that there was very little development in the general area over the past 25 years. A Kroger store which was later vacated was located in the area and a pick-up laundry cleaning establishment and a Salvation Army building were the only new businesses which apparently had started in the area over the past 20 to 25 years. A witness for the property owner testified that he knew of only two homes built in the area in the last 25 years and also that the only other new businesses he recalled in addition to the ones already referred to were a funeral home and two gas stations. As far as the record is concerned the net effect of testimony as to the growth of the area showed that the area was in fact static.

There was also conflict in the testimony of the appraisers for the respective parties as to the necessity of a fill in preparing the site for construction. Witnesses for the Department of Public Works testified that in arriving at their appraisals, they considered that due to the topography of the land, it would probably be necessary to bring in substantial yardage of fill in order to make the lot usable. Evidence on behalf of the property owner was to the effect that development of the land could be made without any dirt fill if proper business buildings were constructed with a basement.

An additional area of conflict in the evidence was as to the possible flooding of the land under consideration. All the witnesses agreed that the last time the entire area had been under water was in 1957. There was some evidence on behalf of the property owner, by an engineer on a sewer project through the area, that the outlet had been changed and that the entire condition of the area was changed and improved since 1957. There was, however, a photograph introduced into evidence showing the effects of a hard rain on May 12, 1966, which disclosed water in the creek within two or three inches of spilling over the top of the concrete wall and thus flooding the entire area. The possible flooding problem was considered by the Department’s appraisers in arriving at their figures while the appraisers for the property owner testified that they felt that the flooding problem had been cleared up.

In the closing argument, the attorney for the property owner stated “again I remind you there is no business use to which this land can be put,” which he emphasized for the benefit of the attorney for the State calling his attention to this argument by naming him. In argument in reply, the attorney for the State stated “I’ll tell you what business use this tract of land can be put to. It can be used for a parking lot for John Krypel, who owns the dance hall across the street.” Objection was immediately made by defendant and the court sustained the objection, and ordered the statement stricken from the record and, likewise, directed the jury to disregard it, as requested by defendant.

The first issue for consideration is whether the trial court correctly admitted evidence of the purchase of the tract under consideration at a public auction 28 months prior to the filing of the petition for condemnation. As we have indicated in the statement of facts the evidence disclosed that the auction was well advertised, open to all bidders and attended by 20 people even though the weather was not favorable on the evening of the auction. There was also specific testimony that in the Joliet area, auction sales are a good indication of market value of the land. In an early Illinois case, Sanitary Dist. of Chicago v. Corneau, 257 Ill 93, 100 NE 517, the Supreme Court held that it was error to admit evidence of the price which owners paid at an auction sale where the owners involved were the owners of 80/81 of the land being sold and thus their bid had little significance. The court in that case found that the first and only bid for the property was $500 an acre so that there was no competition, and there seems to have been some understanding that the parties would bid that amount. Under such circumstances, the court declared that it was error to admit evidence of the purchase of the land. The court, however, stated (at page 99):

“If an owner has purchased property from another within a time so recent that its cost will afford any indication of its present value it is competent for either party to show the price paid, and perhaps that might be so of a public judicial sale which is not forced or compulsory”;

In the later Illinois case of Forest Preserve Dist. of Cook County v. Dearlove, 337 Ill 555, 169 NE 753, evidence of a sale of a tract (by trustees in a will under court authority), which tract was across the road from the property being condemned was held admissible. In that case it was shown that the title to the adjacent tract had been held by a trustee under a will and that the attorney negotiating the sale had contacted over 50 brokers for nearly four months before finally making the sale. The court indicated there that evidence of voluntary sales of land in the vicinity and similarly situated would be admissible to aid in estimating the value of land to be taken by eminent domain. The court indicated that whether or not any given sale should be admitted under this rule lies within the discretion of the trial judge. The court noted that the mere fact that the sale of the farm was under a decree of court did not make it a forced or compulsory sale. While there is no Illinois case which has been called to our attention or which we have been able to discover, where evidence of the purchase of exactly the same property at auction sale was under consideration, we see no reason why the principle should not be applied in such case.

In other jurisdictions such evidence has been admissible. In State v. Calkins, 50 Wash2d 716, 314 P2d 449, an auction sale was involved and the court found that the public auction was free and voluntary and if the property was located close to the condemned property, evidence of such comparable value could be introduced. In Application of Housing Authority of the City of Bayonne, 21 NJ Super 254, 91 A2d 106, the question which was involved was the admissibility of evidence of a purchase at public auction of the same land being condemned. Such evidence was found to be admissible. We believe that this is a sound rule, if the sale is a free and open sale, and if conditions as to the property are substantially the same as they are later at the time of the filing of the condemnation petition. We, therefore, believe it was proper to admit evidence of the auction sale in the instant case.

The next issue for consideration was whether the trial judge correctly refused to admit evidence as to any sales of property in the area which occurred after the date of petition for condemnation. As we have indicated, the property owner attempted to introduce evidence of two sales, one 14 weeks after the filing of the petition and the other 5 months later. The court in denying the right to introduce such evidence stated that the diamond interchange proposed presented a new value influence as to commercial value of property in the area and, therefore, that evidence of sales after the time of filing of the petition would not be properly admissible. The property owner cites the City of Chicago v. Blanton, 15 Ill2d 198, at 202, 154 NE2d 242, where the court stated that to aid in establishing value the court has consistently held that evidence of voluntary sales of similar parcels occurring in the same vicinity at or about the filing time are admissible unless such proof causes a confusion of issues which offsets the benefits to be derived therefrom. In that case there was a petition to condemn land for a school in an area where there was a shortage of schools. The court, however, in refusing to admit evidence of sales after the condemnation action was filed stated (at page

“This being the case, it is only reasonable to assume that the filing of the instant condemnation action to acquire property for such a school would materially affect the price of neighborhood real estate by presenting a new valuation influence which had not previously existed.”

Certainly this is the situation in the case before us. When it became known in the area that there was to be an Interstate Highway and there would be access from the Interstate Highway to this area, this necessarily would have a material effect on land values in the area. The sale which occurred 14 weeks after the petition was made to the Texas company which operates gas stations, so that it could be reasonably deduced that the location of the Interstate Highway had a material influence on land values in the area. As the court had noted in the Blanton case (cited above) admission of evidence rests largely in the discretion of the trial court and its decision should be reversed only where such discretion had been clearly abused. On the basis of the record before us, we do not believe that there was an abuse of discretion by the trial judge in refusing to admit such evidence.

It is vigorously contended that the'trial judge was in error in refusing to conclude as a matter of law that the verdict of the jury was the result of passion or prejudice and was clearly against the manifest weight of the evidence. Both parties to this cause quote from the case of County of Cook v. Colonial Oil Corp., 15 Ill2d 67, at 69, 153 NE2d 844, where the court said:

“It is well established that where an award is made by a jury in a proceeding in which the evidence is conflicting, and the jury views the property and fixes the amount of compensation within the range of the evidence, such a verdict will not be disturbed unless there has been a clear and palpable mistake or the verdict was the result of passion or prejudice.”

Although there was an attempt to discredit the qualifications of appraisers for the State, it was clearly shown that the key witness, a Mr. Kelly, was a resident of Joliet all of his life and had been in the real estate business for 24 years. His testimony disclosed that he had a great deal of experience in the field of appraisals and particularly in condemnation situations. The other two appraisers were likewise competent. On the record, there was sufficient testimony by witnesses to substantiate the jury verdict. While there was quite a difference in valuations by the appraisers, the verdict of the jury was within the area fixed by the appraisers. In Department of Public Works and Buildings v. Todaro, 90 Ill App2d 245, 233 NE2d 61, the State sought to condemn a piece of property eight and one-half feet wide by 100 feet long on the east side of the property of the owners in that litigation. One witness for the State valued the strip to be taken and the necessary easement for construction at $1,140 while another valued the strip at $940. Two witnesses for defendant valued the damages at $18,710 and $18,050 respectively. The jury award of $1,250 was affirmed. The court answered the contention that the award was so inadequate as to warrant a new trial by saying:

“The wide variance of value ascribed to the property is not unusual in condemnation cases. The award for compensation was within the limits of the testimony. Damages awarded by a jury in a condemnation proceeding will not be disturbed where the evidence is conflicting, the jury has viewed the premises, and the amount of compensation fixed is within the range of evidence, unless there appears to have been a clear and palpable mistake or the verdict was the result of passion or prejudice.”

In Forest Preserve Dist. v. Galt, 412 Ill 500, 107 NE2d 682, where the lower appraisal was favored by the jury, the court stated (at page 503):

“We take notice that in this case, as in most other condemnation proceedings, there is a wide variance between the values accorded to the property by the witnesses for the appellee and the witnesses for the appellants. This variation in value is no basis for a reversal of the award of the jury in cases of this type.”

Under the precedents in this State and in view of the record in this cause, we do not believe we would be justified in disturbing the verdict of the jury.

The final issue for consideration is whether the statements by attorney for the State that defendant had a special use for the property as a parking lot was such prejudicial error as to require a reversal. The attorney was obviously wrong in making the response to the argument which was precipitated by the argument of defendant’s attorney. The error, however, was corrected when the trial judge sustained the motion of defendant to strike the statement from the record and to instruct the jury to disregard the statement, which was all the relief requested by defendant. It is difficult in fact to conclude that the statement was of such prejudicial nature that the mere fact that the jury heard it should be grounds for reversal. Since the court correctly allowed the motion to strike and instructed the jury to disregard it we feel that there was no reversible error by reason of the making of such statement.

Since we find no reversible error in the record, the judgment of the Circuit Court of Will County will, therefore, be affirmed.

Affirmed.

STOUDER and SCHEINEMAN, JJ., concur.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Edward Williamson and Cunningham Purify, Defendant-Appellant.
    Gen. No. 66-90.
    Third District.
    November 25, 1968.

      Harry C. McSteen and George P. Troha, of Joliet, for appellant.
    George W. Sangmeister, State’s Attorney of Will County, of Joliet, for appellee.
   ALLOY, P. J.

This cause is before us on appeal by Edward Williamson from a conviction and sentence following a jury trial on charges of burglary, robbery and rape and by Cunningham Purify for conviction and sentence in the same trial for the crimes of burglary and robbery.

The record in this case discloses that defendant Purify was arrested on November 11, 1965, and jailed for questioning. Defendant Williamson was also arrested and questioned by the police. Both defendants eventually made oral confessions. Defendant Purify made his first confession on November 16, 1965, and he made another confession on November 17, 1965. Defendant Williamson also made an oral confession. The eonfessions of both Purify and Williamson were tape-recorded by the State’s Attorney’s office.

Before the trial began, defendant Purify moved to sever the trials of the two defendants because they had each made separate confessions. This motion was denied. Purify, who made the motion, was charged and tried for burglary and robbery only and not for rape. Defendant Williamson did not make a motion to sever. Both defendants, prior to trial, moved that they be furnished with copies of their tape-recorded confessions. This motion was made pursuant to chapter 38, section 114-10 of 1965 Illinois Revised Statutes, which provides as follows:

“Motion to Produce Confession, (a) On motion of a defendant in any criminal case made prior to trial the court shall order the State to furnish the defendant with a copy of any written confession made to any law enforcement officer of this State or any other State and a list of the witnesses to its making and acknowledgment. If the defendant has made an oral confession a list of the witnesses to its making shall be furnished.
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“(c) No such confession shall be received in evidence which has not been furnished in compliance with subsection (a) of this Section unless the court is satisfied that the prosecutor was unaware of the existence of such confession prior to trial and that he could not have become aware of such in the exercise of due diligence.”

The trial court concluded that the tape-recorded confessions under the record as were made in this cause were not “written confessions” within the scope of the section referred to. The motions were, therefore, denied.

At the trial of both defendants, the actual tape-recorded confessions were never introduced into evidence. The State’s Attorney, however, testified as to such oral confessions made by both defendants. Both defendants were given a list of all witnesses present at the oral confessions as required by the Act referred to. The record also discloses that prior to trial, an Assistant State’s Attorney offered to play the tape and confession for the defendants and their attorneys, and to allow them to make a recording of them, if defendants would stipulate that this satisfied their motion to produce the tape recording. Both defendants refused this offer and elected to stand on the ruling of the court denying the motion to produce. During the course of the testimony relating to oral confessions of defendant Purify, the State’s Attorney made reference to statements of Purify about how “we split the money” and what “they had done.” The defendant, Williamson, objected to such plural references and the court instructed the jury to disregard these references to another person, and later required that the State’s Attorney restrict his testimony as to the confessions so as to cover “his” activities. The confessions related only to burglary and robbery charges and not to the rape charges.

During the course of the trial, defendant Purify raised some additional questions relating to his confessions. He asserted that he was arrested on November 11, 1965, and was not informed of the charge against him until the following day. He claimed that he requested an attorney and such attorney was appointed on November 19, 1965, but that the attorney was not notified of this appointment until November 24, 1965. He states that he was interrogated from 11 to 13 times by police from November 11 through November 19, and that he made an oral confession on November 16; and another which was tape-recorded on November 17; and still another on November 24, 1965. Defendant Purify also claims that he was not advised of his right to remain silent and was not allowed to confer with the attorney appointed to defend him. He also asserted that there was a promise of leniency if he would make a confession. Emphasis is placed by such defendant on the contention that he made his confession six days after his arrest and before he was allowed to talk with his attorney. The testimony in behalf of the State in this respect is quite different and tends to show that defendant Purify was taken into court on the day following his arrest and informed of the charges against him and of his right to an attorney. It also discloses that Purify was allowed to telephone for an attorney on the night he was arrested. There is also evidence that Purify requested that his arraignment be continued until he could obtain an attorney of his own, and that when he failed to obtain one he then requested that the court appoint an attorney. The State asserts that this was the reason for the delay.

The first question for consideration on appeal is whether the trial court erred in refusing to order the State to furnish defendants with a copy of the tape-recorded confessions made by defendants. We do not feel that this constituted reversible error. The tape recordings were not offered in evidence. In lieu thereof evidence of oral confessions was given. It is, therefore, unnecessary for us to determine whether the tape-recorded confessions were in fact “writings” within the meaning of section 114-10 (c 38, 1965 Ill Rev Stats). It is notable that a list of all persons present when confessions were given was furnished to defendants and also that the State in fact offered to permit the defendants to hear the tapes of the confessions and to make their own recordings or copies of such confessions. Defendants refused the State’s offer and apparently they decided to rely upon the technical position that the court’s denial of the motion would be a basis for error on appeal. From an examination of the record before us we, therefore, conclude that there was no reversible error in the refusal of the trial court to order the State to furnish defendants with a copy of the tape-recorded confessions.

Defendant Williamson, on appeal in this Court, seeks to assert that it was error on part of the court to deny the motion made by Purify to sever the trials of Williamson and Purify. Defendant Williamson made no such motion, but is attempting to take advantage of the motion made by Purify although Purify raises no objection on appeal with respect to the ruling on such motion to sever. Williamson’s name was mentioned at no time in the confessions of Purify and the jury was instructed to consider statements of Purify as evidence only as against Purify. Defendant Williamson’s defense on the record could not have been seriously prejudiced by the procedure in conducting a joint trial of both Williamson and Purify. Since Williamson did not move to sever the trials of the respective parties, however, it is our determination that he cannot now raise this question on appeal.

The next question raised was whether the contention of defendant Purify that the confessions were not voluntary and should not have been admitted into evidence is sound. The question of whether a confession is voluntary is determined on the basis of the record, and is largely within the discretion of the trial court. In People v. Hartgraves, 31 Ill2d 375, at 378, 202 NE2d 33, where a contention was made that confessions had been obtained by physical and mental abuse and coercion and by a promise of leniency; that defendant was not permitted to make a telephone call during interrogation; and was not advised of his constitutional right to remain silent, the trial court determined these questions by conducting a preliminary hearing and held that the confessions were voluntary. On appeal such determination by a trial court will not be disturbed unless manifestly against the weight of the evidence or unless the court has committed an abuse of discretion. The record discloses sufficient evidence from which the trial court in the instant case could have concluded that the confessions were voluntary. The procedure for determining whether or not a confession is voluntary was outlined in People v. Strayhorn, 35 Ill2d 41, 219 NE2d 517. In that case the court reiterated that the voluntary nature of a confession is largely within the discretion of the trial judge, and the court stated specifically (at page 46):

“. . . it is only necessary for the prosecution to make a prima facie case and that the State was not required to produce all its evidence before any evidence is produced on behalf of the accused.”

The court found no prejudicial error in the procedure adopted by the trial court in that case nor do we find any prejudicial error in the instant case. There was testimony of several officers present at the time of the confession and during questioning to the effect that defendant was not threatened or promised leniency with respect to his confession. There was very little evidence presented by defendant that he was threatened or that anything transpired which would in any manner affect the voluntary nature of the confession. With respect to the question of statements made by the officers to the defendant Purify, the facts in the record before us brings this case within the scope of People v. Joe, 31 Ill 2d 220, 201 NE2d 416, where the officer testified that he had advised defendant to tell the truth if he made a statement. Urging a defendant to tell the truth would not in any respect taint a confession. We, therefore, must conclude, on the basis of the record, that the trial court did not abuse its discretion in the instant case by finding that the confession of defendant Purify was not the result of a promised leniency or in any manner involuntary.

The final question raised by defendant Purify was whether his constitutional right to due process of law was violated. It appears from the record that defendant was permitted to call an attorney the night of his arrest and that defendant requested a delay of his arraignment in order to obtain an attorney of his own choice. When he found he could not obtain an attorney, the court appointed an attorney for him. According to the testimony on behalf of the state, the officers informed defendant Purify of his rights when he was arrested. We, therefore, conclude that there was no violation of the principles established in Escobedo v. Illinois, 378 US 478. The Supreme Court of this State, in People v. Hartgraves, 31 Ill2d 375, at 380, 202 NE2d 33, in construing the effect of the Escobedo case had stated that the court did not read into the Escobedo case the requirement that a voluntary confession be rejected simply because the State did not “affirmatively caution the accused of his right to have an attorney and his right to remain silent.” On the basis of the record before us, we must, therefore, find that defendant Purify was not deprived of his constitutional right to due process of law.

Since we find no reversible error in the record, the judgments of the Circuit Court of Will County with respect to defendants in this cause will be affirmed.

Affirmed.

STOUDER AND SCHEINEMAN, JJ., concur.


author: SCHEINEMAN, J.

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Herbert Mallory, Defendant-Appellant.
    Gen. No. 66-110.
    Third District.
    November 25, 1968.
    Julian Cannell, of Peoria, for appellant.
    Robert E. Manning, Jr., State’s Attorney, of Peoria, and Jay Janssen, Assistant State’s Attorney, for appellee.
   SCHEINEMAN, J.

The defendant was convicted by a jury of the murder of Neoma Mallory, his ex-wife. On this appeal it is contended that the evidence fails to prove any criminal intent, the defendant claiming it was an accident.

A man named Kille who sometimes roomed in the house of Mrs. Mallory, had come in about 4:30 p. m. and obtained her permission to lie down in the back bedroom, where he went to sleep. Mrs. Mallory then went and met her former husband. They stopped at a couple of taverns, did some other errands, and arrived back at the house about 7:30 p. m. Kille was awakened by the defendant’s voice. Defendant had come in to the bedroom and stood five or six feet from the doorway. He said to Kille, "Jack, you had better leave because I don’t want you to see what might happen.”

The defendant’s version of what happened was that he saw Kille on the bed. He called to his wife that “Jack’s out here.” He asserts that he had gotten a butcher knife to cut something for a sandwich. He asked Mrs. Mallory to come and see something. Then he says:

“Well, I stumbled and as I was going into the hallway to where she was and she must have been coming in there, because we met right between the hall and the bedroom, right in the little doorway there ... I don’t know exactly what happened — then I fell against her and she didn’t say anything and the next thing I realized that the knife was plunged in her body.” He also stated he had stumbled — tripped over a rug — caught his foot — she was right in the doorway when the knife went into her.

Kille testified that when he wakened hearing defendant tell him to leave, the defendant was standing at the foot of the bed with a knife in his hand. Mrs. Mallory came in and was five or six feet from the defendant, and made some remarks which he did not recall, then he saw defendant put the knife into her. They weren’t far enough apart that he had to take any steps. He went toward her with the knife in his right hand, it was an underhand — not an overhand thrust.

Kille also said he did not see the defendant stumble and that he never did fall. When the witness was asked whether defendant deliberately thrust the knife into her body, the witness replied he could not be the judge of that.

The last sentence presents the gist of the defense argument. It is asserted that the State failed to prove any criminal intent. Citations are: People v. Ahrling, 279 Ill 70, 116 NE 764, and People v. McPheron, 354 Ill 381, 188 NE 470. We do not consider these cases sufficiently similar to the case before us to constitute any guide. This witness told what he heard and saw. He merely declined to state any opinion of what was in the defendant’s mind.

As to Kille’s statement that he did not see defendant stumble, the defense counsel argued somewhat with the witness that he was not positive defendant did not stumble, all he could say was that he did not see. him stumble. Kille explained he did not focus his attention on the man’s feet.

Cases cited are People v. Holtz, 294 Ill 143, 128 NE 341, and People v. Wilson, 400 Ill 461, 81 NE2d 211. The rules of law quoted from those cases are limited to situations where the evidence is strictly circumstantial. They are not applicable to the testimony of an eyewitness.

There was some testimony that the bedroom was carpeted with wall-to-wall type. This and the description of the stabbing by the eyewitness supplies evidence that the stabbing was not an accident caused by a tripping and falling.

The coroner’s physician testified as to his findings upon examination of the deceased, that the knife thrust had penetrated through the stomach, through the pancreas, severed the portal vein, and severed or penetrated the renal artery and vein.

The extent of the injuries indicated there was considerable force used and make the story of a loss of balance, or tripping, seem very unlikely. The jury was justified in believing the eyewitness who was obviously confining his testimony to what he had heard and seen, and still remained vivid in his memory.

We believe the jury’s verdict is entitled to respect and that it is supported by the evidence. The judgment is affirmed.

Affirmed.

STOUDEE and ALLOY, JJ., concur.


text:
    John Samios, Plaintiff-Appellee, v. City of Joliet, a Municipal Corporation, Maurice Berlinsky, as Mayor, and Nancy Vallera, as City Clerk, Maurice Berlinsky, as Mayor, William H. Wilson, as City of Joliet Councilman, and Frank J. Gospodaric, Defendants-Appellants.
    Gen. No. 68-9.
    Third District.
    November 25, 1968.
    William G. Mullen, Edmund F. Harmon, and O’Brien & Faulkner, of Joliet, for appellants.
    Cirricione & Penn, of Joliet, for appellee.
   SCHEINEMAN, J.

The City of Joliet had built a fire station at a new location and no longer needed the old site. After inquiry was made of the City Council of Joliet at a regular meeting on February 16, 1965, regarding the purchase of the vacant property by appellant Gospodaric, the city manager was instructed to advertise for bids on the property by the Council. In so doing, the Council acted upon motion and unanimous vote. The property was duly advertised, and two bids were received; one from plaintiff in the amount of $53,000 and one from Gospodaric in the amount of $45,250. The property was apparently appraised at a value of $40,000.

At a regular Council meeting on August 3, 1965 the bids were considered. A motion to reject the bids and re-advertise was defeated. A motion to accept plaintiff’s bid failed to receive the three-fourths vote required by law.

On August 30, 1965, plaintiff filed a complaint seeking in one count a writ of mandamus to compel the city to complete an alleged sale of the municipally owned property, and another count requesting specific performance.

On September 21, 1965, the City Council returned the bids by unanimous action, together with the deposits made by the bidders. Thereafter the City, as defendant in the court action, moved to dismiss the complaint, which motion was heard on September 23, 1965, and was denied on October 6,1965.

Over two years later, on November 7, 1967, another motion was made at a Council meeting to accept plaintiff’s bid. This motion again failed to carry by the necessary three-fourths vote. On December 5, 1967, a hearing was held in court on a motion for summary judgment previously filed by plaintiff. The next day the trial court entered judgment on the motion in favor of plaintiff. The order required that a writ of mandamus issue, ordering the city to issue a deed. No deed has been issued. There was also a summary judgment for plaintiff on pleadings.

The applicable law is chapter 24, Illinois Revised Statutes, section 11-76-1, which authorizes a city to sell its real estate that is no longer needed by it. There are two express requirements: the power must be exercised by ordinance and it must be approved by a three-fourths vote.

It is apparent the legislature deemed the sale of city real estate a serious matter requiring special precautions and formal action. It is not a proper function of the judicial branch of the state to ignore the law or to override the legislature acting within its constitutional powers.

“Where the charter requires the passage of an ordinance — a legislative act — by the Council, to accomplish the object desired, an ordinance is indispensable.” McQuillin Mun Corp, 3rd Ed (1949), § 15.03, at page 57.

Appellee’s brief cites cases which are not in point and do not support the trial court’s action.

The complaint specified that the procedure of the City Council was by motion. A motion is not an ordinance and bears no resemblance to it. If it is contended the city officials were improperly motivated, the remedy is at the polls, not in court.

References to a contract in this case are in vain, there never was a contract. Moreover, the city has received nothing from the plaintiff and there is no basis upon which to assert an estoppel.

So long as there is not a three-fourths majority of the Council willing to make a proper sale of the real estate, there can be no sale. No court has authority to convert a minority of the Council into a three-fourths majority.

The writ of mandamus was improperly issued and is therefore quashed, and the summary judgment is reversed.

Reversed.

STOUDER and ALLOY, JJ., concur.


text:
    Christopher Duncan and Mose Duncan, by David Duncan, Their Father and Next Friend, Plaintiffs-Appellees, v. Eugene Fisher and Peoria City Lines, Inc., a Corporation, Defendants-Appellants.
    Gen. No. 68-4.
    Third Judicial District.
    November 25, 1968.

      Cassidy, Cassidy, Quinn & Lindholm, and Young & Sullivan, of Peoria, for appellants.
    Mathis, Sloan & Littler, of Peoria, for appellees.
   SCHEINEMAN, J.

Two boys employed as caddies at a country club north of Peoria were given a ride into the city by Mr. Eugene Fisher. En route their car crashed into the rear of a city bus stopping for passengers. Both boys were injured and suit was filed by their father as next friend. One count charged their injuries were caused by the wilful and wanton conduct of the defendant Fisher and another count against Peoria City Lines, Inc., charged they were caused by the negligent operation of the city bus. A jury returned verdicts for the boys against both defendants. Post-trial motions were denied, and judgments entered on the verdicts, from which this appeal is taken.

The accident happened in midaftemoon of a summer day, on Knoxville Avenue at Crestwood Drive. Fisher had stopped at a traffic light four or five blocks before reaching Crestwood. A bus came from the east and turned south on Knoxville in the lane farthest to the right of the four-lane pavement. Fisher followed it when his light turned green.

Fisher observed that he was gaining on the bus which slowed down and was stopping at Crestwood. Accordingly, he decided to go around it. He speeded up to 60 or 65 m. p. h. and tried to swerve into the second southbound lane. However, there was other traffic there, and a car was at his left rear which prevented him from getting into that lane. He then swerved back to the right and sought to stop in time to avoid the collision. His speed was too great for the short distance available and his car skidded into the rear of the bus.

Weaving from lane to lane in an effort to gain the highest speed is frequently condemned as a highly dangerous practice. This defendant knew he was behind a vehicle moving slower than other traffic, he knew there was other traffic on the Avenue, yet he strives to cut in ahead of the vehicle on his left, attaining high speed in the attempt, and finds he is unable to control his car properly at that speed. On this evidence, it cannot be held that the verdict against him is clearly contrary to the weight of the evidence. Hester v. Goldsbury, 64 Ill App2d 73, 212 NE2d 316; Podro v. Dynoski, 83 Ill App2d 79, 226 NE2d 377; Amenda v. Suits, 8 Ill2d 598, 134 NE2d 811.

Complaint is made as to certain rulings on instructions. The Court gave a definition of wilful and wanton as contained in IPI 14.01 without the bracketed material, and refused to give one containing the material. (In brackets is a reference to a showing of “actual and deliberate intention to harm.”) There being no evidence of that intention, the court ruled correctly. We cannot accept the theory that a jury’s comprehension of law would be improved by stating some principle not applicable to the facts shown in the evidence.

Objection was also made to the refusal of an instruction as to a statute prohibiting stopping a vehicle on the paved or main traveled part of the highway. This law is aimed at rural localities where there is normally a shoulder available for parking if a vehicle is to be stopped. It does not apply in a city where, to stop a vehicle off the pavement, would often require going over the curb. The statute is expressly limited to a highway “outside a business or residential district” and the evidence did not indicate such a locality.

We are of the opinion that the jury was adequately instructed, and the judgment on the verdict against the defendant Fisher is affirmed.

As to the defendant, Peoria City Lines, Inc., there is a complete lack of any evidence tending to show that it was operating illegally, improperly or negligently. It was performing its proper function in a reasonable manner. A city bus, like any other vehicle, must be operated with due care, but it must perform its duty as a public utility and furnish reasonable transportation for those who desire it.

There is nothing to indicate that the bus made an unusual stop. A city bus is expected to stop for passengers at a convenient place. Sometimes this is at the intersection of a street and sometimes on the farther side, depending on the volume of traffic and needs of the public. It is contended by the plaintiffs that it should have proceeded across Crestwood where there is another lane. Of course, one who collides with a bus can always argue it should have stopped somewhere else, since the collision would not have occurred if it had not stopped at that particular place. But the bus was stopped in its usual location which is not prohibited by any law or regulation.

It is argued that the stoplights on the rear of the bus were of low candlepower. But this collision did not occur at night, it was broad daylight. All the occupants of the Fisher car saw the bus and Fisher observed it was moving slowly enough so that he was gaining on it. That is the reason he decided to go around it. Brighter lights would not move it faster nor lessen the desire of an impatient driver to get around it. Nor would brighter lights have made it possible for Fisher’s brakes to achieve a stop in a shorter distance. We conclude the evidence does not justify this verdict of the jury. Kerby v. Chicago Motor Coach Co., 28 Ill App2d 259, 171 NE2d 412. Accordingly, the judgment against the Peoria City Lines, Inc. is reversed.

Affirmed in part and reversed in part.

STOUDER and ALLOY, JJ., concur.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Donald Eugene Gray, Defendant-Appellant.
    Gen. No. 68-37.
    Third District.
    November 25, 1968.

      Samuel J. Naylor and Richard Ripple, of Carthage, for appellant.
    Max Stewart, State’s Attorney of Hancock County, of Carthage, for appellee.
   ALLOY, P. J.

This is an appeal from a verdict and ensuing judgment finding defendant guilty of selling alcoholic liquor without having a valid liquor license issued by Hancock County, Illinois. The court imposed a fine of $300 from which the appeal is taken.

The evidence discloses that defendant, Donald Eugene Gray, owned a 60-foot boat named “Addie May.” It was a two-deck boat with a dining room and bar on one of the decks. Defendant had a liquor license issued by the State of Illinois Liquor Control Commission as a “Boat License.” The license was issued pursuant to chapter 43, section 115 of 1965 Illinois Revised Statutes. The section provides in part as follows:

“Licenses issued by the Rlinois Liquor Control Commission shall be in the following classes: (a) Manufacturer’s license — Class 1. Distiller, Class 2. Rectifier, Class 3. Brewer, Class 4. Wine manufacturer, Class 5. First-class wine-maker, Class 6. Second-class wine-maker; (b) Distributor’s license, (c) Importing Distributor’s license, (d) Retailer’s license, (e) Railroad license, (f) Boat license, (g) Non-Beverage User’s license, (h) Wine-maker’s retail license, (i) Airplane license, (j) Foreign importer’s license. ... (f) A boat license shall allow the sale of alcoholic liquor in individual drinks, on any passenger boat regularly operated as a common carrier on navigable waters in this State, which boat maintains a public dining room or restaurant thereon.”

The defendant had no other license other than the State boat license referred to. No local license of any kind had been obtained.

During 1965, the boat (Addie May) was used on the Mississippi River as an excursion boat open to the public for rides lasting about an hour. On the evening of July 31, 1965, the Addie May made one excursion run on the Mississippi River early in the evening. The boat then returned to a boat dock on the Illinois side of the river, which dock was not within any city limits but was between Hamilton and Nauvoo, Illinois, in Montebello Township, Hancock County, Illinois. A wooden catwalk from the shore in Montebello Township to a dock in the river about 80 feet in length and 12 feet in width was used to approach the boat. This dock was parallel with the shore and was supported by wooden posts which were driven into the Mississippi River. The boat was tied to the dock on the evening of July 31, 1965. That evening, at about 7:45 p. m., two State Policemen dressed as civilians, boarded the Addie May. They both testified they had no trouble getting on board and while on board they each purchased two bottles of beer at the bar on one of the decks. During the period of nearly an hour when they were on board and purchased the beer, the Addie May remained tied to the dock and the engines were never turned on. After the officers had purchased and consumed the beer they arrested defendant. He was thereafter charged in a criminal complaint with selling alcoholic liquor in Montebello Township without a Class “A” liquor license issued by Hancock County, Illinois. The complaint charged a violation of 1965 Illinois Revised Statutes, chapter 43, section 183. This section provides that “Any person who . . . sells alcoholic liquor at any place within the State without having first obtained a valid license so to do under the provisions of this Act . . . shall ... be fined not less than $50 nor more than $500

The evidence at the trial of the cause disclosed that defendant had a valid “boat license” which was issued by the Illinois Liquor Control Commission for the period from February 17, 1965, to February 28, 1966, for the “Addie May” excursion boat. It was also shown that there was a public dining room on the Addie May and that the boat was in fact used as an excursion boat on the Mississippi River during 1965. In the course of the trial, the court instructed the jury that it was unlawful to sell alcoholic liquor at retail in Hancock County, Illinois, outside of any city or village limits without first obtaining a “Class A” County liquor license. The court refused to give defendant’s tendered instruction which stated that if defendant in the case at the time in question had received from the Illinois Liquor Control Commission a “boat license,” that defendant was not required by law to have any other license to sell liquor on said boat.

The fundamental question before us is whether it was the intent of the Illinois Acts relating to licensing and control of the sale of liquor, that a person who obtains a “boat license” from the State is also required to obtain a local license in the area where the boat ties up to the dock. Section 109 of chapter 43 of 1965 Illinois Revised Statutes clearly indicates that the Legislature intended that a boat license shall issue without a local license. It specifically provides :

“Nothing contained in this Act shall, however, be construed to permit the State Commission to issue any license, other than . . . railroad’s, airplane’s or boat’s license . . . unless the person applying for such license shall have obtained a local license for the same premises. . . .”

This statute clearly indicates that a local license must be obtained before a State license can be obtained, except that the State may issue such licenses as “distributor’s, railroad’s, airplane’s or boat’s license,” without the necessity of the applicant having a local license. The language of the statute permits of no other interpretation than to conclude that a person with a boat license need not also obtain a local license.

Under section 115 of the same chapter it is clear that a boat license without requirement of an additional local license is contemplated where it is provided that:

“Licenses issued by the Illinois Liquor Control Commission shall be of the following classes: . . . Class 6 . . . (e) Railroad license, (f) Boat license . . . (i) Airplane license ...(f) A boat license shall allow the sale of alcoholic liquor in individual drinks, on any passenger boat regularly operated as a common carrier on navigable waters in this State, which boat maintains a public dining room or restaurant thereon.”

It is clear that there is no requirement where a boat license is issued that there should also be a local license. In section 117 of this same chapter, the legislative intent to require only one license on a boat is further shown in the provision which recites that licenses shall state thereon the class to which they belong, the names of the licensees and addresses and description of the premises for which they are granted, “or in the case of railroads, airplanes and boats, a designation thereof by number or name.” It is obvious that if a local license were intended for boats, some local address or description of the location would be necessary for the purpose of ascertaining if the local license had been obtained. No provision appears anywhere in the statute for the County or Municipality to issue a boat license. This is indicative of the legislative intent that only the State of Illinois has such licensing power under the statute.

Even in section 120 of the same Act, the legislative intent for one license for boats is disclosed in the provision that no license of any kind issued by the State Commission or any local commission shall be issued to a person who is not a resident of any city, village or county in which the premises covered by the license are located “except in case of railroad or boat licenses.” In the revocation section (1965 Ill Rev Stats, c 43, § 150) there is also a clear indication that no local license is required. The provision recites that all proceedings for revocation or suspension of licenses of manufacturers, distributors, importing distributors, foreign importers, nonbeverage users, railroads, airplanes and boats shall be before the State Commission. It is apparent that the Legislature recognized that only the State would have jurisdiction over boat licenses, since there is no local license involved where a boat license is issued. It is apparent from a recital of all of the applicable sections of the Dram Shop Act that while a local license is required before a State license can be obtained in other categories, it is not required in licenses of the character involved before us.

Local authorities such as counties and unincorporated areas have only such authority in liquor control matters as are specifically given them by statute and primary authority for liquor control rests with the State of Rlinois. The courts of this State have indicated that the Dram Shop Act should be strictly construed as to the granting of authority to municipalities. In Heidenreich v. Ronske, 26 Ill2d 360, 187 NE2d 261, Du Page County attempted to license bartenders. The Supreme Court in that case stated (at pages 364-365) :

“The comprehensive grant of power in the Liquor Control Act is far different in scope than the general grant of the power to cities and villages over sidewalks, streets and buildings relied on in Concrete Contractors’ Ass’n of Greater Chicago v. Village of LaGrange Park, 14 Ill2d 65. There the legislature had left open the permissible methods by which the villages could effectuate their granted power. Under the Liquor Control Act, however, the legislature granted the power to regulate and also prescribed the method of licensing by which such regulation might be effectuated. It is significant that the legislature also limited the implied power of the municipality by providing that ‘the issuance of such licenses shall not be prohibited except for reasons specifically enumerated in Sections 2, 8, 8a and 21 of Article VI of this Act.’
“The legislature also, in the same act, gave municipalities the specific power to prohibit women and minors, other than a licensee or wife of a licensee, from drawing, pouring or mixing alcoholic liquor in licensed premises.
“We have repeatedly said that the sole power a municipality has to regulate the sale of alcoholic beverages is that conferred upon it by the State. (Henson v. City of Chicago, 415 Ill 564, 569; Sager v. City of Silvis, 402 Ill 262, 265.) In Illinois, the Liquor Control Act provides for the control of all matters relating to alcoholic liquors, and the sole power of an Illinois municipality over the liquor traffic must be found within the ambit of its provisions. Sager v. City of Silvis, 402 Ill 262, 265.”

It is obvious that a boat could be operated in as many as a dozen or more townships and may stop at a couple of dozen different places along the Mississippi. The Dram Shop Act apparently was designed to allow the State to issue one license to a boat owner rather than to have the boat owner obtain a separate license in each township through which it might travel or at which it might dock. The legislature apparently felt that great confusion could arise if separate licenses were required from each township or city at which the boat might dock. It is apparent that it was the legislative intent to require only the issuance of a boat license, and it was not necessary for defendant to have a liquor license issued by Hancock County in order to sell alcoholic liquor at retail on the boat.

It is noted that in section 115(f) of the Dram Shop Act, a boat license is issued for “any passenger boat regularly operated as a common carrier on navigable waters in this State.” Certainly the operation of a passenger boat as a common carrier would include stopping or docking. There is no implication in the Act that the license would only be valid as long as the engines are running or the boat is moving. On the record before us, the Addie May met the requirements of the Act. If the boat had remained tied up at the dock for a period of weeks, for example, it might raise a question as to whether it was being regularly operated as a common carrier. On the record before us, however, there was clearly an operation as a common carrier here, since the boat had actually made a trip on the evening shortly before the arrest.

By virtue of our conclusion in this opinion there is no occasion to remand this cause for retrial. The judgment of the Circuit Court of Hancock County is, therefore, reversed and the sentence of the court is vacated and set aside.

Judgment reversed and sentence vacated.

STOUDER and SCHEINEMAN, JJ., concur.


author: MR. JUSTICE SEIDENFELD

text:
    Nancy Ellen Grandys, Scott Thomas Grandys, a Minor, by His Father and Next Friend, Thomas W. Grandys and Thomas W. Grandys, Plaintiffs-Appellants, v. Spring Soft Water Conditioning Company, a Corporation, and Richard L. Morgan, Defendants-Appellees.
    Gen. No. 68-67.
    Second Judicial District.
    November 26, 1968.

      Herbert F. Stride, of Chicago, for appellants.
    Corrigan, Mackay, Quetsch and O’Reilly, of Wheaton, for appellees.
   MR. JUSTICE SEIDENFELD

delivered the opinion of the court.

The plaintiffs appeal from an order requiring the payment of One Hundred Fifty Dollars ($150) in attorneys’ fees pursuant to a petition filed under section 41 of the Civil Practice Act, charging the joinder of “Spring Soft Water Conditioning Company, a corporation,” as a defendant, and the willful refusal to dismiss after learning of the true facts, was in bad faith.

Plaintiffs had brought suit against “Spring Soft Water Conditioning Company, a corporation, and Richard L. Morgan,” alleging that Morgan was an employee of the company and charging the negligent causing of a motor vehicle accident resulting in personal injuries on March 5th, 1965. Leonard J. Browark, d/b/a Spring Soft Water Conditioning Company, voluntarily filed an answer advising of his sole proprietorship status and denying that Morgan was its employee or agent on the date in question. Thereafter, plaintiffs filed an amended complaint with substantially the same allegations except that a “willful and wanton” count was added. Morgan answered, also denying that the company was his employer or principal on the date of the occurrence.

Morgan’s deposition was taken on December 1, 1966, and he testified that he was self-employed at the time of the occurrence as a salesman of building products for numerous companies, but that he did not deal in any products manufactured by Spring Soft Water Conditioning Company until some twenty-two days after the occurrence. Thereafter, on October 17th, 1967, Browark, d/b/a Spring Soft Water Conditioning Company, filed a motion for summary judgment of dismissal. This was not opposed by plaintiffs’ attorney. At the same time the petition for attorneys’ fees was filed and the order appealed from entered.

Plaintiffs urge that the award was not justified because Browark appeared voluntarily and plaintiffs made no further effort to join him formally which could have been considered to amount to bad faith. The failure to dismiss the complaint voluntarily against the company is explained on the basis of a concern for the consequences to the attorney of a voluntary dismissal if his judgment later proved erroneous. Plaintiffs argue that at the time of the joinder of the company in the complaint, Morgan was its agent or employee, and that the initial mistake was not evidence of bad faith.

Defendant argues that the award is justified by plaintiffs’ failure to dismiss him after knowledge of the mistake, which caused him to incur the expense of defense.

We are of the opinion that the trial court acted within its proper discretion under the particular circumstances here.

Section 41 of the Civil Practice Act provides for the taxing of reasonable attorneys’ fees for “allegations . . . , made without reasonable cause and not in good faith, and found to be untrue.”

Section 41 is a remedial statute, one of its purposes being to prevent litigants from being subject to harassment by the bringing of actions against them, which by their nature are vexatious, based upon false statements, or brought without legal foundation. Ready v. Ready, 33 Ill App2d 145, 157, 162, 178 NE2d 650 (1962). Allowance of attorneys’ fees under the statute is discretionary, but the trial court can only exercise such discretion when the record discloses evidence of bad faith on the part of the pleader. Year Investments, Inc. v. Joyce, 44 Ill App2d 367, 195 NE2d 367 (Abst pp 10-12) (1964). “Bad faith,” includes the “asserting” of facts known to be untrue. Greengard v. Cooper, 78 Ill App2d 86, 90, 221 NE2d 775 (1966). The burden of proof is on petitioner to show that the statements are made without reasonable cause and not in good faith. Horween v. Dubner, 68 Ill App2d 309, 319, 216 NE2d 288 (1965).

It is not disputed that the allegations relating to the corporate status of the company and the employment status of Morgan are untrue. Plaintiffs continued to assert these allegations in the amended complaint after Browark’s answer put them on notice that the company was a sole proprietorship and that Morgan’s employment was denied; and the same allegations were allowed to remain even after the deposition of Morgan showed, with no evidence to the contrary in the record, that he was not an employee of the company at the time of the occurrence.

While plaintiffs would limit the “making” of allegations to the moment of joinder in its pleadings, under section 41, we do not so narrowly construe that section, keeping in mind its remedial purposes to protect a party who has been caused unnecessary expense in litigation. It is apparent that the status of the company could have been determined by the most perfunctory investigation. The improper joinder of the company as a corporation in the amended complaint clearly could be properly found to have been made without reasonable cause and amounting to bad faith under the circumstances, particularly after plaintiff had been put on notice of the personal status of the company.

Even as to the allegations of the employment of Morgan, although the record does not affirmatively show that they were made in bad faith in the complaint and amended complaint, we construe them as continuing assertions which we consider also to have been “made” within the purview of section 41. When the deposition advised plaintiffs of the fact that Morgan was not, in fact, an agent or employee of the defendant company, and this was undisputed, it became incumbent upon the plaintiffs to discontinue the litigation as to the company or suffer the consequences by requiring the further defense of what then became vexatious litigation. From the continued assertion of the untrue facts, we can properly assume that the defendants were subjected to harassment and expense in bad faith under this record, and that the discretion of the trial court was properly exercised.

No objection has been made to the amount of the attorneys’ fees allowed and no question of their reasonableness is before us.

Affirmed.

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


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Estella Moore, Defendant-Appellant.
    Gen. No. 68-36. (Abstract of Decision.)
    Second District.
    November 27, 1968.
    John T. Beynon, Public Defender, of Rockford, and John F. McNamara, Assistant Public Defender, for appellant; William R. Nash, State’s Attorney of Winnebago County, of Rockford, and William H. Snively, Assistant State’s Attorney, for appellee.
   Opinion by PRESIDING JUSTICE ABRAHAMSON. Not to be published in full.


author: MR. PRESIDING JUSTICE ABRAHAMSON

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Donald Burrington, Defendant-Appellant.
    Gen. No. 68-91.
    Second District.
    November 27, 1968.

      George H. Schirmer, Jr., of Freeport, for appellant.
    Dexter A. Knowlton, State’s Attorney of Stephenson County, of Freeport, for appellee.
   MR. PRESIDING JUSTICE ABRAHAMSON

delivered the opinion of the court.

The defendant, Donald Burrington, was tried and convicted of the crime of murder of 2-year-old Duane Gerloff in the Circuit Court of Stephenson County and sentenced to the Illinois State Penitentiary for a term of not less than 25 nor more than 35 years. Burrington appealed to the Supreme Court on the grounds that certain state-merits made by him to the police during the investigation without benefit of counsel were improperly admitted into evidence and the failure of the trial court to grant a new trial on the basis of newly discovered evidence was error. However, Burrington did not argue the first point to the Supreme Court and in accordance with Supreme Court Rule 341 (e) (7) it was deemed waived and the cause transferred to this court since no constitutional issue was involved. Burrington has expressly waived his first point before this court and raises here only the denial of his motion for a new trial.

On November 28, 1963, Burrington lived with Mary Gerloff and her four children aged 5, 3, 2 and 6 months in her rented apartment in the City of Freeport. Although they were not married, Burrington and Mrs. Gerloff had lived together for over a year, and the youngest child had been fathered by him. Burrington had discussed marriage with Mary but only on the “condition that she got rid of the kids.” He expressed a particular dislike for Duane, age 2 years, because of his physical resemblance to her divorced husband, Ed Gerloff.

Burrington, Mary and the children awoke around 10:00 a. m. on November 28 and ate a chicken dinner at 11:30 a. m. In the afternoon Mary’s brother visited the home and observed Duane at play with the other children and testified that he looked “pretty good” and “behaved okay.” Mary and her brother went to a laundromat during the afternoon, leaving Duane with Burrington and the other children, and returned about 4:30 p. m. The brother then left and Mary prepared a Thanksgiving dinner that was eaten by her, Burrington and the children about 4:45 p. m. Mary testified that Duane sat in his high chair during the meal and “ate good.”

About 7:00 or 7:30 p. m., Duane wet his training pants and Burrington took him to the kitchen where he hit him in the jaw with a wooden paddle. Duane “hollered” and Burrington took him into the bathroom with Mary’s oldest child, 5-year-old Ricky. Prior to that time, Mary testified that Duane had been playing and that his stomach was normal and “flat.” Mary changed her baby’s diapers and went to the bathroom door but it was locked. Despite her entreaties, Burrington refused to unlock the door for 5 minutes and when she was finally admitted she found Duane sitting on the floor, his head bobbing back and forth in a dazed condition and his stomach “bloated like a balloon” and “hard as a brick.” She observed a small plastic hose on the bathroom floor and that Duane’s face was wet. Mary immediately called a doctor and with the aid of neighbors took Duane to the hospital. The child died several hours later.

Dr. Gilbert Fish first saw Duane at the hospital at about 9:30 p. m. The child was unconscious, critically ill with multiple bruises over his body and appeared to have severe injures to the brain. There was 1000 ccs. of food and fluid in the child’s stomach (about a quart) that caused a severe distention since the normal capacity of a child of 2 years is 200 ccs. It was his opinion that the child died of traumatic shock caused by injury to the abdomen resulting in a ruptured stomach and complicated by brain swelling and damage.

Dr. Francis C. Tucker, a pathologist, performed an autopsy and testified that there was a large bruise on the face and a number of bruises and lesions on the body. His autopsy revealed a 4-inch laceration of the stomach, a laceration of the liver, a pronounced increase of fluid within the brain that could have been caused by a concussion. It was Dr. Tucker’s opinion that death was caused by the traumatic effect of the ruptured stomach that created a chemical type of peritonitis. Both Dr. Fish and Dr. Tucker testified that in their opinion the stomach could only be ruptured, even in its abnormal, distended condition, by the impact of a forceful blow from the outside, such as from a fist, a knee, a shoe or other blunt object.

A police officer testified that Barrington told him that he struck the child with a paddle and had fastened the plastic hose to the hot water faucet in the bathroom where he had taken Duane.

With this evidence before it, the jury on January 10, 1964, returned a verdict of guilty of the charge of murder and sentence was imposed on February 7,1964.

The defendant filed a motion for a new trial based on newly discovered evidence that was supported by an affidavit dated February 3, 1964, and signed by Dr. Fish and Dr. Tucker. In their affidavit, the doctors state:

“That since their testimony as such witnesses, they have developed through research, an opinion different from that which they had at the time of their testimony, and do now state that a rupture of a severely distended stomach could occur by reason of minimal trauma, so that a severe blow such as by a fist or other blunt object would not necessarily be required to cause such a rupture.”

It is contended by the defendant that the trial court improperly denied his motion since the jury could well have concluded that a reasonable doubt of Barrington’s guilt existed on the basis of the modification in the expert opinion. He argues that since it was not necessary for a forceful blow to cause the rupture it would have been possible to conclude that the child had fallen, or bumped his stomach or that the rupture was spontaneous.

A motion for a new trial on the basis of newly discovered evidence is not regarded with favor and is subjected to close scrutiny. People v. Dukes, 19 Ill2d 532, 538, 169 NE2d 84; People v. Holtzman, 1 Ill2d 562, 569, 116 NE2d 338. The disposition of the motion is left to the sound discretion of the trial court and that discretion will not be disturbed without a showing of abuse. People v. Baker, 16 Ill2d 364, 374, 158 NE2d 1. The Baker case repeated the requirements for the motion to lie as follows:

“To warrant a new trial, the new evidence must be of such conclusive character that it will probably change the result on retrial, that it must be material to the issue but not merely cumulative, and that it must have been discovered since the trial and be of such character that it could not have been discovered prior to trial by the exercise of due diligence.”

The rule was also stated in People v. Silvia, 389 Ill 346, 352, 59 NE2d 821, and People v. Marino, 388 Ill 203, 209, 57 NE2d 469.

As far as we can see, the motion has never been allowed or even made in regard to expert testimony. It is clear, however, that the new evidence is not of such con-elusive character that it would probably change the result on a retrial. People v. Witherspoon, 36 Ill2d 471, 477, 478, 224 NE2d 259; People v. Dukes, supra, pp 538 and 539. The uncontradicted evidence is that Duane Gerloff was a normal, health child on November 28, immediately prior to his confinement in the bathroom with the defendant. Five minutes later, his stomach was enlarged and extended to five times its normal capacity, he was unconscious, his head was “bobbing” and he was suffering from severe brain damage, a ruptured stomach and a lacerated liver.

In view of the expressed hostility of the defendant for this child, the circumstantial evidence that death was caused by his criminal act is overwhelming. That the stomach could have been ruptured by a minimal trauma is pertinent but hardly conclusive. Under the circumstances, it is highly improbable that the jury would return any other verdict than that returned.

Judgment affirmed.

MORAN and SEIDENFELD, JJ., concur.