author: MR. JUSTICE DAVIS

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Russell L. Dickman, Defendant-Appellant.
    Gen. No. 69-56.
    Second District.
    December 11, 1969.

      Smith, Smith & Smith, of Savanna (Richard K. Smith, of counsel), for appellant.
    William B. Petty, State’s Attorney, of Mt. Carroll, and John D. Kightlinger, Assistant State’s Attorney, for appellee.
   MR. JUSTICE DAVIS

delivered the opinion of the court.

A jury found the defendant, Russell L. Dickman, guilty of driving while under the influence of intoxicating liquor. The court entered judgment on the verdict, fined him $500 plus costs, and sentenced him to 90 days at Vandalia. On appeal, he contends that the tactics of the State were prejudicial and deprived him of a fair trial, and that the evidence did not establish his guilt beyond a reasonable doubt.

The prejudicial tactic of which the defendant complains was the narrative manner in which the State elicited the testimony of the arresting officer and other of its witnesses. He claims particularly that he was prejudiced when the arresting officer testified that when he took the defendant to the sheriff’s office, Sheriff Miller said something to the effect, “not you again.”

We have examined the record in its entirety and do not find that the manner in which the State questioned the arresting officer, or other of its witnesses, was prejudicial to the defendant; nor do we believe that the conduct of the State’s Attorney in interrogating the witnesses constituted reversible error. On several occasions throughout the testimony of the arresting officer, the defendant objected to the narrative form of his testimony, and each time the objection was sustained; and the State proceeded with the testimony on a question-answer basis at the request of the trial judge. The overall testimony, however, was clearly in the narrative form. It was not in form of answers by the witness in response to questions by the State’s Attorney. While the prosecutor did ask a number of questions throughout the examination of the State’s witnesses, the answers were neither short nor immediate, but rather, generally narrated what series of events next transpired.

Normally, evidence is introduced by question and specific response. This method of interrogation tends to keep the testimony of the witness within the rules of evidence and affords greater opportunity for opposing counsel to object to inadmissible testimony before it is actually given. To the extent that a question is not specific, or does not call for a limited, precise response, the answer of the witness may be in a narrative form. This has the advantage of naturalness and freedom from interruption, but it possesses the danger of eliciting irrelevant and inadmissible evidence before an objection can be made. The trial court has the discretion to permit the narrative form of testimony, particularly if it is best suited to the characteristics of a particular witness. Cleary, Handbook of Illinois Evidence, 2nd Ed § 6.4.

The State may offer a continuous narrative of the events that formed the context of the arrest. People v. Sessions, 95 Ill App2d 17, 24, 238 NE2d 94 (1968); People v. Alexander, 69 Ill App2d 27, 29, 216 NE2d 180 (1966). The State’s witnesses tended to testify in the narrative form. This method of testifying was not contrived and took place without prodding by the State’s Attorney. The trial court limited the narrative testimony to some extent. However, the method of testifying and the form of the testimony does not appear to us to have caused an outcome different from what it otherwise would have been. The People v. Ashley, 18 Ill2d 272, 282, 164 NE2d 70 (1960), cert den 363 US 815; The People v. Cavanaugh, 13 Ill2d 491, 492, 150 NE2d 592 (1958).

The defendant contends that the testimony that the sheriff said, “not you again,” when the defendant was brought to the jail, suggested to the jury that the defendant was a criminal, who was frequently arrested and jailed. We agree with the defendant that, as a general rule, in criminal cases, evidence in any manner showing or tending to show, or raise the implication of the commission of any other or similar act of misconduct, crime or offense, is inadmissible on behalf of the prosecution for the purpose of establishing that the defendant is guilty, unless the defendant has opened the door to such testimony. This is particularly true where the prosecution has made an obvious attempt to bring forth such testimony and thus prejudice the jury. The People v. Ciucci, 8 Ill2d 619, 624, 625, 137 NE2d 40 (1956); People v. Sessions, supra, 24; People v. Harges, 87 Ill App2d 376, 380, 381, 231 NE2d 650 (1967). Here, however, there was no such attempt on the part of the State. The defendant made no objection to this testimony. Under the circumstances of this case, we believe that there was no plain error of the type which would warrant our reversal without objection in the trial court. People v. Robinson, 98 Ill App2d 285, 288, 289, 240 NE 2d 397 (1968); Supreme Court Rule 615(a), (Ill Rev Stats 1967, c 110A, par 615(a)). Further, we do not believe from the record before us that these words, which were volunteered by the witness, affected the outcome of the trial. People v. Ashley, supra; People v. Cavanaugh, supra.

Without reciting all of the relevant testimony, we believe there was ample evidence to prove the defendant’s guilt beyond a reasonable doubt. The arresting officer testified that the defendant’s breath was strong of the odor of alcohol; his eyes were bloodshot; his speech slurred; he had difficulty in the use of his hands and in maintaining his balance; that at the time of his arrest he fell to the ground when he got out of his car and also fell to the floor at the jail. He also testified that he was familiar with the appearance and actions of persons who are intoxicated, and that he was of the opinion that the defendant was intoxicated. Another police officer, who was present at the arrest, and the sheriff, testified similarly. The sheriff further testified that there was no reason to give tests to determine whether the defendant was intoxicated, because he couldn’t stand up.

The defendant admitted that he had been drinking; that he told the State Trooper that he was not sick; and that he had consumed four mixed drinks and three beers over a period of seven hours. He also testified that he had taken six or seven tranquilizer pills during the same period; that he had been taking these pills for a nervous condition; and that he was nervous and ill at the time of his arrest.

A doctor testified on behalf of the defendant. He stated that he had been treating the defendant for a nervous condition for about ten years; that if a person increased the amount of the drug that the defendant was taking beyond that prescribed, in combination with the consumption of alcohol, such a person would manifest the appearance of intoxication; and that the intoxicating liquor would be a contributing factor.

The defendant’s contention that the State’s witnesses did not testify that the cause of intoxication was alcoholic liquor is without merit and is contradicted by the record. The police officers testified as to their observations, and their prior experiences were sufficient to support their opinion testimony with reference to intoxication. Also, there was other evidence which was ample to sustain a finding beyond a reasonable doubt that the defendant was driving while under the influence of intoxicating liquor. People v. Melero, 99 Ill App2d 208, 212, 240 NE2d 756 (1968); People v. Armstrong, 16 Ill App2d 365, 368, 148 NE2d 187 (1958).

In People v. Mundorf, 97 Ill App2d 130, 239 NE2d 690 (1968), at pages 138 and 139, we pertinently stated:

“Under the law, it is the province of the trier of fact to weigh the evidence and determine the credibility of witnesses. Where the evidence on an issue is conflicting but legally sufficient if the State’s witnesses are believed, the question is for the trier of fact to determine. People v. Jennings, 84 Ill App 2d 33, 39, 228 NE2d 566 (1967); People v. Ray, 80 Ill App2d 310, 316, 225 NE2d 467 (1967). This determination includes belief or disbelief of a witness’ testimony as well as resolving conflicts in the evidence. The trial court observed the witnesses, their candor or evasiveness, and their demeanor while testifying, and we will not interfere with its findings merely because there were conflicts in the testimony. People v. Castanza, 92 Ill App2d 419, 236 NE2d 251,257 (1968).”

It is only when we can say from a consideration of all of the evidence, that there is clearly a reasonable and well-founded doubt of the guilt of the accused, that we will interfere on the ground that the evidence does not support the verdict. People v. Stangeland, 76 Ill App 2d 77, 80, 220 NE2d 748 (1966).

The defendant has suggested several hypotheses of innocence, and has argued that the sheriff should have given intoxication tests and called a physician. The suggested hypotheses do not convince us that there is a well-founded doubt of guilt; neither do we believe, under the circumstances of this case, that the sheriff should have given intoxication tests to, or called a physician for the defendant, nor that his failure to do so casts any doubt upon the result reached by the jury.

The purpose of reviewing a judgment in a criminal case is not to determine whether the record is perfect, but rather to resolve whether the defendant has had a fair trial under the law and whether his conviction is based upon evidence which establishes his guilt beyond a reasonable doubt. If the errors in the record could not reasonably have affected the result of the trial, the judgment should be affirmed. The People v. Ashley, supra, 282.

For the foregoing reasons, we affirm the judgment of the trial court.

Judgment affirmed.

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


source: Caselaw Access Project

author: MR. JUSTICE SEIDENFELD

license: Public Domain

text:
    People of the State of Illinois, Plaintiff-Appellant, v. Joseph Mikrut, Defendant-Appellee.
    Gen. No. 69-93.
    Second District.
    December 11, 1969.
    William V. Hopf, State’s Attorney of DuPage County, of Wheaton, and Ralph J. Gust, Jr., Assistant State’s Attorney, for appellant.
    Edwin L. Douglas, Public Defender, of Wheaton, and Kevin P. Connelly, Deputy Public Defender, for appellee.
   MR. JUSTICE SEIDENFELD

delivered the opinion of the court.

The People have appealed from an order discharging defendant, Joseph Mikrut, from custody pursuant to a motion by defendant charging denial of a speedy trial under the provisions of Ill Rev Stats 1967, c 38, § 103-5.

On October 25, 1968, defendant was arrested in Cook County on charges of possession of burglary tools and driving with license suspended, and held in the Cook County jail. On or about the same date, the Elmhurst (DuPage County) police department placed a complaint and warrant specifying bond at $10,000, with the Cook County jail, charging defendant with burglary in Du Page County. The complaint and warrant were not served upon defendant. He was told, however, on October 29th, by Cook County authorities that they had a “hold” on him from DuPage County.

Bond on the Cook County charges was eventually reduced to $1,000 but defendant did not make bond.

On November 11th or 12th defendant appeared before the court on the Cook County charges and, represented by the public defender, agreed to a continuance until February 11th, 1969.

Defendant was brought before the court in DuPage County for the first time on January 10th, 1969, when he was served with an indictment returned by the Du Page County Grand Jury on December 19th, 1968. He was arraigned on the DuPage County charges on January 17th, 1969, and, after appointment of the public defender, the matter was set for motions and for trial setting on February 3rd, 1969. On that date the matter was set for trial on March 3rd, at which time defendant raised the 120-day rule regarding the DuPage County charge.

The provisions of section 103-5(a), supra, as material here, are:

“Every person in custody in this State for an alleged offense shall be tried by the court having jurisdiction within 120 days from the date he was taken into custody unless delay is occasioned by the defendant . . .

The issue raised by the appeal is whether the 120-day rule began to run on the date the DuPage burglary complaint and warrant was placed with Cook County but was not served on defendant, who was being held on a separate Cook County charge; or whether said rule instead began to run on the date defendant was first brought to DuPage County and served with the DuPage indictment. Defendant takes the position that the 120 days begin to run from the time he was in custody anywhere in the state on multiple charges pending in several counties. The People argue that the defendant was not in custody for “an alleged offense,” under the circumstances here, until he was served with the Du Page County indictment. Alternatively, the People contend that if the lodging of the complaint and warrant with Cook County is to be considered to have placed defendant in custody for the alleged offense in DuPage County, defendant suspended the operation of the 120-day rule by agreeing to a continuance of the Cook County case until February 11th, 1969, so that the 120-day period would not run on either charge until February 11th, 1969.

A similar issue was decided in People v. Clark, 104 Ill App2d 12, 244 NE2d 842 (1969), relied upon by the People. In Clark the accused was arrested by Rock Island police on January 14th, 1967, after he had driven from Peoria County to Rock Island County where he had attempted to negotiate some forged checks. On January 15th, 1967, before any formal action was taken, the Rock Island police department turned the defendant over to the sheriff of Peoria County, where defendant was under indictment for armed robbery. However, Rock Island requested he be held for later prosecution in their county. On February 17th, 1967, an indictment was returned by the Rock Island Grand Jury charging defendant with forgery, and a bench warrant was issued but was not served on the defendant. Defendant was to be tried in Peoria County on March 27th, 1967 for armed robbery, and on that date the Rock Island state’s attorney sent a copy of the bench warrant to the Peoria sheriff intending it as a detainer warrant. On April 19th the defendant was returned to Rock Island County and the next day he was arraigned on the Rock Island charge. On April 25th the defendant filed a motion for a bill of particulars. On May 23rd, the 129th day after his arrest, the defendant filed a motion for a discharge on the basis of the 120-day rule.

The court in deciding when the 120 days started to toll held that April 19th, 1967, the date the defendant was returned to Rock Island County after termination of proceedings in Peoria County, was the controlling date and not the date the warrant was lodged with Peoria County as a detainer warrant.

In Clark the court indicates (at page 17) that with no previous decision construing section 103-5(a), supra, or its antecedent, (Ill Rev Stats 1961, c 38, § 748), under similar facts, its course is charted .by The People v. Jones, 33 Ill2d 357, 211 NE2d 261 (1965) and The People v. Stillwagon, 373 Ill 211, 25 NE2d 795 (1940).

In Jones the supreme court held that under the previous statute (section 748, supra, which in substance is the same as the present section 103-5(a), supra, except that it applies to “any person committed for a criminal or supposed criminal offense” (emphasis ours)), defendants were not entitled to discharge when corn-plaints for robbery and assault were lodged while defendants were being held in the same county for unrelated offenses. The court held that the fourth month period after “commitment” did not begin to run until defendant was incarcerated on the charges contained in the indictment; and that, on the record, defendants were not “committed” on any date prior to the return of the indictment.

Defendant urges that the Jones case turns on the use of the word “committed” in the former statute, in place of “custody” as that word is now found in the present 120-day statute. We agree with the opinion in People v. Clark, supra, (at page 18) however, that this does not provoke a different construction. “Custody” and “commitment” are both terms which have commonly been used interchangeably to characterize actual “imprisonment,” or “incarceration,” or “confinement.” See The People v. Moriarity, 33 Ill2d 606, 609, 213 NE2d 516 (1966); The People v. Stillwagon, supra, at page 213; The People v. Emblen, 362 Ill 142, 145, 190 NE 281 (1935).

The People v. Stillwagon, supra, concerned a defendant who was involved in a holdup in Lake County on August 18th, 1936. The proceeds of the robbery were transported into Cook County, where the defendant was arrested and held in custody until November 18th. On November 18th, the Cook County indictment for larceny was stricken and defendant was surrendered by Cook County to the Lake County authorities. Defendant remained in jail until February 8th, 1937, when he was tried for the Lake County robbery. The defendant argued that the 120 days should run from the date of the original arrest by Cook County, but the court held that the only court competent to try defendant for robbery was the circuit court of Lake County with jurisdiction of the offense; and since the one court having jurisdiction tried defendant within four months of the date of his commitment, his right to a speedy trial was not invaded.

Defendant argues that Stillwagon has, in effect, been overruled by The People v. Patheal, 27 Ill2d 269, 189 NE2d 309 (1963). In that case Patheal was arrested for armed robbery in Coles County while on parole from the penitentiary on a previous felony. He was kept in the Coles County jail on the basis of a complaint and warrant from August 20th, 1959, until December 11th, 1959, when he was delivered to a state parole agent under a warrant charging parole violation, and taken to the penitentiary at Menard. On December 35th, 1959, the Coles County Grand Jury indicted Patheal for the same offense of armed robbery charged in the Coles County complaint and warrant. This was served on Patheal when he was released from the penitentiary on January 21st, 1960, and he remained in custody of the Coles County sheriff until February 23rd, when he filed his motion for discharge. The court refused to hold that Coles County did not have jurisdiction because of the technicality that, as a parolee, defendant was technically within the custody of the department of public safety. The court emphasized that defendant was arrested and confined in the Coles County jail upon their charge for a period just 9 days short of the four months, when he was returned to the department of public safety, and that this period could not be disregarded. They held that it would be added to the later time spent in the Coles County jail and considered as one period of incarceration.

The People suggest that Patheal does not conflict with Stillwagon (to which it does not expressly refer), in that Stillwagon involved no initial arrest and custody for the particular charge involved. In People v. Clark, supra, (at page 22) the court, we think properly, points out that The People v. Patheal belongs to that class of cases which hold that when authorities learn of an accused being in the penitentiary, they must take affirmative action to prosecute within the statutory time period, as no obstacle exists to bringing such defendant back for trial (e. g. People v. Gray, 83 Ill App2d 262, 227 NE2d 159 (1967); The People v. Bryarly, 23 Ill2d 313, 178 NE2d 326 (1961); The People v. Patheal, supra, and The People v. Swartz, 21 Ill2d 277, 171 NE2d 784 (1961)).

Defendant argues that for all practical purposes he was in custody under the DuPage County complaint and warrant when it was “lodged” with the Cook County jail authorities even though not physically handed to him. He argues that since he was notified of the charge and the bond fixed, for practical purposes he could consider himself to be in custody as even if he had made the bond in Cook County he would still be facing the bond in DuPage County before he could be released.

The practice of placing formal requests for notification of a prisoner’s release date, sometimes characterized as “hold orders” or “detainers,” is without any legal sanction in Illinois as far as we have been able to determine. The practice appears to be a matter of voluntary cooperation between authorities. Here the sending of the complaint and warrant to the Cook County jail authorities operated as a request to hold defendant on the DuPage County charge if defendant was released on the Cook County charge. But without actual service of process on the defendant (or an arrest without a warrant), we know of no theory on which it may be said that defendant was “in custody” on the DuPage County charge by reason of the detainer practice. While the unrestrained use of detainers has been criticized when indictments are relayed until time is served on a different charge, the problem is not the same when a defendant is merely waiting trial, with knowledge that he may face another trial in some other place upon termination of the proceedings and, that too, must be a “speedy trial.” (See Detainer and Speedy Trial, 31 U of Chi L Rev 535, 537-9.)

Both parties have noted the provisions of Ill Rev Stats 1967, c 38, § 103-5 (e) which in effect give the prosecution an additional 120 days from the end of a trial on one charge to try all remaining charges pending in the same county. The People argue that it would be anomalous for the legislature to intend that there be an additional period for multiple charges pending in a single county, but that as to charges pending in a different county only the one 120-day period-tolling at the same time in each county wherein multiple charges pend. Defendant suggests that the purpose of this section was to encourage “plea bargaining” on multiple charges pending in a county. The People, and we think logically, counter that the same opportunity for “plea bargaining” is present when multiple charges pend in different counties.

There is some merit in the argument that detention in any county is for the benefit of the state as a whole, and that some single period should be designated by the legislature as an implementation of a speedy trial to prevent the possibility of harassment of an accused who faces multiple charges in different counties. We cannot find, however, that the legislature has made this determination in the statute here involved.

We believe that People v. Clark, supra, was correctly decided. We find that defendant was not placed “in custody” on the DuPage County charge on the date the complaint and warrant were “lodged” with the Cook County jail authorities. Under our interpretation of the statute, the 120-day period began to run at the time when DuPage County authorities took defendant from the Cook County jail on the basis of the complaint and warrant. At that time he was “in custody” on the DuPage County charge.

In the view we have taken, we do not reach the alternative issue of whether defendant waived a speedy hearing on all charges by requesting a continuance as to the Cook County charges.

We, therefore, reverse and remand.

Reversed and remanded.

MORAN and ABRAHAMSON, JJ., concur.

       Defendant concedes the case to be in point on the facts but denies that the case properly interprets the present 120-day statute. It appears from oral argument that the opinion in the Clark case may have been published subsequent to the trial court’s ruling here.


text:
    Joseph M. Hemingway, d/b/a Hemingway Engineering, Plaintiff-Appellee, v. Skinner Engineering Company, a Corporation, Defendant-Appellant.
    Gen. No. 69-28.
    Second District.
    December 12, 1969.

      Carl J. Cipolla and Harry G. Fins, of Chicago, for appellant.
    Tyler and Pesking, of Aurora, for appellee.
   MR. JUSTICE DAVIS

delivered the opinion of the court.

The plaintiff, Joseph M. Hemingway, d/b/a Hemingway Engineering, a distributor of smokestacks and smoke abaters, brought this suit against the defendant, Skinner Engineering Company, a corporation, to recover the sum of $7,811 for services and materials furnished to the defendant on two individual job sites. The complaint alleged:

“1. That on or about August 13, 1965 the plaintiff was engaged in the business of building material and related products.
“2. That on or about the before-mentioned date and on days both prior and subsequent thereto, the plaintiff at the instance and request of the defendant furnished services and material to said defendant.
“3. That the reasonable value of the unpaid services and material is $7,811.00 which the defendant agreed to pay.
“4. That the same is wholly unpaid although payment has been duly demanded.
“WHEREFORE, plaintiff demands judgment against the defendant in the amount of $7,811.00 plus costs of suit.”

Before the trial, the defendant demanded and the plaintiff furnished a bill of particulars. The defendant filed an answer wherein it denied all of the allegations of the complaint, except paragraph 1 thereof. The case was tried before the court without a jury and judgment was entered for the plaintiff in the sum of $7,371. The defendant appealed.

On appeal, the defendant contends that the plaintiff did not prove the reasonable value of the unpaid services and materials; that the plaintiff’s complaint was predicated on a quantum meruit theory; and that the judgment must be reversed in that the plaintiff cannot allege a cause of action under the quantum meruit theory—that the defendant promised to pay the plaintiff the reasonable value of the services and materials furnished—, and recover on proof which supports only the indebitatus assumpsit theory—that the defendant owed a debt to the plaintiff which the defendant promised to pay.

The plaintiff contends that his pleadings were predicated upon, and his proof sustained, the indebitatus assumpsit theory; and that the trial court’s findings should not be disturbed unless clearly against the preponderance of the evidence.

The origin and development of the action of assumpsit is involved and interesting, but need not be restated in this opinion. At common law there were two forms of the action of assumpsit—special and general. Generally speaking, special assumpsit was a proper remedy where there was an express contract, while general assumpsit would lie under certain circumstances where there was an express contract and where a contract was implied. Such circumstance existed where a contract has been fully performed and nothing remained but to pay the money. The various forms of general assumpsit, known as the common counts, were: indebitatus assumpsit; the quantum counts (quantum meruit and quantum valebant); the money counts (money had and received, money lent and money paid); and the count upon an account stated. See: Banik v. BishopStoddard Cafeteria Co., 288 Ill App 174, 178-183, 5 NE2d 868 (1937); 1 Am Jur2d (Actions), pp 551-557.

Under the common law of this State, indebitatus assumpsit was one of the common counts used to recover a debt for labor, material or other personal services furnished by the plaintiff where there was a subsequent promise to pay and the remuneration was to be in money. Foster v. McKeown, 192 Ill 339, 344, 345, 61 NE 514 (1901); Banik v. Bishop-Stoddard Cafeteria Co., supra, 179. However, the use of the common counts in pleadings is now specifically prohibited by section 33(1) of the Civil Practice Act (Ill Rev Stats 1967, c 110, par 33(1)). Also see: Joint Committee Comments, SHA, c 110, § 33, pp 374-375.

It is obvious that the use of the common-count allegations violate the spirit and letter of the requirement of section 33(1) of the Act, that all “pleadings shall contain a plain and concise statement of the pleader’s cause of action, . . . .” (Ill Rev Stats 1967, c 110, par 33(1).) The common counts do little more than give notice of the general nature of the plaintiff’s claim, and they fail to inform the defendant of the real issues to be tried. While the elements of a cause of action may be contained therein, the legal consequences of the words “indebted,” “agreed,” and “promised” are carried to such an extreme as to make them fictitious allegations.

On the subject of forms of action, section 31 of the Civil Practice Act provides:

“Neither the names heretofore used to distinguish the different ordinary actions at law, nor any formal requisites heretofore appertaining to the manner of pleading in those actions, respectively, are necessary or appropriate, and there shall be no distinctions respecting the manner of pleading between actions at law and suits in equity, other than those specified in this Act and the rules. This section does not affect in any way the substantial averments of fact necessary to state any cause of action either at law or in equity.”

(Ill Rev Stats 1967, c 110, par 31.)

Section 42 of the Act deals with the matter of insufficient pleadings. It provides:

“(1) If any pleading is insufficient in substance or form the court may order a fuller or more particular statement. If the pleadings do not sufficiently define the issues the court may order other pleadings prepared.
“(2) No pleading is bad in substance which contains such information as reasonably informs the opposite party of the nature of the claim or defense which he is called upon to meet.
“(3) All defects in pleadings, either in form or substance, not objected to in the trial court are waived.”

(Ill Rev Stats 1967, c 110, par 42.)

The object of a bill of particulars is to supply a deficiency in a pleading, and when a bill of particulars has been demanded and furnished, its effect is to limit and restrict the pleader, on the trial, to proof of the particular cause of action or defense mentioned therein. Bloom, v. Nathan Vehon Co., 341 Ill 200, 206, 207, 173 NE 270 (1930). It is where the allegations of a pleading are wanting in details, that the opposite party is entitled to a bill of particulars. This is one way of remedying an insufficient pleading.

In deciding whether the plaintiff stated facts sufficient to allege a cause of action in the case at bar, the court must look to the plain and fair intendment of the language used by the plaintiff in his pleadings, including the bill of particulars, and the facts which may be reasonably implied therefrom. Annerino v. Dell Pub. Co., 17 Ill App2d 205, 210, 149 NE2d 761 (1958). “No pleading is bad in substance which contains such information as reasonably informs the opposite party of the nature of the claim or defense which he is called upon to meet.” (Ill Rev Stats 1967, c 110, par 42(2), supra.) Also, the Civil Practice Act “shall be liberally construed, to the end that controversies may be speedily and finally determined according to the substantive rights of the parties.” (Ill Rev Stats 1967, c 110, par 4.)

The reforms of the Civil Practice Act have simplified court procedures and have enhanced the administration of justice in Illinois. In discussing the basic philosophy of the Act, this court in McMillen v. Rydbom, 56 Ill App2d 14, 205 NE2d 813 (1965), at pages 29 and 30 stated:

“There is, however, a more compelling reason for our decision. It lies in the basic purpose of the Civil Practice Act: the removal of barriers which prevent the trial of a case on its merits and the facilitation of procedures to accomplish this end. In adopting the Civil Practice Act, the General Assembly ‘acted in response to prevailing dissatisfaction with procedural doctrines which had exalted the role of a trial as a battle of wits and subordinated its function as a means of ascertaining the truth.’ Krupp v. Chicago Transit Authority, 8 Ill2d 37, 41, 132 NE2d 532 (1956). The overall philosophy of liberal construction of the Practice Act precludes the determination of rights of litigants upon the technicalities of pleading and procedure when such rights may, within the spirit and letter of the Act, be adjudicated on their merits. Fleshner v. Copeland, 13 Ill2d 72, 77, 147 NE2d 329 (1958); People ex rel. Terry v. Fisher, 12 Ill2d 231, 145 NE2d 588 (1957); Hruby v. Chicago Transit Authority, 11 Ill2d 255, 142 NE2d 81 (1957); People ex rel. Noren v. Dempsey, 10 Ill2d 288, 139 NE2d 780 (1957); Ill Rev Stats 1963, c 110, par 4.”

In view of the provisions of section 33(1) of the Civil Practice Act, the plaintiff’s cause of action would lie neither in indebitatus assumpsit nor under the quantum counts. Our courts no longer pay homage to the forms, labels and technicalities of the pleadings of yesteryears. Form is no longer exalted over substance, and the courts should stand intransigent against any retreat from the enlightened provisions of the Civil Practice Act. Whether or not the plaintiff’s action will lie should be tested by the requirement that his complaint must contain a plain and concise statement of his cause of action.

The complaint was not artfully drawn. It would have been subject to dismissal upon proper motion. However, the defendant did not see fit to file such motion, but rather, chose to have the deficiencies of the complaint supplied by a bill of particulars. Upon the filing of such bill, the facts stated in the complaint and in the bill of particulars, and all reasonable intendments therefrom, constituted the plaintiff’s cause of action.

The bill of particulars specified: the services which the plaintiff claimed he rendered and furnished to the defendant, the dates and hours when the alleged services were rendered and the dates when materials were allegedly furnished on each job, and the value of such materials. It stated that the alleged agreement originated as an oral one, but that various written memoranda were exchanged between the plaintiff and the defendant, in-eluding correspondence, bills and other items; and that the alleged agreement of the defendant was to pay the price, as invoiced, for the materials within 30 days after the delivery thereof. It set forth the dates when payment was demanded by the plaintiff from the defendant in connection with each of the two jobs in question.

The bill of particulars was filed March 8,1968, and the defendant filed answer to the complaint on October 8, 1968. The answer admitted the allegations of paragraph 1 of the complaint, and denied the remaining allegations thereof. It made no reference to the allegations of the bill of particulars.

From the allegations of the complaint, the matters set forth in the bill of particulars, and from the evidence adduced, we believe that the plaintiff was claiming a cause of action under express oral contracts. The record indicates that the defendant understood the nature of the plaintiff’s claims against it. We believe that the plaintiff’s pleadings contained sufficient allegations to sustain a cause of action based on express oral contracts.

At the trial, the defendant’s counsel made an opening statement in which he said:

“We agreed, as you see by our answer, that there was a contract entered into between the parties.
“Our position, and I think the evidence will disclose, that the Plaintiff failed to live up to his part of the bargain; that he did not deliver what he had contracted to deliver to the Defendant, and in connection with the first transaction referred to by Plaintiff’s counsel, this item was returned to the Plaintiff.
“The Plaintiff in his opening statement says that they received a credit. We will show evidence that the credit transaction was improper. Secondly, as to the second job, we will also show that again the Plaintiff failed to comply with his part of the contract; that no monies were due to the Plaintiff as a result thereof; and therefore, the Defendant denies that he owes any money at al, to the Plaintiff as a result of this alleged contract.
“But briefly, that is our side now.”

We acknowledge that under section 31 of the Civil Practice Act, which abolished the labeling of actions that existed under common law plead'ng, the requirement remained that the complaint must contain the averments of fact necessary to state a cause of action, and, we believe that the allegations of the complaint and of the bill of particulars in this case meet this mandate.

Under the evidence in this action, we do not find such variance in the allegations and proof as to require a reversal of the trial court. We recognize that the plaintiff must recover, if at all, on and according to the case he has made by his pleadings. He cannot make one case by his pleadings and have judgment on another and different ground, even though the latter is established by proof. Broberg v. Mann, 66 Ill App2d 134, 137, 138, 213 NE2d 89 (1965). However, the rule is that a variance is not deemed material unless it misleads the adverse party to his prejudice. Stevenson v. Meyer, 10 Ill2d 335, 339, 340, 139 NE2d 740 (1957). In the case at bar, we do not believe that the defendant was misled.

Despite, or perhaps because of, the ineptness of the plaintiff’s complaint and the brevity of the defendant’s answer, the parties formed their own issues during the trial. They agreed that oral contracts had been entered into whereby the plaintiff was to furnish labor and materials to the defendant in connection with two specific jobs. Under the contract with reference to the Chicago Extruded Metals job, the price was agreed upon and the defense to this claim was that the plaintiff guaranteed that the smoke abater would work and it failed to do so. Under the contract relative to the Drying Systems job, the terms relative to the labor and materials to be furnished were undisputed, and the dispute arose over the price billed by the plaintiff. The defendant denied that the billed price was the correct price.

Thus, in this case, the parties, irrespective of the pleadings, formed their own issues during trial, and an objection that an issue was not raised in the pleadings, may be waived by the conduct at the trial of the objecting party, or by such party introducing evidence on the issue. Hedrich v. Village of Niles, 112 Ill App2d 68, 250 NE2d 791 (1969).

In McKinney v. Nathan, 1 Ill App2d 536, 117 NE2d 886 (1954), at page 543, the court stated:

“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 the testimony offered by the parties and by their conduct at the trial, all deficiencies with reference to any variations between the allegations and the proof were waived.

Many of the material facts in issue were disputed. The trial magistrate heard the conflicting evidence, considered the exhibits and the testimony of each of the witnesses in the light of the totality of the attending circumstances, determined the credibility of the witnesses, the weight to be given to their testimony and then decided the pertinent factual issues. Ours is not the fact-finding function; nor do we concern ourselves with resolving conflicts in the evidence, its weight or the credibility of the witnesses. These are. matters for the trier of the facts. In the case at bar, the trial court heard and observed the witnesses as they testified and, from the totality of his perception, determined the issues which the parties had formed at the trial in favor of the plaintiff. We uphold the decision of the trial court in this respect.

Upon appeal, we review the case upon the law involved and with reference to factual determinations, and we reverse the judgment of the trial court whenever we find such judgment contrary to the law or clearly against the manifest weight of the evidence. Elgin Lumber &. Supply Co., Inc. v. Malenius, 90 Ill App2d 90, 97, 232 NE2d 319 (1967); Revcor, Inc. v. Fame, Inc., 85 Ill App2d 350, 356, 228 NE2d 742 (1967).

After giving full consideration to the conflicting evidence on the issues in the case at bar, we cannot hold that the findings of the trial comt were against the manifest weight of the evidence. Accordingly, the judgment of the trial court is affirmed.

Judgment affirmed.

MORAN, P. J. and SEIDENFELD, J., concur.


author: MR. PRESIDING JUSTICE DEMPSEY

text:
    People of the State of Illinois, Plaintiff-Appellee, v. William J. Horton, Defendant-Appellant.
    Gen. No. 51,934.
    First District, Third Division.
    December 11, 1969.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Professor James R. Thompson, Northwestern University School of Law, Theodore A Gottfried, and James J. Doherty, Assistant Public Defenders, of counsel) , for appellant.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane, Assistant State’s Attorney, and Francis X. Riley, Special Assistant State’s Attorney, of counsel), for appellee.
   MR. PRESIDING JUSTICE DEMPSEY

delivered the opinion of the court.

After a trial without a jury, the defendant, William Horton, was found guilty of theft and was sentenced to two to three years in the penitentiary. His contention on appeal is that he was denied effective assistance of counsel at his trial.

On April 21, 1966, Laurence Allen parked his automobile, which had been leased from the Hertz Corporation, at a Chicago restaurant. When he left the restaurant he discovered his car was missing and he reported the theft to the police. The automobile was valued at $2,400.

About midnight on May 17, 1966, two Chicago police officers stopped an automobile for driving with bright headlights. The driver of the car was William Horton. During the ensuing conversation between Horton and the officers, papers were discovered in the glove compartment which identified the car as leased by the Hertz Corporation to Laurence Allen. An officer testified that he questioned Horton about these papers and that he first stated that he owned the car but la;er said that he had borrowed it from a friend named Rcnald Allen who lived at 5742 South State Street, Chicago. The car’s license number was among those on a list of stolen automobiles and Horton was taken into custody.

Shortly thereafter an officer went to the State Street address given by Horton. This search and a subsequent investigation proved unsuccessful in locating anyone by the name of Allen at that address.

Horton testified that on the night of May 17th he had overslept and because he was late for work he walked across the street to a tavern and borrowed the car from William Stewart, who was also known as Ronald Allen. He said that he was driving to work when he was stopped by the police officers; that he informed them that he had to use the bright lights because the regular right, front headlight was not working, and that he had not fixed it because the car belonged to a friend. According to Horton, one of the officers searched his car and after the search asked him for the name of the friend who had loaned him the car. He responded that the friend’s name was William Stewart but that he was also known as Ronald Allen. He further testified that he informed the police that he knew nothing about the contents of the glove compartment. He denied knowing that the car had been stolen.

It appears from the record that Horton had been in custody 118 days before he was arraigned and that at his arraignment the State demanded an immediate trial so as to prevent his discharge under the Four Term Act (Ill Rev Stats 1965, c 38, par 103-5). Horton’s privately retained attorney did not request a continuance or additional time to prepare his case and the cause went to trial on the 119th day of the defendant’s incarceration.

The defendant contends that he was denied effective representation by his attorney because the attorney did not: (1) request a pretrial hearing to suppress evidence; (2) did not move to exclude witnesses; (3) did not request police reports or grand jury testimony for the possible impeachment of the State’s witnesses and (4) did not make other motions which the defendant’s appellate counsel characterizes as “routine.”

When an accused is represented by counsel of his own choosing, his conviction will not be reversed for incompetency of counsel unless it can be said that the representation was of such low caliber as to amount to no representation at all or that it was such as to reduce the trial to a farce. People v. Strader 23 Ill2d 13, 177 NE2d 126 (1968); People v. McCoy, 80 Ill App2d 257, 225 NE2d 123 (1967). In rejecting a defendant’s contention that his retained counsel was incompetent as evidenced by a series of omissions at trial, the court in People v. Underhill, 38 Ill2d 245, 254, 230 NE2d 837 (1967) said:

“However, in this case the defendant is represented by counsel of his own choice and ‘the court has held, almost without exception, that the failure of such counsel to exercise care and skill in the trial of the case does not afford a basis for reversing a judgment of conviction.’ (People v. Morris, 3 Ill2d 437, 444.)”

Horton’s primary contention is that his attorney was incompetent in not moving to suppress the papers found in the car’s glove compartment. He maintains that these papers were illegally seized and were inadmissible at the trial. Although the defendant is correct in stating that an arrest for a traffic violation does r ot automatically justify a search of the driver or the vehicle (People v. Reed, 37 Ill2d 91, 227 NE2d 69 (1967); People v. Watkins, 19 Ill2d 11, 166 NE2d 433 (1960)), an examination of the record does not justify the conclusion that the search was so patently illegal that a moti on to suppress would have been allowed had it been made.. It is only by accepting as true the defendant’s testimony about the search, that a case can be made out for its illegality. The trial court rejected Horton’s testimony that he borrowed the car from a friend; there is no reason to believe that the court would have accepted his testimony in reference to the search.

The testimony of the police officer does not reveal whether the defendant consented to the opening of the glove compartment, whether he opened it himself or whether the officer opened it. The ambiguities surrounding the identification papers are reflected in the following portion of the officer’s testimony:

Q. “Did he [the defendant] show you any identification of the car, Officer?”
A. “No, he didn’t. He said the identification for the car was in the glove comparment.”
Q. “And did he pull it out or did you look at it, Officer?”
A. “I looked at it at a later time.”

The defendant’s trial counsel may have had knowledge of facts surrounding the arrest and search that do not appear in the record and which would have made a pretrial motion to suppress futile. The failure of retained counsel to move to suppress illegally seized evidence does not of itself constitute incompetency so as to warrant reversal. People v. Washington, 41 Ill2d 16, 241 NE2d 425 (1968); People v. Green, 36 Ill2d 349, 223 NE2d 101 (1967). Even more so then, an unclear record relative to the probable cause for the search, such as we have in this case, would not warrant a reversal on the ground of incompetency of counsel.

The other asserted omissions of defense counsel prior to and during the trial do not evidence his incompetency. None of these omissions standing alone or even when viewed together prompt the conclusion that the attomey’s representation was of such a caliber that the trial was reduced to a farce or amounted to no representation at all. Horton’s entire defense rested upon the credibility of his assertion that he had innocently borrowed the car from a friend whose whereabouts were never discovered. For this reason, little significance can be placed upon the attorney’s not requesting material for possible impeachment, or upon his not excluding witnesses or upon the other omissions cited by the defendant.

Nor can it be said that the attorney revealed an “apparent lack of knowledge of basic criminal procedures” as was the case in People v. DeSimone, 9 Ill12d 522, 138 NE2d 556 (1956). His calculated inactivity during the defendant’s custody and his refusal to ask for a continuance on the 118th day, reveal an understanding of the discharge provisions of the Four Term Act. At the close of the State’s case, he moved to quash the indictment on the ground that the date in the indictment did not conform to the proof at trial; he moved for dismissal on the ground that the prosecution had not established its case beyond a reasonable doubt; he produced testimony at the hearing in mitigation and aggravation and succeeded, despite the State’s request for a sentence of four to seven years, in having the court impose a sentence of two to three years on a defendant who had been convicted of two prior felonies.

The judgment of the Circuit Court is affirmed.

Affirmed.

SCHWARTZ and McNAMARA, JJ., concur.


author: MR. JUSTICE BURMAN

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Robert T. Keyes, Defendant-Appellant.
    Gen. No. 52,781.
    First District, First Division.
    December 15, 1969.
    Gerald W. Getty, Public Defender of Cook County, of Chicago (Professor James R. Thompson, Northwestern University School of Law, Theodore A. Gottfried and James J. Doherty, Assistant Public Defenders, of counsel), for appellant.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane, Assistant State’s Attorney, of counsel), for appellee.
   MR. JUSTICE BURMAN

delivered the opinion of the court.

The appellant, Robert T. Keyes, has appealed his conviction for murder, after a trial by a jury, for which sentence was fixed at fourteen to twenty years in the penitentiary. He contends that the giving of a flight instruction in the absence of flight was error and that the court committed error by convening without a court clerk being present during a portion of the proceedings.

We will briefly summarize the evidence, The homicide occurred on November 26, 1966, at 8:00 p. m. in the apartment of Frank Jordan, the deceased. Mrs. Ruth Jordan, wife of the deceased, and her eight children, whose father is the defendant, Mrs. Jordan’s former husband, were at home at the time. Mrs. Jordan testified that her daughter, Linda, told her someone was coming up the stairs. When Mrs. Jordan asked who it was, a man answered “the boogieman” and then “L. C.” which were the initials of her brother. She opened the door and the defendant entered with a shotgun in his hand. Mrs. Jordan screamed “shotgun” and ran toward the bedroom where her husband was. She testified that her husband came out of the bedroom unclothed and with nothing in his hands. She said that as Mr. Jordan passed her, the defendant shot him at close range and killed him. Her daughter, who was fourteen, corroborated her mother’s testimony.

The defendant concurred with his former wife as to how he gained entrance to the apartment, hut his version of what took place thereafter is different. He said that he had just returned from a hunting trip and carried his shotgun at his side as he entered the apartment to visit his children. When he entered the apartment, his former wife screamed and attempted to grab the gun. The deceased, who was nude, came running at him with a kitchen knife in his hand. The defendant testified that he was unable to retreat and shot the deceased out of fear for his life.

The first point urged is that the giving of a flight instruction was improper because there was no evidentiary basis for it. The record reveals that after the incident the defendant went to Indiana where he disposed of his weapon. When he returned to Chicago, the defendant did not go to his own home, but went to a friend’s home. The defendant claimed that he had gone to 26th and California to see if he was wanted for questioning, but was told that he wasn’t. However, Officer Claude Wiley, Jr. testified that the police had been looking for the defendant since they learned of the shooting. They apprehended him on December 17, 1966, over three weeks after the shooting, outside a drugstore.

It is thus uncontradicted that although the defendant claimed self-defense, he left after the homicide not for his home, but for Indiana where he disposed of his shotgun. When he returned to Chicago he did not then go to his home, but went instead to a friend’s home. He was not apprehended in a matter of hours or at his residence, but was arrested over three weeks later after a police search for him. Whether these facts amounted to flight and could thus be considered as tending to prove guilt was a proper question for the jury. People v. Lofton, 64 Ill App2d 238, 244, 212 NE2d 705, 708. The jury was not required to believe the defendant’s assertion that he went to 26th and California to surrender and was told that he wasn’t wanted. The giving of the flight instruction was therefore proper since there was an evidentiary basis for it.

The cases on which the defendant relies have no application to the facts of the present case. In People v. Herbert, 361 Ill 64, 196 NE 821, there was no evidence of flight except the testimony of a police officer that he had been looking for the defendant and was unable to find him for three months. In that case, the defendant denied he was the person who shot and killed the deceased and testified he had never seen or heard of the deceased. In People v. Weisberg, 396 Ill 412, 71 NE2d 671, cert denied 331 US 826, and People v. Johnson, 75 Ill App2d 231, 220 NE2d 261, the defendants were apprehended within an hour of the crime at their homos. In the present case, the defendant admitted leaving the jurisdiction and then returning, not to his residence, but to a friend’s home. In Weisberg and Johnson where, unlike the present case, there was no evidentiary basis for the giving of the flight instruction, it was held that the improper giving of the flight instruction was not reversible error since the jury could distinguish between fleeing and going home.

It is next contended that the absence of the court clerk during part of the proceedings, after the close of the evidence, was reversible error. The defendant has not alleged any way in which this prejudiced his case. After reviewing the record, we consider this contention to be without merit.

For the reasons given the judgment is affirmed.

Affirmed.

ADESKO, P. J. and MURPHY, J., concur.


author: MR. JUSTICE DAVIS MORAN, P. J.,

text:
    James C. Young, Sr., Plaintiff-Appellant, v. James A. Hansen, Chief of Police of the City of Elgin, Illinois, Lt. Charles P. Miller, Officer Kenneth Luecht, Officer Richard Lund, Officer Al Grantham, Officer Robert L. Schroeder, Officer R. W. Heneise, Robert L. Brunton, City Manager of Elgin, Illinois, City of Elgin, a Municipal Corporation, Elgin Y & C Cab Co., Inc., a Corporation, Edward Darnell and Ward Lowry, Defendants-Appellees.
    Gen. No. 68-174.
    Second District.
    July 3, 1969.

      MORAN, J., dissenting.

      L. Louis Karton, of Chicago, and Edward Puklin, of Elgin, for appellant.
    Morgan, Brittain, Ketcham & Imming, John P. Callahan, Jr., and Gordon D. Abbott, of Elgin, for appellees.
   MR. JUSTICE DAVIS

The plaintiff, James C. Young, Sr., commenced this action for a declaratory judgment against the municipal defendants, City of Elgin, Robert L. Brunton, City Manager of Elgin, James A. Hansen, Chief of Police of the City of Elgin, Lt. Charles P. Miller, Officers Kenneth Luecht, Richard Lund, A1 Grantham, Robert L. Schroeder and R. W. Heneise, members of that City’s Police Force, and also against Elgin Y & C Cab Co., Inc., and two of its agents and employees—Edward Darnell and Ward Lowry. The municipal defendants, and the Cab Co., together with Darnell and Lowry, filed separate motions to dismiss, which were allowed. The plaintiff elected to stand on his complaint, and judgment was entered against him. This appeal followed.

The only questions raised are based on the pleadings. In essence, the plaintiff’s complaint alleged that the plaintiff had received an operator’s registration card from the City of Elgin, permitting him to operate a taxicab business in the City, and that he had been engaged in operating his cabs until March 17, 1967, when the defendant, Hansen, revoked his operator’s registration card, allegedly because the plaintiff had been found guilty of disorderly conduct on April 27, 1967. Other charges, however, were apparently pending against the plaintiff on the date of the revocation. The complaint also set out the municipal ordinances governing the issuance of the operator’s registration cards.

The ordinances provided that no registration card should be issued to any person not of good moral character, or who is a repeated violator of the Illinois Motor Vehicle Laws; and that “Operator’s registration cards shall be revoked by the Chief of Police and cancelled for repeated violations of traffic laws or ordinances.” The complaint further alleged that no written charges had been served on the plaintiff; that no hearing had been held prior to the revocation; and that the plaintiff had demanded the restoration of his operator’s registration card, but that the defendants, Hansen and Brunton, had rejected his demands and had refused to restore it.

The complaint then set forth allegations of conspiracy on the part of the defendants, and alleged that they entered into a conspiracy and scheme maliciously to harass and persecute him in the operation of his taxicab business, and to destroy the value of his business, and that they wrongfully and without justification, under the guise of enforcing the statutes of the State of Illinois and ordinances of the City of Elgin, arrested and prosecuted him with the intention of procuring the revocation of his operator’s registration card in order to eliminate him as a competitor of the defendant, Elgin Y & C Cab Co., Inc. Various acts in furtherance of the conspiracy were then alleged. The complaint prayed for a declaration that the plaintiff be entitled to a restoration of his operator’s registration card; for an injunction to restrain the defendants from engaging in a conspiracy against the plaintiff to destroy his business; and for a separate trial to determine the damages sustained by the plaintiff, due to the alleged conspiracy.

The municipal defendants charge that the plaintiff is not entitled to the remedy of a declaratory judgment in that he is really seeking a remedy available in a mandamus action, an injunction act, and an action for money damages. The defendants’ motions charge that a declaratory judgment action was not intended to provide a remedy where there are other existing, adequate, recognized remedies, and they cite: Goodyear Tire & Rubber Co. v. Tierney, 411 Ill 421, 430, 104 NE2d 222 (1952); Goldberg v. Valve Corp. of America, 89 Ill App2d 383, 391, 233 NE2d 85 (1967); Stern v. Material Service Corp., 44 Ill App2d 198, 214,194 NE2d 511 (1963); Coven Distributing Co., Inc. v. Chicago, 346 Ill App 448, 453, 105 NE2d 137 (1952).

The Declaratory Judgments Act (Ill Rev Stats 1967, c 110, par 57.1) does not become inapplicable merely because relief or remedies other than a declaration of rights are sought. Subsection (1) provides that a declaration of rights may be made “whether or not any consequential relief is or could be claimed.” Subsection (2) provides that the relief of a declaration of rights may be sought alone, “or as incident to or a part of a complaint . . . seeking other relief as well . . . .” Subsection (3) relates to the granting of further relief based upon a declaration of rights after the declaration has been made.

The Historical and Practice Notes to section 57.1 (SHA ch 110, pages 126-135) indicate that the declaratory judgment remedy provides a new, additional, cumulative and alternative procedural method for the judicial determination of substantive rights and duties. It may, or may not be that a mandamus action could have afforded the plaintiff at least part of the relief he sought; but, even so, the availability of such a remedy is not sufficient to bar his right to seek a declaratory judgment. In American Civil Liberties Union v. Chicago, 3 Ill2d 334, 353, 121 NE2d 585 (1954), the court stated that the contention that the availability of affirmative relief by way of mandamus bars an action for declaratory judgment “is refuted by explicit language of section 57^ (now 57.1) of the Civil Practice Act.” The court then explained its holding in Goodyear Tire & Rubber Co. v. Tierney, supra, stating: “The case in no way suggests that an action for declaratory relief is defeated by the mere existence of another form of action which could presently be employed.”

The plaintiff’s complaint details a legal dispute between the plaintiff and the several defendants sufficiently, in this regard, to withstand a motion to dismiss. The availability of other remedies and the intention to obtain additional relief, as evidenced by the prayer in the complaint, do not preclude the form of action chosen by the plaintiff. The language of the statute and the interpretation given .it by our courts evince a purpose to maintain the scope of declaratory judgment relief broad and liberal and not restricted by technicalities. If there is no particular reason for denying the use of this procedure when another remedy is available, the declaratory judgment action should also be available. Elm Lawn Cemetery Co. v. City of Northlake, 94 Ill App2d 387, 391, 392, 237 NE2d 345 (1968); La Salle Cas. Co. v. Lobono, 93 Ill App2d 114, 118, 236 NE2d 405 (1968); Koziol v. Village of Rosemont, 32 Ill App2d 320, 327, 328, 177 NE2d 867 (1961).

The complaint sets forth the provisions of the ordinance, which state that a registration card shall be revoked and cancelled for repeated violations of traffic laws or ordinances. It further alleges that the plaintiff’s registration card was revoked on March 17,1967, on the stated ground of one disorderly conduct finding—which took place on April 27, 1967, approximately one month after the registration card was revoked. This seemingly incongruous allegation is later explained by the allegation that the plaintiff had earlier pleaded guilty to the charge, upon receiving assurance that the plea would not be used as the basis of any action to take away his licenses or permits to engage in the taxicab business. The complaint asserts that the action is the result of the concerted conspiracy among the several defendants, and it specifically enumerates a number of acts allegedly done as a result of and in furtherance of the conspiracy.

These acts, and the facts set forth in the complaint, are sufficiently particular to state a cause of action. By its very nature, a conspiracy, if one exists, normally precludes the one who is its object from being in a position to charge, with complete particularity, the details of the conspiracy. In a civil case, the acts alleged to have been done in pursuance of a conspiracy, and not the conspiracy itself, are the gist of the action. B. R. Paulsen & Co., Inc. v. Lee, 95 Ill App2d 146, at 151, 152, 237 NE2d 793 (1968); Ammons v. Jet Credit Sales, Inc., 34 Ill App2d 456, 465, 181 NE2d 601 (1962). We believe that the plaintiff’s complaint, seeking relief by means of a declaratory judgment from the effects of the alleged conspiracy to put him out of the taxicab business, states a good cause of action.

The municipal defendants also moved to dismiss the complaint on the grounds of the Local Government and Governmental Employees Tort Immunity Act (Ill Rev Stats 1967, c 85, par 1-101, et seq.). The defendants cite the following sections of this Act:

“Sec. 2-201. Except as otherwise provided by Statute, a public employee serving in a position involving the determination of policy or the exercise of discretion is not liable for an injury resulting from his act or omission in determining policy when acting in the exercise of such discretion even though abused.”
“Sec. 2-206. A public employee is not liable for an injury caused by his issuance, denial, suspension or revocation of or by his failure or refusal to issue, deny, suspend or revoke, any permit, license, certificate, approval, order or similar authorization where he is authorized by enactment to determine whether or not such authorization should be issued, denied, suspended or revoked.”
“Sec. 2-104. A local public entity is not liable for an injury caused by the issuance, denial, suspension or revocation of, or by the failure or refusal to issue, deny, suspend or revoke, any permit, license, certificate, approval, order or similar authorization where the entity or its employee is authorized by enactment to determine whether or not such authorization should be issued, denied, suspended or revoked.”

There have been very few cases dealing with the scope and meaning of the Immunity Act. An extensive analysis of the Act is found in Tort Liability of Local Governments and their Employees: An Introduction to the Illinois Immunity Act, David C. Baum, 1966 Ill Law Forum 981. The author points out that the immunity afforded by section 2-201 to a public employee in exercising discretion is “in determining policy,” and concludes that this immunity is intended to protect fairly high level officers in making important policy determinations. (P 999.) The author further points out that the court decisions of this State had previously limited the discretionary immunity to good faith errors and not to instances of determinations based upon malice. See: Fustin v. Board of Education of Community Unit Dist. No. 2, 101 Ill App2d 113, 121, 242 NE2d 308 (1968); Keane v. City of Chicago, 98 Ill App2d 460, 462, 240 NE2d 321 (1968); Paoli v. Mason, 325 Ill App 197, 209, 59 NE2d 499 (1945). We agree with the conclusions reached by the author, that in view of the prior Hlinois law, the immunity afforded by section 2-201—while not expressly referring to the question of malice—extends only to those types of acts not resulting from corrupt or malicious motives. (P 1004.)

The. author, on the same page, observes, however, that malicious acts should not be actionable if they fall within the specific immunity sections other than section 2-201. Sections 2-104 and 2-206, relied upon by the defendants, are such sections. They purport to grant immunity, without exception, for acts of issuing, denying, suspending or revoking a license or certificate where the public official is authorized to make the determination of what is to be done. While we are not certain that such a conclusion is warranted—particularly in view of the prior decisions of this State extending immunity in such cases only where discretion is exercised in good faith and not as a result of wanton or malicious motives—these particular sections are not determinative of the issue before this court.

The complaint alleges that the various defendants entered into a scheme and conspiracy maliciously to harass the plaintiff in the operation of his business; to arrest and prosecute him; to abuse process to the end that his business should be destroyed and he should be eliminated from competition.

Section 2-202 of the Immunity Act provides:

“A public employee is not liable for his act or omission in the execution or enforcement of any law unless such act or omission constitutes willful and wanton negligence.”

And section 2-208 provides:

“A public employee is not liable for injury caused by his instituting or prosecuting any judicial or administrative proceeding within the scope of his employment, unless he acts maliciously and without probable cause.”

We believe that in view of the sound public policy expressed in the foregoing sections and expressed in the prior decisions of this State, a public official may not hide behind the cloak of immunity if he maliciously and intentionally misuses the powers of his office.

Consequently, we believe that the plaintiff’s complaint adequately states a cause of action. The revocation of the registration card, charged in the complaint, was but one final step in carrying out the alleged conspiracy. We do not believe that sections 2-104 and 2-206 can afford protection from the charge of conspiracy alleged in the complaint, which also asserts acts in furtherance of the conspiracy of the type which are the subject matters of sections 2-202 and 2-208. Whether or not the allegations have foundation in fact, can only be determined upon a trial on the merits and such issue is not before us on this appeal. For the foregoing reasons, the cause is reversed and remanded for further proceedings not inconsistent herewith.

Reversed and remanded.

ABRAHAMSON, J., concurs.

MORAN, P. J., dissents.

MORAN, P. J.,

dissenting:

The majority concludes that the complaint filed by the plaintiff herein states a cause of action, (one in civil conspiracy), and that the trial court therefore erred in not allowing the complaint for declaratory judgment to stand. I respectfully, but most strongly, disagree and thus dissent.

A cursory reading of the complaint, necessarily appended hereto for a complete understanding, automatically raises the impression that the pleader is attempting to allege three separate causes of action in a single-count complaint—one for injunctive relief, another founded on mandamus and the third based upon a civil conspiracy.

From a procedural standpoint, the form of the pleading is against section 33 of the Civil Practice Act (Ill Rev Stats 1967, c 110, § 33) wherein it states that separate causes of action upon which separate recovery may be had shall be stated in separate counts. It is wrong to assert that a declaratory judgment action is not susceptible to the same procedural rules governing forms of pleadings as other actions. This is especially true when we consider the fact that declaratory judgment had its birth in the Civil Practice Act creating the very rule (Ill Rev Stats 1967, c 110, § 57.1). It must be kept in mind that declaratory judgment is a remedy for a cause of action and is not a cause of action itself.

More important than the procedural aspect is the substantive question involved. Does the complaint state a cause of action for civil conspiracy as concluded by the majority? I feel that it does not and will confine my comments to this one facet (although I believe there to be many additional reasons for affirming the trial court’s decision).

Damages is an essential element in a cause of action based upon a civil conspiracy. As a matter of fact, the gist of the action is the damage arising out of a civil wrong, and not the conspiracy itself, that creates the cause of action. Pustelniak v. Vilimas, 352 Ill 270, 277, 185 NE 611 (1933); B. R Paulsen & Co., Inc. v. Lee, 95 Ill App2d 146, 151-152, 237 NE2d 793 (1968). See also, 16 Am Jur, Conspiracy, §§ 43, 44, 53, 58, and the supplements thereto.

Damages, in some common-law actions, may be presumed and therefore it is not necessary to plead the same. Civil conspiracy is not such an action. Since damages cannot be presumed, it then becomes necessary that the plaintiff plead, not only the fact that he has been damaged, but also the amount he believes he has been damaged. Nowhere in the body of the complaint nor in the prayer for relief has the plaintiff set forth the amount in which he has been damaged. The defect cannot be cured by stating that defendants may file interrogatories or take discovery depositions. Where the plaintiff fails to plead an element necessary to his cause of action the result is that he has failed to state a cause of action. This is not being overly technical; it is as basic as a foundation to a house. Were it not for the basic or substantive rules, not the procedural rules, what would prevent the filing of a newspaper clipping setting out a particular event in place of a complaint?

Therefore, I dissent from the majority opinion in this case wherein it is claimed that the plaintiff has stated a cause of action based upon civil conspiracy.

       “1. Plaintiff is the licensed owner of four taxicabs in the City of Elgin, Illinois and on to wit September 10, 1965, received from defendant, City of Elgin, a municipal corporation, an Operator’s Registration Card, pursuant to the provisions of Chapter 28, section 28-1302 (b) Municipal Code of Elgin.
      “2. He has been engaged in the taxicab business under the name and style of Red Top Cab Co., and has individually operated a taxicab in said City of Elgin until said Operator’s Regístratian Card, No. 16, for the year 1967, was revoked on to wit, March 17, 1967 by defendant, James A. Hansen, Chief of Police of the City of Elgin.
      “3. The stated ground for said revocation was that plaintiff had been found guilty of disorderly conduct on April 27, 1967.
      “4. Chapter 28, sections 1301-1308, inclusive, of the Municipal Code of Elgin relating to Taxicabs is attached hereto as Exhibit ‘A’ and by reference is expressly made a part hereof. Said ordinance contains, in Section 28-1302 (b), the following provision:
      ‘“No such registration card shall be issued to any person who is not of good moral character; or who is a repeated violator of the Illinois Motor Vehicle laws. Operator’s registration cards shall be revoked by the Chief of Police and cancelled for repeated violations of traffic laws or ordinances.’
      “Section 28-1308 provides as follows:
      “ ‘Penalties. Any person violating any of the provisions of this ordinance shall be fined not less than Five Dollars ($5.00) nor more than Two Hundred Dollars ($200.00). Such violations shall also be cause for revocation of licenses herin (sic) required.’
      “5. No written charges have been served on plaintiff. No hearing has been held prior to the said revocation.
      “6. Defendant, Robert L. Brunton, City Manager, has refused to take action to restore the plaintiff’s Operator’s Registration Card and has informed plaintiff’s attorney by letter that the action of defendant Hansen ‘is final as far as the City of Elgin’s administration is concerned,’ a copy of which letter is attached hereto, marked Exhibit ‘B’ and expressly made a part hereof. Plaintiff has demanded the restoration of said Operator’s Registration Card but defendants Hansen and Brunton have rejected his demands and refuse to restore said Card.
      “7. Plaintiff alleges, upon information and belief, that theretofore and thereafter defendant James A. Hansen, Chief of Police of the City of Elgin, Illinois, Lt. Charles P. Miller, Officer Kenneth Luecht, Officer Richard Lund, Officer A1 Grantham, Officer Robert L. Schroeder, Officer R. W. Heneise, Robert L. Brunton, City Manager of Elgin, Illinois; City of Elgin, a municipal corporation, Elgin Y & C Cab Company, Inc., a corporation, Edward Darnell and Ward Lowry, agents and employees of said corporation, entered into a conspiracy and scheme maliciously to harass and persecute said plaintiff in the operation of his taxicab business, and to destroy the value of his said taxicab business, and wrongfully and without justification, under the guise of enforcing the statutes of the State of Illinois and the ordinances of the City of Elgin, to arrest and prosecute said plaintiff, and to abuse the judicial process in the prosecution of false and groundless charges and to obtain convictions of violations by plaintiff of said statutes and said ordinances with the intention of procuring the revocation of plaintiff’s Operator’s Registration Card and to obtain revocation of the owner’s license to ‘conduct a business for the transportation for hire in taxicabs,’ and thereby to eliminate plaintiff as a competitor of said Elgin Y & C Cab Company, Inc., a corporation, in the taxicab business in the City of Elgin, Illinois; and the defendants agreed among themselves to aid and abet each other in the carrying out of the said conspiracy and scheme. In the process of said conspiracy and scheme, defendants have committed the following acts:
      “a. On to wit, July 9, 1966, plaintiff received a phone call from persons at the Elgin State Hospital requesting a taxicab to be sent to them to transport them from said Elgin State Hospital to the Greyhound bus terminal, 222 Dundee Avenue in Elgin, which bus terminal is owned and operated by plaintiff. As plaintiff approached the Elgin State Hospital, driving one of his taxicabs, a Yellow Cab owned and operated by defendant Elgin Y & C Cab Company, Inc. drove away with said persons who had telephoned plaintiff and for whom he was .calling. After plaintiff complained of this theft of his customers, defendants, Ward Lowry and Edward Darnell, agents and employees of said Elgin Y & C Cab Company, Inc., swore out complaints against plaintiff to wit, on July 27, 1966, (1) for criminal damage to property, No. D 3474 and (2) for reckless driving, No. D 3475. Plaintiff was arrested and taken to the police station and was required to make bond to obtain his release. After several appearances by plaintiff in Court over a period of several months, said charges were dismissed on to wit, October 24, 1966 for want of prosecution with leave to reinstate.
      “b. Thereafter, on November 2, 1966 defendants Ward Lowry and Edward Darnell, agents and employees of said Elgin Y & C Cab Company, Inc., swore out new complaints, No. D 6219 and D 6207, based on the same incident as aforesaid, again charging plaintiff with reckless driving and criminal damage to property. Plaintiff was served by police officer Richard Lund at the direction of the defendants, Hansen and Miller, and was arrested and taken to the police station and again required to give bond for his appearance. Thereafter at the suggestion of the Assistant State’s Attorney, Mr. Gene Armentrout, the charges of criminal damage to property and reckless driving were dismissed and reduced to disorderly conduct and a fine of $15.00 and costs was entered and suspended. Said plea of guilty to disorderly conduct was not entered by plaintiff until he received assurances from the defendants above named that the filing of said plea would not be used as the basis of any action by the said defendants affecting any of plaintiff’s licenses or permits to engage in the taxicab business.
      “c. On to wit, February 23, 1967, plaintiff was arrested by Officer A1 Grantham and charged with driving too fast for conditions (No. 67M-4008). The said defendant Grantham, without cause or justification, testified in a distorted and inaccurate manner resulting in a finding on April 14, 1967 of guilty and a fine of $10.00 and costs, which plaintiff paid.
      “d. On to wit, April 14, 1967, at about 6:00 a. m., plaintiff was using one of his taxicabs with the flag up, and the taxicab plainly marked ‘not for hire’ and was stopped by Officer Robert L. Schroeder and charged with driving a taxicab without having a city permit, but said officer released him when he pointed out the ‘not for hire’ sign. Later, at the express directions of the defendant, Hansen, plaintiff was arrested by said Officer Robert L. Schoeder (sic) in his place of business, the said bus terminal, and ordered to lock up said bus terminal and he was taken into a patrol wagon to the police station and there given a Notice to Appear (No. 67M-8299) and a complaint charging him with driving a taxicab without a permit. Said charge was thereafter on May 22, 1967 dismissed by Judge John A. Krause for want of prosecution.
      “e. On to wit, June 6, 1967, plaintiff was driving friends of his to the Elgin State Hospital after he had closed the bus terminal, in his wife’s private car, not a taxicab. He was stopped by Officers R. W. Heneise and Kenneth Luecht, in the hospital grounds and his guests were questioned. They informed the police officers that they were not riding as fare-paying passengers, but were riding with him as guests. Thereupon, said police officers in the hearing of plaintiff and his guests, communicated to the police station by radio and then stated to plaintiff that they ‘regretted that they couldn’t make the charge stick.’ Plaintiff was served with a Notice to Appear as a result of said incident. Charges have since been filed (No. 67M-13569) and are pending and undisposed of on plaintiff’s plea of not guilty.
      “f. Plaintiff has sent to defendant Hansen applicants for driver’s licenses, who have applied for driver’s licenses under Section 28-1302 (b) as aforesaid, which applicants had applied to him for employment as taxicab drivers but defendants Hansen and Miller have repeatedly procrastinated and delayed and have told said applicants to return again and again and have attached conditions, such as that only probationary permits would be issued to said applicant(s) and that if said probationer should have one traffic violation within one year, said permit would be immediately revoked. Such conditions are not contained in the ordinance of the City of Elgin and have been imposed solely to harass and persecute plaintiff.
      “g. Various applicants for drivers’ positions with plaintiff’s cab company have tried to obtain driver’s permits but defendants Hansen and Miller have persistently interposed unwarranted and unreasonable delays and have thereby discouraged said applicants from proceeding with their applications for operator’s or driver’s licenses. Various applicants were refused permits when they informed defendants Hansen and Miller that they, sought to work for plaintiff, but said applicants have had no difficulty in obtaining licenses to drive for Elgin Y & C Cab Company, Inc., a corporation, or for other employers.

        “h. Plaintiff’s wife, Kathryn, on to-wit, April 14, 1967, applied for an operator’s or driver’s registration card. Notwithstanding that defendants have no valid legal reason for refusing to issue to her such a card they have refused to issue one, but have issued only a ‘conditional permit’ by virtue of which she is driving a cab for plaintiff on a part-time basis.
      “8. Plaintiff has an investment of over $100,000.00 in the Greyhound bus terminal and in the four taxicabs which he owns and operates. He is a native of South Elgin and has been engaged in business there for many years and has resided there continuously until June 1, 1967 and now resides with his wife and three children in the City of Elgin. He is a person of good reputation and is being oppressed, persecuted and harassed by the defendants in the furtherance of their conspiracy and scheme to destroy his taxicab business and ruin him financially.
      “9. The refusal of defendants Hansen and Brunton to restore plaintiff’s Operator’s Registration Card and to permit him to exercise the rights and privileges to which he is entitled, pursuant to Section 28-1302 (b) Municipal Code of Elgin, deprives plaintiff of his constitutional right to engage in the lawful business of driving a taxicab and deprives him thereby of his property in violation of said ordinance; and without due process' of law in violation of the provisions of Sections 2 and 13 of Article II of the Constitution of Illinois and deprives him of his property without due process of law and of the equal protection of the law in violation of the Fifth and Fourteenth Amendments to the Constitution of the United States of America.
      “10. Plaintiff has exhausted his local remedies. A justiciable dispute and an actual controversy exists between the plaintiff and the defendants Hansen and Brunton, and the City of Elgin, Illinois, a municipal corporation, concerning the plaintiff’s right to the restoration of his Operator’s Registration Card and the rights thereunder and it is therefore just and proper that the Court declare the rights of the parties.
      “WHEREFORE, PLAINTIFF PRAYS:
      “a. That the action of the defendants, Hansen, Chief of Police and Brunton, City Manager, and of the City of Elgin, a munici-

        pal corporation, in revoking and refusing to restore plaintiff’s Operator’s Registration Card may be declared by this Court to be unreasonable, arbitrary, confiscatory, discriminatory, unlawful, null and void and of no effect, and in violation of the Constitutions of the State of Illinois and of the United States of America.
      “b. That judgment be entered herein finding and declaring that plaintiff is rightfully entitled to have said defendants issue to him Operator’s Registration Card pursuant to Section 28-1302 (b) of the Municipal Code of Elgin.
      “c. That after the rights of the parties have been declared by the Court, as aforesaid, an injunction issue to restrain all of the within named defendants from harassing, persecuting and oppressing plaintiff and from engaging in a conspiracy and scheme amongst themselves, maliciously to deprive said plaintiff of his right to operate a taxicab and from interfering with him in the operation of the taxicab business which he is presently operating and from seeking by said conspiracy and scheme to destroy plaintiff’s said taxicab business and from aiding and abetting each other in the carrying out of said conspiracy and scheme.
      “d. That after the rights of the parties have been declared by the Court, as aforesaid, a trial may be had to determine damages sustained by the plaintiff herein by virtue of the acts of the defendants herein in engaging in said conspiracy and scheme and in the wrongful revocation of plaintiff’s Operator’s Registration Card, and that judgment may be entered in favor of the plaintiff and against the defendants for such damages as plaintiff shall be found entitled to.”