text:
    Elaine Sundin, Plaintiff-Appellant, v. Clyde J. Hughes, Defendant-Appellee.
    Gen. No. 52,428.
    First District.
    March 14, 1969.

      John D. Hayes and John B. Cashion, of Chicago, for appellant.
    Raymond F. Simon, Corporation Counsel of City of Chicago (Marvin E. Aspen and Stuart Sikevitz, Assistant Corporation Counsel, of counsel), for appellee.
   EBERSPACHER, J.

This is an appeal from an order granting defendant’s motion to dismiss plaintiff’s complaint, in a personal injury action.

The complaint alleged that plaintiff was a pedestrian in the exercise of ordinary care, standing upon a public sidewalk near an intersection in the City of Chicago when plaintiff was struck by the body of one Eiermann, which had been struck by a motor vehicle operated by Larry Benford and that the vehicle of Benford was being pursued by a vehicle operated by defendant Hughes. Neither Eiermann nor Benford were parties to the action, and although the status of defendant Hughes is neither alleged in the complaint nor in the motion to dismiss, the parties in this Court treat defendant Hughes as a police officer who was acting in the performance of his duties as such and using a police vehicle. Such status was obviously made known to the trial court where defendant Hughes was represented by the Corporation Counsel of the City of Chicago, who on defendant’s behalf defends this appeal.

The complaint alleged that plaintiff’s injuries were proximately caused or contributed to by one or more of the following wrongful acts of defendant Hughes:

(a) Carelessly and negligently operated his motor vehicle so that as a direct and proximate result thereof the plaintiff was injured;
(b) Carelessly and negligently operated his motor vehicle at a high and dangerous rate of speed in pursuit of another automobile, although the defendant knew, or in the exercise of ordinary care ought to have known, that such action on his part was likely to result in injury to bystanders, including the plaintiff and said Albert Eiermann;
(c) Carelessly and negligently failed to take appropriate and available steps to warn bystanders, including the plaintiff and said Albert Eiermann, of the approach of the vehicles operated by himself and said Larry Benf ord;
(d) Carelessly and negligently operated his motor vehicle in pursuit of another vehicle without sounding siren, so as to warn bystanders, including the plaintiff and said Albert Eiermann, of the approach of his vehicle and that of said Larry Ben-ford.

The complaint makes no reference to any statute or breach thereof on the part of Hughes.

The motion to dismiss asserted (1) that the complaint did not state a cause of action against defendant, (2) that in attempting to show causal connection between the activities of defendant and plaintiff’s injuries facts are set up to be remote, problematical and conjectural, and (3) that the complaint is otherwise obscure, vague, indefinite, uncertain and replete with conclusion.

Plaintiff relies upon the authority of Kita v. Young Men’s Christian Ass’n of Metropolitan Chicago, 47 Ill App2d 409, 198 NE2d 174, to support her contention that a cause of action was stated. In that case the defendant admitted that it owed a duty of reasonable care to the plaintiff, but contended the facts alleged were not sufficient to show a breach of that duty. Here defendant raises an issue regarding the sufficiency of the allegations of duty owed and proximate cause.

Defendant’s motion admitted the truth only of facts well pleaded, but not conclusions by the pleader. Kurtzon v. Kurtzon, 395 HI 73, 69 NE2d 341. Here defendant contends the complaint fails to allege a duty on the part of defendant to protect the plaintiff from the injury of which she complains, and a failure of the defendant to perform that duty owed to plaintiff.

We agree with plaintiff’s contention that defendant Hughes has no immunity from suit simply because he was acting in the performance of his duties as a police officer. To support this contention plaintiff cites Moore v. Cooke, 22 Ill App2d 48, 159 NE2d 496 (1959), in which it was specifically held that where a police officer of a city was engaged in a governmental function while pursuing a traffic violator in a police automobile, such fact nevertheless does not operate to render the police officer immune from liability for personal injury and property damage sustained by a motorist whose automobile the police officer negligently collided with. In Moore v. Cooke, supra, the undisputed facts indicated a reckless disregard for the safety of others amounting to a wilful and wanton misconduct, although it is indicated that only ordinary negligence was pled, and that in the opinion of the Court ordinary negligence would support the verdict; Moore v. Cooke, supra, was so interpreted by the same Court in Creamer v. Rude, 37 Ill App2d 148, 185 NE2d 345 (1962), a case dealing with the responsibility of a State employee while driving a State maintenance truck clearing snow and spreading cinders, when the Court said, “We have held that a policeman in pursuit of a traffic violator is liable for injury caused by ordinary negligence.” In Moore v. Cooke, supra, the Court felt that the legislative attitude had been expressed by amendments to the statutes dealing with indemnification of policemen by the City of Chicago, excluding indemnification in cases of wilful and wanton misconduct.

A police car is an “authorized emergency vehicle” within the definition of our Statute. From the complaint and theories argued in this Court, being in pursuit of a fleeing suspect (Benford), Hughes was “responding to an emergency call.” Since the complaint alleges that Hughes failed to sound a siren or give warning the statutory speed limits would apply by the provisions of section 53 of the above referred to Act, which provides in part:

“The speed limits established by this article or by regulation or ordinance made pursuant to provisions of this article do not apply to an authorized emergency vehicle in motion when responding to an emergency call and when the driver thereof sounds an audible signal by bell, siren, or exhaust whistle, as may be reasonably necessary .... However, this provision does not relieve the driver of an authorized emergency vehicle from the duty to drive with due regard for the safety of all persons using the street, nor does it protect the driver of any such vehicle from the consequences of a reckless disregard of the safety of others.”

The first clause of the last sentence imposes upon the alleged speeding officer the duty to drive with due regard for the safety of all persons using the street. The second clause of that sentence imposes an additional duty to not drive with reckless disregard of the safety of others. The first speaks in the terms of ordinary negligence and the second speaks in the terms of wilful and wanton misconduct. In the present complaint a breach of only the first duty is alleged, and we are unable to say that a breach of both duties must be alleged and proved to sustain a recovery for plaintiff, even though the duty to drive with due regard would be embraced in the duty to not drive with reckless disregard. Since the circumstances and situation in which defendant allegedly drove at high and dangerous speed in pursuit without sounding a siren are not reflected by the record, we are unable to say whether the alleged conduct of defendant was with reckless disregard of the safety of others, nor does the record present such facts as would relieve defendant from the duty to drive with due regard for the safety of all persons using the street. The degree of care or regard which is due and owing at any one time depends upon the circumstances and the relationship between the parties involved, but we do not accept defendant’s contention that under section 53 due care means only refraining from acting with a reckless disregard for the safety of others.

Defendant contends that under Good v. Chicago Park Disk, 17 Ill App2d 412, 150 NE2d 217 (Abst Opinion), defendant could not be held responsible for negligent conduct, and is only liable if proven guilty of wilful and wanton misconduct which plaintiff has failed to plead. Wilful and wanton misconduct and reckless disregard of the safety of others can be proven under an allegation of negligence or lack of due regard for the safety of others. In the Good case there was evidence that the officers were in fresh pursuit, flashing a red light on top of the car and operating a siren. This record does not disclose that defendant was in fresh pursuit of a suspected criminal and the complaint alleges a failure to give any warning including sounding a siren. In Good the jury was instructed in the language of the last sentence of section 53. The Court held the instruction to be a proper statement of the law. See IPI, Civil, 71.02, where such instruction now appears. We do not agree with defendant’s interpretation of the opinion in Good, and hold that under the statute in question plaintiff is required to allege lack of due regard for the safety of all persons using the street, or negligence and not wilful and wanton misconduct, nor reckless disregard for the safety of others. We are not here concerned with the effect of the Local Governmental and Governmental Employees Tort Immunity Act, enacted in 1965 for the reason that the occurrence antedated its enactment.

Defendant urges that speed exemption statutes similar to our section 53, supra, have been interpreted as requiring a warning only where the parties will be in conflict for the use of the same roadway or right of way unless the private citizen yields the right of way to the emergency vehicle. Defendant also points out that section 115(b) of our Act (c 95y%, 111 Rev Stats 1959) provided that the driver of an emergency vehicle shall give the warning when necessary to warn pedestrians and other drivers of the approach thereof, contending that he had no duty to warn of the approach of the pursued car. We do not construe the duty to give warning when necessary as being owed only to vehicular traffic required to yield the right of way or only to pedestrian traffic in the street proper. Even pedestrians on the sidewalk would be entitled to the benefit of a warning and opportunity to reach a position of safety under the factual situation presented by this record. We are not here presented with circumstances or a factual situation from which it could be determined that the giving of warning to plaintiff was not necessary. The purpose of the warning statute is obviously to warn anyone in the immediate vicinity that a danger was present, and alert them in order that they might take steps to preserve their own safety. As to whether the circumstances were such as to excuse defendant from such due care cannot be determined from these pleadings.

Defendant contends the complaint fails to allege facts from which it could be found that defendant’s conduct was the proximate cause of plaintiff’s injuries. Pointing out that it is not essential that the person charged with negligence should have foreseen the precise injury which resulted from his act, Neering v. Illinois Cent. Railroad, 383 Ill 366, 50 NE2d 497, describes what constitutes proximate cause, and also points out that the intervention of independent concurrent or intervening forces will not break causal connection if the intervention of such forces was itself probable or foreseeable. Citing Phillabaum v. Lake Erie & Western Railroad, 315 Ill 131, 145 NE 806, the Court pointed out that what is the proximate cause of an injury is ordinarily a question of fact to be determined by a jury from a consideration of all the evidence. An officer who finds it necessary to pursue a suspect in order to apprehend him could be chargeable with knowledge that it was probable that the suspect would act in a negligent or even illegal manner to accomplish his escape. The complaint alleges sufficient facts to raise the issue of whether defendant’s alleged conduct was the proximate cause of plaintiff’s injuries.

We therefore reverse the judgment of the Circuit Court and remand this cause for further proceedings consistent herewith.

Reversed and remanded.

MORAN and GOLDENHERSH, JJ., concur.

       Section 2(d) “An Act in relation to the regulation of traffic.” C 95%, § 99(d), 111 Rev Stats 1959.

       C 95%, § 150, 111 Rev Stats 1959.

       C 85, Ill Eev Stats 1965. Section 2-202 of that 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.”

       Citing McEwen Funeral Service v. Charlotte City Coach Lines, 248 NC 146, 102 SE2d 816 (1958), Balthaser v. Pacific Elec. Ry. Co., 187 Cal 302, 202 P 37 (1921), and Lucus v. City of Los Angeles, 10 Cal2d 476, 75 P2d 599 (1938).

       In Pagels v. City and County of San Francisco, 135 Cal App2d 152, 286 P2d 877 (1955), that Court in interpreting section 671 (Cal Stats 1935, c 27, par 223) of the California Vehicle Code, which is almost identical to our section 115(b), stated at p 879 of their opinion: “Plaintiffs in effect would have us add to this section ‘and of the pursued car.’ Had this been the intention of the Legislature it would have added those words, or, at least, would have made the presence of a siren compulsory.”


source: Caselaw Access Project

author: GOLDENHERSH, P. J.

license: Public Domain

text:
    Faber, Coe & Gregg, Inc., Plaintiff-Appellee, v. The First National Bank of Chicago, Defendant-Appellant.
    Gen. No. 52,561.
    First District.
    March 14, 1969.

      Paul, Cordell and Hansen, of Chicago (Kenneth G. Arnesen and Frederick W. Damour, of counsel), for appellant.
    Slater and Kahan, of Chicago, for appellee.
   GOLDENHERSH, P. J.

Defendant, the First National Bank of Chicago, appeals from the judgment of the Circuit Court of Cook County entered upon allowance of plaintiff’s motion for summary judgment.

In its complaint plaintiff alleges that it is a New York corporation authorized to do business in Illinois, defendant is a national banking institution, plaintiff was a depositor in defendant’s bank, defendant improperly charged plaintiff’s account in the amount of $20,350, credited it with $1,882.57 collected from a third party, and plaintiff prays judgment in the amount of $18,467.43 plus interest and costs. Defendant filed a motion to dismiss, the motion was denied, and defendant answered. Attached to the motion was an exhibit which will be later described along with the exhibits attached to defendant’s motion for summary judgment.

In its answer defendant admitted it had charged plaintiff’s account as alleged, and stated it was based upon the return to defendant of three checks drawn by Charles R. Ashmann, totalling $20,350, which were unpaid by the drawee banks because of “not sufficient funds”; it credited plaintiffs account with $1,882.57 “which was collected for plaintiff from Charles R. Ashmann” and that “this collection was authorized and accepted by plaintiff.”

As separate defenses, defendant alleged that it had been induced to cash checks for Ashmann by various representations of plaintiffs secretary-treasurer who had actual or apparent authority to act for plaintiff, who made such representations in reckless disregard of whether they were true or false, and with the intention that they be relied upon by defendant; that by institution of an action against Ashmann in the United States District Court for the Southern District of Florida based on the same facts here complained of, plaintiff had made an election of remedies which barred recovery here; that the complaint filed in the action in Florida expressly states plaintiff ratified the transaction here complained of.

In the affidavit of Donald Gregg, plaintiffs president, filed in support of its motion for summary judgment, he states that corporate resolutions on file with defendant provide that checks, drafts or other orders for the payment of money drawn in plaintiffs name against funds on deposit with defendant must be signed by any two of three designated corporate officers, and no loans could be made without presenting to defendant certified copies of corporate resolutions authorizing such borrowings; plaintiffs corporate records contain no authorization confirming any responsibility for Ashmann’s acts, and no written authorization was given defendant to charge plaintiff’s account “with the financial responsibilities incurred by Charles Ashmann.”

The discovery deposition of Mark H. Baxter, defendant’s Assistant Vice President is attached to Mr. Gregg’s affidavit as an exhibit. Mr. Baxter testified that on July 10,1963, at about 8:00 a. m. he received a telephone call from an individual who identified himself as Thomas Courtney, plaintiff’s treasurer. Mr. Courtney told him Charles Ashmann, an attorney “representing them in a number of matters” was in Chicago; Mr. Ashmann had some checks and Courtney had told him to come to defendant and “he would arrange to have them cashed for him”; the checks were “in the area of $20,000.00”; Baxter told him he would like to call the bank on which the checks were drawn and Courtney stated that was not necessary, he had arranged similar accommodations for Ashmann before, and did not want to embarrass him. Shortly thereafter Ashmann came in and cashed the three checks in question. The checks were put through as cash items and returned “not sufficient funds.” There were several telephone conversations with Courtney in one of which “Courtney said they would stand behind the checks.” The witness identified several letters written by defendant, and a letter in which counsel for plaintiff advised defendant that Courtney’s action was “a mere introduction” of Ashmann to defendant.

Defendant filed a motion for summary judgment supported by the affidavit of Mr. Baxter, which, with some additions contains substantially the same statements as his deposition. Attached as exhibits are a certification of plaintiff’s officers, copies of the resolutions described in Mr. Gregg’s affidavit, and the complaint filed by plaintiff in the United States District Court in Florida.

Attached to the motion to dismiss above mentioned, is the final judgment order entered in plaintiff’s action in the United States District Court.

The complaint filed in the United States District Court of Florida is in two counts. In Count I plaintiff alleged that Ashmann delivered to it five checks drawn by him on the Boulevard National Bank of Miami and payable to plaintiff and Francis J. Gilbride, Jr., its attorney, in payment of an indebtedness due plaintiff, that upon presentment the checks were dishonored and the indebtedness remains unpaid. In Count II, plaintiff alleged, inter alia, that Ashmann had falsely and fraudulently represented to defendant that he represented plaintiff, and that plaintiff was the guarantor of any checks negotiated by plaintiff on defendant, and falsely and fraudulently induced plaintiff to ratify his actions in that regard; that defendant has called on and held plaintiff liable for checks drawn on defendant in the amount of $20,350. In its final order the District Court entered judgment in favor of plaintiff on Count I. As to Count II the order recited:

“Ordered Judged and Decreed that Count II of the plaintiff’s complaint be and the same is hereby dismissed without prejudice.”

As grounds for reversal defendant contends that plaintiff, in the action instituted in Florida has made an election of remedies, Ashmann had apparent authority to act for plaintiff, plaintiff has ratified the transaction, the misrepresentations made to defendant by plaintiff’s secretary-treasurer Courtney were material, Courtney knew they were false, defendant had no duty to conduct an independent investigation, and the transaction “amounts to fraud or the tort of misrepresentation in a business transaction.”

The pleadings as drawn do not present the issues of whether defendant might recover from plaintiff for a tortious act, or whether by clothing its alleged agent with real or apparent authority it induced defendant to negotiate Ashmann’s checks. The sole issue presented is whether defendant correctly exercised its alleged right of setoff with respect to the funds on deposit. The right of a commercial bank to set off against funds on deposit is not coextensive with its right to recover sums due it. The extent of our review is to determine whether the pleadings, discovery depositions, and exhibits, present a genuine issue of fact material to the question presented. Halloran v. Belt Ry. Co., 25 Ill App 2d 114, 166 NE2d 98.

Illinois follows the rule that a bank cannot apply the deposits of a debtor to an unmatufed indebtedness in the absence of express authority so to do. Gillette v. Williamsville State Bank, 310 Ill App 395, 34 NE 2d 552; Elzy v. Morrison, 180 Ill App 711. A matured indebtedness to give rise to a right of setoff must be certain, already reduced to precise figures or capable of being liquidated by calculation without the intervention of a court or jury to estimate them, Thornton v. National City Bank of New York, 45 F2d 127; 1 Morse on Banks & Banking (6th Edition, pp 779-80); Michie on Banks and Banking, Permanent Edition, Volume 5A, p 299. Defendant’s claim against plaintiff, as delineated by its answer, does not fall within the definition of a matured indebtedness.

Relying upon Restatement of the Law of Agency Second, § 97 (p 250) defendant contends that plaintiff ratified Ashmann’s acts. In further support of its argument defendant reviews plaintiff’s efforts to recover from Ashmann and its delay in filing this action. The effect of plaintiff’s instituting suit in Florida will be considered later, and at this point, we shall dicuss the alleged ratification arising from other actions of the plaintiff.

The relationship between plaintiff and defendant as depositor and bank was contractual, and plaintiff’s funds on deposit could be paid out only upon the signatures of two of the officers designated in its corporate resolutions on file with defendant. The formal requirements of ratification are stated in 3 American Jurisprudence Second Edition at page 551 as follows:

“Since it is the equivalent of prior authority, the ratification of an unauthorized act must be of the particular mode or form necessary to confer authority to perform it in the first place. A ratification cannot stand on higher ground than an original authorization, and where, therefore, the adoption of any particular form or mode is necessary to confer the authority in the first instance, there can be no valid ratification except in the same manner.”

The record leaves no question that plaintiff did not, by corporate resolution, ratify Ashmann’s acts. Neither the allegation of ratification in the complaint filed in the District Court in Florida nor any other action of plaintiff reflected by the record is a ratification of Ashmann’s transaction sufficient to entitle defendant to setoff against plaintiff’s funds.

There remains for consideration the question of whether plaintiff, in seeking to recover from Ashmann in Count II of its Florida complaint, made an election of remedies which bars this action. It is plaintiff’s position that the law of Florida is applicable, while defendant contends that the issue must be determined under the law of Illinois.

We shall not attempt to discuss, distinguish or reconcile the cases in Illinois. In 6 ALR2d, in discussing the holdings of the various jurisdictions as to whether commencement of a suit, not prosecuted to judgment, is of itself a conclusive election precluding a litigant from thereafter pursuing an inconsistent remedy, the annotator, at page 70 states:

“In Illinois no case stating a general rule on the subject of this annotation has been found; and none can safely be deduced from the cases involving particular remedies, since, if tested by a general rule, some of these cases would support an inference that the commencement of a suit is, of itself, a conclusive election, and other cases would support an opposite inference.”

From our review of the authorities we believe the Illinois cases to be in agreement with the United States Court of Appeals for the Seventh Circuit, who said in National Lock Co. v. Hogland, 101 F2d 576, at page 587, and in Federal Savings & Loan Ins. Co. v. American Nat. Bank & Trust Co. of Chicago, 392 F2d 906 at page 912:

“The formal doctrine of election of remedies by judicial decision has been confined gradually to its true remedial purpose as a doctrine of substance; and as stated by an eminent authority on trusts and trustees, should be confined to cases ‘where (1) double compensation of the plaintiff is threatened or (2) the defendant has actually been misled by the plaintiff’s conduct or (3) res adjudicata can be applied.’ Bogert, Trusts and Trustees, 1935 Vol IV, § 946.”

The record reveals no threat of double recovery by plaintiff, no evidence that defendant was in any manner misled by plaintiff’s conduct in filing Count II in its Florida suit, and no basis for application of res judicata. We hold, therefore, that under Illinois law there was no election of remedies which would bar plaintiff’s recovery in this action.

The Florida rule appears to be that the mere filing of an action which is dismissed before judgment does not effect an election of remedies, and to be conclusive the rights of the parties must have been materially affected to the advantage of one and the disadvantage of the other. Williams v. Robineau (Supreme Court of Florida), 168 So 644; Williams v. Duggan (Supreme Court of Florida), 153 So2d 726. Under Florida law there was here no election of remedies which would bar this action.

Because of the conclusions reached with respect to the law of Illinois and Florida, it is not necessary to decide which law governs in this instance.

What we have said does not indicate any opinion with respect to defendant’s right to recover from plaintiff in tort, or upon any other theory. We hold only that the record shows no genuine issue of fact material to the question presented, i. e. did defendant improperly set off its claim against plaintiff’s funds on deposit?

For the reasons set forth the judgment of the Circuit Court of Cook County is affirmed.

Judgment affirmed.

MORAN and EBERSPACHER, JJ., concur.


author: JUSTICE CRAVEN.

text:
    Betty Badar, Plaintiff-Appellant, v. W. H. Lyman Construction Company, a Corporation, and Illinois Bell Telephone Company, a Corporation, Defendants-Appellees.
    Gen. No. 52,635.
    First District.
    March 14, 1969.
    Alan E. Morrill and Robert A. Sprecher, of Chicago (Morrill, Koutsky, Klomann and Chuhak, of counsel), for appellant; Francis B. Libbe, John M. O’Con-nor, Jr., of Kirkland, Ellis, Hodson, Chaffetz & Masters, of Chicago, for appellees.
   Opinion by

JUSTICE CRAVEN.

Not to be published in full.


text:
    Michael Levitt, Harold Mandell and Henry Rush, d/b/a Broadway Insurance Agency, Plaintiffs-Appellants, v. Lewis T. Taylor, d/b/a Taylor and Company, the United States Life Insurance Company in the City of New York, a Corporation, and Aetna Life and Casualty Insurance Company, a Corporation, Defendants-Appellees.
    Gen. No. 52,867.
    First District.
    March 14, 1969.
    Sherwin Willens, Hoellen & Willens, of Chicago, for appellants; Hinshaw, Culbertson, Moelmann & Hoban, of Chicago (D. Kendall Griffith and Roy C. Palmer, of counsel), and Lord, Bissell & Brook, of Chicago (Thomas L. Stevens and Paul W. Engstrom, of counsel), for appellees.
   Opinion by

JUSTICE CRAVEN.

Not to be published in full.


author: MR. JUSTICE SEIDENFELD

text:
    In the Matter of the Dependency of Terry John Bartha, a Minor. Phyllis Bartha, Respondent-Appellant, v. William V. Hopf, State’s Attorney of DuPage County, Illinois, Petitioner-Appellee.
    Gen. No. 68-142.
    Second District.
    March 17, 1969.
    Seymour Velk and Robert K. Downs, of Chicago (Ellis B. Rosenzweig and Sidney Z. Karasik, of counsel), for appellant.
    William V. Hopf, State’s Attorney of DuPage County, of Wheaton, and Helen C. Kinney, Assistant State’s Attorney, for appellee.
   MR. JUSTICE SEIDENFELD

delivered the opinion of the court.

This appeal brings before us for the second time, the action commenced as a dependency proceeding brought by the State’s Attorney of DuPage County with respect to Terry John Bartha. An order was entered declaring the child dependent and transferring custody from the child’s natural mother to the child’s maternal aunt and her husband. On appeal from that order, this Court reversed and remanded the cause for further proceedings consistent with the Court’s opinion as reported in 87 Ill App2d 263, 230 NE2d 886.

On remand, the trial judge first refused a motion for a change of venue, and then without hearing any additional evidence, entered an order making certain findings of fact but otherwise followed the original order.

This appeal by Phyllis Bartha, the mother of the minor and respondent below, urges that the trial judge’s order is against the manifest weight of the evidence and unsupported by the testimony, that the trial court failed to comply with the mandate of this Court by conducting new hearings, and that the trial court erred in not granting a change of venue.

In reversing and remanding the cause from the previous appeal, we noted that in the order adjudicating the dependency of the minor there was no finding that the mother was unfit or unable or unwilling to care for, protect, train, educate or discipline the child, or that it was in the interests of the child to be taken from the custody of the mother. We further noted that in the absence of such findings that we should not be called upon to review the entire record and make the initial findings of fact, and could not consider whether or not the adjudication of dependency was against the manifest weight of the evidence in the absence of findings which we considered mandatory and jurisdictional. See In re Dependency of Bartha, 87 Ill App2d 263 (supra), pages 267, 268, 230 NE2d 886.

The respondent argues that since the testimony in the original dependency cause concerned events in 1964, 1965 and 1966, they were not entirely timely as to the conditions at the time of the remand, and the cause should have been considered as a new matter on remand. Respondent urges that while the mandate issued in the previous opinion contained no specific directions to the trial court, that a new hearing was in the spirit of the mandate. The respondent calls attention to the comment in the prior opinion:

“There was either conflicting or incomplete evidence on appellant’s health, on the child’s health, on the appellant’s alleged promiscuity, on the appellant’s history of financially supporting the child, on the frequency of appellant’s visits to the child, and so forth.” In re Dependency of Bartha, supra, at page 268.

The trial judge construed this Court’s mandate as requiring that he, personally, make the findings of fact on the whole record, and, therefore, denied the motion for the change of venue. We do not consider that this was error. While a decree respecting the custody of the child is exceptional in its character and is always regarded as temporary (see People ex rel. Bukovich v. Bukovich, 39 Ill2d 76, 81, 233 NE2d 382 (1968)), the trial judge, after refusing the motion for a change of venue, offered the respondent the opportunity to present additional, proof. Respondent took the position that it was the duty of the State to go forward, and while the State offered to present testimony as to the current status of the child and his progress in school, the Court indicated he did not wish to hear the offered testimony as he felt it had no bearing on the case. While we do not agree with that conclusion as a matter of law, we cannot con-elude that the proceedings at this stage were “new,” requiring the motion for change of venue to he granted.

We consider then whether or not the findings of the trial judge were against the manifest weight of the evidence.

The order now appealed from made specific findings of fact. Considering the whole record, we conclude that the specific findings of the trial judge, material to the question of dependency, are not properly supported by the evidence.

The finding that the child was “very insecure as demonstrated by his poor sleeping habits and constant bedwetting,” is not based upon any evidence we have been able to find in the record. Petitioner suggests that it may have been found in a report of a Dr. Sanchez who examined the child and to whose examination the Court referred after the close of the evidence, but there is no inclusion of the report in the record, nor any evidence as to what Dr. Sanchez found. The Court could not properly consider matters heard out of Court and not preserved for review. Cohn v. Scott, 231 Ill 556, 559, 83 NE 191 (1907); In re Dependency of Rosmis, 26 Ill App2d 226, 231, 167 NE2d 826 (1960). In any event, there is no evidence in the record as to this condition found by the Court or as to who was responsible for the condition or who was in the best position to rectify the condition.

In the order, the trial judge found Phyllis Bartha guilty of promiscuity and that this affected the care and treatment she afforded Terry. The Court also found that the mother had demonstrated her inability to be entrusted with the care and maintenance of the child by failure to provide good moral example and training and by her maintenance of a residence with a man not her husband. The record in support of petitioner’s burden of proof on this issue was the testimony of Betty Fessler who was seeking custody, and who claimed that on only one occasion when she came to Phyllis’s apartment in 1964 she saw a man in his “underwear.” She described the apartment as being “in a mess” and Terry in dirty clothes. Mrs. Fessler also testified that this man was with Phyllis Bartha at a “pool party” at her home in July of 1964. Terry testified that “Carl” was at the apartment at times, that he just visited, but sometimes stayed overnight.

Testimony offered by respondents included a Cook County Public Aid caseworker who made unexpected visits to Mrs. Bartha’s apartment and testified that she always found the place to be neat and immaculate. The incident described by Betty Fessler was denied by Phyllis Bartha. Rodney Bartha, the teen-age son of Phyllis, also denied that anyone had ever lived with him and his mother. The mother of both Phyllis Bartha and Mrs. Fessler, Helen Mann, testified that although she had not been to the present apartment, she previously had observed Phyllis taking care of both Rodney and Terry, both in her own home and in Phyllis’s home, and that both Rodney and Terry were clothed, fed, disciplined properly, and taught the difference between right and wrong. She said that Phyllis very much exhibited the normal concern of a proper parent toward the children and conducted herself as a moral and Christian person, attending church regularly. She testified that the past living quarters of Phyllis were always clean and neat and “very nice.”

A sister of Phyllis and Mrs. Fessler, Mrs. Mary Roberts, testified substantially to the same effect as the mother, and concluded, as did the mother, that Phyllis was a fit and proper parent for Terry, and that she would entrust her own children to Mrs. Bartha’s care. Her husband, George Roberts, corroborated the mother’s testimony also.

On this state of the record we hold that the trial judge’s findings of promiscuity and its effect on the child are against the manifest weight of the evidence.

In another paragraph of the order, the trial court found that Mrs. Bartha gave Betty Fessler little, if any, support towards the maintenance of Terry. While Betty Fessler in her direct testimony stated that she did not receive any payments from Mrs. Bartha, she admitted on cross-examination that she did receive certain money orders. Phyllis Bartha testified that she paid $25 per week regularly until she became ill, as evidenced by check stubs. Her mother, Helen Mann, confirmed the payments. There was testimony that Phyllis had offered to move in with the Pesslers and help around the house, and that she did on occasion work at the Pessler home on weekends to enable Mrs. Pessler to go out.

We hold that the finding of failure to support is against the manifest weight of the evidence.

In the final finding paragraph of the order, the Court made a series of findings: That Phyllis Bartha had abandoned Terry over a period of years; had failed to provide good moral example and training; maintained a residence with a man not her husband; failed to provide for the child’s needs by failing to provide a proper diet and adequate clothing, and for these reasons had demonstrated her inability to be entrusted with the care and maintenance of the child. The finding of abandonment is against the manifest weight of the evidence in the record. This finding is based solely on the uncorroborated testimony of Betty Fessler who claimed Phyllis never visited Terry, which Phyllis contradicted. It is manifest from the record that Mrs. Bartha, although she relied substantially on the help of others, particularly the Pesslers, to care for Terry over a period of time, did not “abandon” Terry in any legal sense. Abandonment requires “conduct which evinces a settled purpose to fore-go all parental duties and relinquish all parental claims to a child.” Huber v. Huber, 26 Ill App2d 207, 211, 167 NE2d 431 (1960); In re Petition of Miller, 15 Ill App 2d 333, 338, 146 NE2d 226 (1957). We view the evidence as displaying Terry Bartha’s life history as one of unfortunate continued conflict over his possession between parties whom we believe essentially have the well being of Terry in mind, but the history does not add up to legal abandonment. The remaining findings in this paragraph have been treated elsewhere, but the record does not support the findings singly or in total.

Petitioner argues that parental unfitness is not the only criteria for depriving the mother of custody, if the order is in the best interests of the child, citing Giacopelli v. Florence Crittenton Home, 16 Ill2d 556, 158 NE2d 613 (1959). The facts in Giacopelli are far different from the facts shown on this record. We are painfully aware, that partly because of Mrs. Bartha’s unfortunate circumstances in Terry’s earliest years and partly because of the tortuous path this litigation has taken since the filing of the petition in 1965, that Terry has spent a large portion of his nine years with his aunt and her husband. And it is apparent that the child was not aware at the time of the hearing that Mrs. Bartha was his natural mother. It is also apparent that Mrs. Bartha is a poor woman, and that the Fesslers can provide more prosperous surroundings and physical advantages to Terry. But, while we may feel a sense of failure in the court system for not providing a more expeditious method of settling the custody of children, we cannot deny the natural mother her right to have custody of her child, on a record which does not support the trial court’s finding of parental unfitness and dependency.

We, therefore, reverse.

Reversed.

MORAN, P. J. and DAVIS, J., concur.

       “1. That TERRY JOHN BARTHA is a minor under the age of eighteen years, to wit: being nine years of age, having been bom on October 30, 1959; 2. That at the time of the filing of the petition and the amended petition in this cause and for a considerable period of time previous thereto that TERRY JOHN BARTHA had been and was being cared for by ELMER FESSLER and BETTY FESSLER, his wife; 3. That TERRY JOHN BARTHA was and is the son of the respondent, PHYLLIS BARTHA, who testified that he was born to her out of wedlock; 4. That from the evidence adduced the Court further finds that the child, TERRY JOHN BARTHA, was very insecure as demonstrated by his poor sleeping habits and constant bedwetting; 5. That from the evidence adduced the Court further finds that the alleged promiscuity of PHYLLIS BARTHA had a bearing on the care and treatment which she afforded the child during the time that said child was in her custody; 6. That from the evidence adduced the Court further finds that during the period that TERRY JOHN BARTHA was not in the custody of PHYLLIS BARTHA that PHYLLIS BARTHA gave very little, if any support, toward the maintenance of said TERRY JOHN BARTHA; 7. That from the evidence adduced the Court further finds that PHYLLIS BARTHA by her previous abandonment of TERRY JOHN BARTHA over a period of years; by her failure to provide a good moral example and training; by her maintenance of a residence with a man not her husband; by her failure to provide for said child’s needs, as exemplified by her failure to provide a proper diet and adequate clothing, has demonstrated her inability to be entrusted with the care and maintenance of said child; 8. That from the evidence adduced the Court further finds that an appraisal of the factual situation discloses that each fact, if viewed alone, perhaps would not sustain a finding of dependency, but when all of these facts are viewed collectively the Court finds that TERRY JOHN BARTHA is a dependent child and should be placed in the care and custody of ELMER FESSLER and BETTY FESSLER, his wife.”


author: JUSTICE SEIDENFELD.

text:
    J. V. Mileris, Plaintiff-Appellee, v. Alfred G. Miller, Delores M. Miller, Peters Van and Storage Company, Inc., an Illinois Corporation, and F. P. Peters, Defendants-Appellants, and Alfred G. Miller and Delores M. Miller, Counter-Plaintiffs, v. J. V. Mileris, Peters Van and Storage Company, Inc., an Illinois Corporation, F. P. Peters and Elmer E. Peterson, Counter-Defendants, and Alfred G. Miller and Delores M. Miller, Third Party Plaintiffs, v. Elmer E. Peterson, Third Party Defendant.
    Gen. No. 68-148.
    Second District.
    March 17, 1969.
    Carbary, Carbary & Chapski, of Elgin, for appellants; Dreyer, Foote & Streit, and Goldsmith, Dyer, Thelin & Schiller, of Aurora, and Anthony F. Donat, of Batavia, for appellees.
   Opinion by

JUSTICE SEIDENFELD.

Not to be published in full.


author: MR. JUSTICE MURPHY

text:
    People of the State of Illinois, ex rel. Martin J. Dever, Jr., David J. Augle, and William J. Danaher, Plaintiffs-Appellees, v. Orlando W. Wilson, Superintendent of Police of the City of Chicago, William E. Cahill, Reginald Du Bois, and Quintin J. Goodwin, Members of and Constituting the Civil Service Commission of the City of Chicago, Otto H. Loser, Acting Comptroller of the City of Chicago, and William J. Milota, Treasurer of the City of Chicago, Defendants-Appellants.
    Gen. No. 52,586.
    First District, First Division.
    March 17, 1969.

      Raymond F. Simon, Corporation Counsel of City of Chicago (Marvin E. Aspen and Joseph N. Lascaro, Assistant Corporation Counsel, of counsel), for appellants.
    Michael F. Ryan, of Chicago, for appellees.
   MR. JUSTICE MURPHY

delivered the opinion of the court.

This is a mandamus proceeding, in which the trial court ordered the issuance of a writ of mandamus directed to defendants, commanding them to reinstate and reassign relators to duty as probationary patrolmen in the Chicago Police Department. Defendants appeal.

The determinative issue is whether the plaintiffs were precluded from judicial relief because of their failure to proceed under the Administrative Review Act. Plaintiffs have not appeared in this court.

The complaint for mandamus, filed on March 18, 1965, shows that plaintiffs were appointed on June 29, 1964, to the position of patrolmen and assigned to the Police Training School of the Chicago Police Department for a thirteen-week training course. On September 18, 1964, plaintiffs were suspended from duty by order of Orlando W. Wilson, Superintendent of Police. Later, and during their six-month probationary period, and with the approval of the Civil Service Commission, plaintiffs were discharged from the Chicago Police Department by Orlando W. Wilson, as Superintendent of Police. The complaint alleges that the reasons assigned for their discharges during their probationary periods were false, and that the discharges were accordingly illegal and void.

Initially, defendants moved to strike the complaint and dismiss the suit. The grounds for the motion included the allegation that plaintiffs’ proper remedy “was governed exclusively and entirely by said Administrative Review Act and that any case filed by plaintiffs for their alleged grievances, by the express language of said Act, had to be brought thereunder and brought within 35 days from the date of the Civil Service Commission’s consent to his discharge to wit: Martin J. Dever, Jr., September 30, 1964, and David J. Augle and William J. Danaher, October 14,1964, which 35-day period ended for Martin J. Dover on November 4, 1964, and for David J. Augle and William J. Danaher on November 18, 1964. Plaintiffs filed their complaints in mandamus on March 22, 1965.”

The trial court denied defendants’ motion to strike and dismiss and defendants answered. After a hearing, the court entered a judgment order finding that plaintiffs’ discharges were illegal and that plaintiffs were entitled to reinstatement to their positions as patrolmen and ordered that the writ of mandamus be issued as aforesaid.

On appeal, defendants assert that the Municipal Code (111 Rev Stats 1967, c 24, ¶ 10-1-45) provides that the provisions of the Administrative Review Act (111 Rev Stats, c 110, ¶¶ 264-279) shall apply to and govern all proceedings for judicial review of final administrative decisions of a Civil Service Commission or of a Police Board of a city of more than 500,000 population.

Defendants further assert that the record shows that the Superintendent of Police properly discharged the plaintiffs pursuant to the authority vested in him by statute, and as this was a final decision, subject to the provisions of the Administrative Review Act, the trial court lacked jurisdiction to entertain the instant case because of plaintiffs’ failure to proceed under the Administrative Review Act.

The controlling guidelines to be used here are set forth in People ex rel. Chicago & N. W. Ry. Co. v. Hulman, 31 Ill2d 166, 201 NE2d 103 (1964), where our Supreme Court said (p 169):

“As was noted in Moline Tool Co. v. Department of Revenue, 410 Ill 35, 37, the Administrative Review Act . . . was designed to provide a single uniform method by which administrative decisions of State governmental agencies could be reviewed, and, since our decision in that case, it has become firmly established that where an act creating or conferring power on an administrative agency expressly designates that judicial review will be accomplished under the Administrative Review Act, the employment of pre-existing methods of securing judicial review is prohibited. . . . Stated differently, it is the holding of Moline Tool and the decisions adhering to it that the Administrative Review Act exclusively applies to and governs every action to review judicially a final decision of an administrative agency where the act creating or conferring power on the agency provides such manner of review by express reference.”

See, also, Davis v. Wilson, 96 Ill App2d 225, 228-9, 238 NE2d 237 (1968).

We conclude that the judicial review of plaintiffs’ discharges by a mandamus proceeding was improper. Therefore, the judgment order for writ of mandamus is reversed and plaintiffs’ complaint is dismissed. Because of these conclusions, defendants’ motion taken with the case is not considered.

Reversed and complaint dismissed.

ADESKO, P. J. and BURMAN, J., concur.


author: MR. PRESIDING JUSTICE ADESKO

text:
    Lawrence D. Swidler, Plaintiff-Appellant, v. Thomas H. Litvin, and Chicago Title & Trust Company, as Escrowee Under Escrow Agreement Dated June 13, 1967, and Known as Escrow No. 303906, Defendants-Appellees.
    Gen. No. 52,805.
    First District, First Division.
    March 17, 1969.
    Rehearing denied May 9, 1969.
    Swidler, Patt & Swidler, of Chicago', for appellant.

      Arvey, Hodes & Mantyriband, of Chicago (Morrie Much and Allen H. Dropkin, of counsel), for appellee.
   MR. PRESIDING JUSTICE ADESKO

delivered the opinion of the court.

This is an action by the plaintiff, a prospective purchaser of real estate, to recover earnest money deposited with an escrowee, pursuant to the terms of a written Escrow Agreement, on the ground that the contract of sale was oral and therefore unenforceable under the Statute of Frauds. The trial court granted defendant-seller’s motion for Judgment on the Pleadings, and plaintiff has appealed to this court. The sole issue we are confronted with is whether the trial court properly granted such motion.

On June 11, 1967, plaintiff, as purchaser, and Thomas H. Litvin, defendant, as seller, negotiated an oral agreement for the purchase and sale of a single-family residence and certain personal property within said residence for an aggregate price of $65,000. Two days later, on June 13, 1967, the parties entered into a written Escrow Agreement with the Chicago Title and Trust Company, as escrowee, to consummate the transaction. The Escrow Agreement was signed by the plaintiff and, in the presence of the defendant, by the attorneys for defendant on his behalf. Plaintiff deposited $6,500 in the escrow in accordance with the terms of the Escrow Agreement; the balance of $58,500 was to be deposited by July 20, 1967, under a separate mortgage escrow.

The Escrow Agreement names the parties, describes the property to be conveyed, states the total amount of consideration and how and when it is to be paid, and in addition to other matters, expressly states that if the buyer (plaintiff) fails to make payments as required, then the escrowee, upon seller’s demand, shall give buyer five days written notice to cure any default, and failing such cure, the escrowee was instructed to pay the earnest money deposit to seller. The Escrow Agreement does not recite that it contains the terms of the oral agreement concerning the real estate purchase, nor does the Escrow Agreement state that the entire purchase was contingent upon the buyer obtaining satisfactory financing, and in the event of failure to secure financing that all monies would be refunded.

The plaintiff states that on July 1,1967, he determined that the mortgage financing to consummate the purchase was not available to him and he thereupon notified the seller that he (plaintiff) could not obtain the required financing, and therefore had elected to rescind the transaction. The defendant-seller denies that the proposed purchase of property was contingent upon the plaintiff obtaining satisfactory financing and that notice of the election to rescind was given to him.

Plaintiff failed to deposit the balance due into escrow by July 20, 1967, and as a result, demand was made by the seller to the escrowee that same day, to serve notice upon the buyer. The escrowee served the requisite five-day notice upon the buyer on July 21, 1967, but the buyer failed to make any further deposits, and in turn insisted that financing was not made available to him and that he (plaintiff) elected to rescind the oral agreement and requested that his deposit be returned to him. Upon refusal of the defendant to return plaintiff’s deposit, suit was instituted on July 19, 1967, one day prior to the specified date set forth in the Escrow Agreement for deposit of the balance due, for rescission of the oral agreement by virtue of the Statute of Frauds, and for return of plaintiff’s deposit. Defendant, Thomas H. Litvin, filed an answer to the complaint, wherein he stated that the oral agreement between the parties was reduced to writing in the form of an Escrow Agreement, signed by him, through his attorneys, and the plaintiff; that the Escrow Agreement contains all the terms of the oral agreement; that no contingency for lack of financing was agreed upon; and that plaintiff is in default pursuant to the terms of the Escrow Agreement.

Subsequently, defendant, Litvin, filed a motion for judgment on the pleadings, supported by a written memorandum whereupon plaintiff also filed a motion for the identical relief and supported his position with a written memorandum. The court, after considering the pleadings, memoranda and arguments of counsel, ordered that the motion of the defendant, Thomas H. Litvin, for judgment on the pleadings be granted and that the motion of the plaintiff for judgment on the pleadings be denied, that judgment be entered in favor of defendants and against plaintiff and that plaintiff’s cause of action is hereby dismissed for want of equity.

Section 45(5) of the Civil Practice Act (111 Rev Stats 1967, c 110, § 45(5)), provides that any party may seasonably move for judgment on the pleadings. After the motion is made, the court must examine the pleadings to determine if a factual issue exists or if the matter can be resolved solely as a matter of law. Bleck v. Cosgrove, 32 Ill App2d 267, 177 NE2d 647 (1962); Tompkins v. France, 21 Ill App2d 227, 157 NE2d 799 (1959). A motion for judgment on the pleadings raises the question of whether there is any issue of material facts presented by the pleadings and, if there is no such issue, the question as to which party is entitled to judgment. In the case at bar, there is no dispute that the buyer and seller entered into an oral agreement for the sale of real estate, but there is an important question as to the terms of that oral agreement, and whether or not those terms were incorporated into the Escrow Agreement.

It is well settled that the court may consider only those allegations contained in the motion for judgment on the pleadings which are admitted by the other party. A. A. Erickson Bros. v. Jenkins, 41 Ill App2d 180, 190 NE2d 383 (1963); Dryz v. Bol, 19 Ill App2d 406, 153 NE2d 859 (1958). But where the pleadings put in issue one or more material facts, evidence must then be taken to resolve such issue or issues of fact, and a judgment may not be entered on the pleadings. Thillens, Inc. v. Hodge, 2 Ill2d 45, 116 NE2d 886 (1954); Minor v. Universal C.I.T. Credit Corp., 27 Ill App2d 330, 170 NE2d 5 (1960). In the instant case, all terms and covenants of the oral agreement were not determined, and each party alleges a slightly different version as to what terms were agreed upon. It is a fair inference from the plaintiff’s pleadings that he anticipated obtaining a mortgage to consummate the transaction, and the Escrow Agreement recites this fact. Yet, whether all the terms agreed upon were actually incorporated in the Escrow Agreement is questionable since the standard form Escrow Agreement utilized makes no mention that the terms of the contract between the parties has been incorporated into it. The Escrow Agreement sets forth the procedure to be followed in consummating the transaction and recites:

“The parties have heretofore entered into an agreement for the sale of the premises described herein.”

Under the facts of this case, a judgment on the pleadings was not appropriate in any event. Since the defendant’s answer adequately raises an issue of fact as to what was agreed to by the parties in their oral agreement, the judgment of the trial court is reversed and the cause remanded with directions to overrule defendant’s motion for judgment on the pleadings and for further proceedings herein on the merits of the issues thus raised.

Judgment reversed with directions.

MURPHY and SULLIVAN, JJ., concur.


text:
    People of the State of Illinois, Plaintiff-Appellant, v. Joe Golds, Defendant-Appellee.
    Gen. No. 52,961.
    First District, First Division.
    March 17, 1969.

      John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane, James B. Zagel, and Lewis Wenzell, Assistant State’s Attorneys, of counsel), for appellant.
    No brief for appellee.
   MR. JUSTICE MURPHY

delivered the opinion of the court.

This is an appeal by the State from an order which allowed defendant’s motion to quash a search warrant and to suppress the evidence seized pursuant to the warrant. Prior to the issuance of the warrant and in the presence of the issuing judge, the complaining police officer amended the “Complaint for Search Warrant” in its description of the place to be searched. The question is whether the complaint, after its amendment, should have included the source of the information on which the amendment was based. Defendant has filed no brief.

The record shows that police officer Robert J. Smith, as the complainant, appeared before Judge John J. Moran of the Circuit Court of Cook County and presented a complaint for the issuance of a search warrant. The judge found that the description of the place to be searched was insufficient and unsatisfactory. Later the complaint was amended by the police officer so that “3rd floor right apartment” was changed to read “3rd floor north apartment.” Judge Moran then initialed the change and issued the search warrant.

The complaint, as amended, on which the search warrant was issued, was as follows:

“Complainant says that he has probable cause to believe, based upon the following facts, that the above listed things to be seized are now located upon the (person and) premises set forth above: I, a Police Officer for the City of Chicago, have received information from a reliable informant who I have known for the past 15 months, and who on several previous occasions has furnished me with information that has proven to be true, exact and accurate. Acting on information received from this informant, resulted in 5 arrests, 2 convictions and 3 pending in Criminal Court. On 20 June 1967 this informant furnished me with telephone number 338-2809 and told me this is the number he calls when he wants to make bets on horse races. I checked this number through the Security Section of the telephone company and found it to be listed to Alex Brown, 3rd floor north — [JM] apartment at 6574 North Lakewood, Chicago, Cook, Illinois. On 20 June 1967 at approximately 4:40 p. m. I personally dialed this number, 338-2809 and handed the phone to the informant. The informant identified himself and then made a wager on a horse race, the informant then said, ‘that’s it’ and hung up the telephone. The informant then told this complainant that when he was handed the phone it rang once and was answered by an unknown person who accepted the bet. After the bet was given, the party accepting the bet asked the informant if he had anything else to which the informant replied ‘that’s it’ and this terminated the conversation.
Robert J. Smith Complainant
“Subscribed and sworn to before me on 21 June 1967
John J. Moran Judge.” (Emphasis supplied.)

Defendant’s motion to suppress was heard and ruled on by another judge. Officer Smith testified at length about the amendment to the description of the premises to be searched. His testimony included: “At the time I originally presented the affidavit the only information I had was that the apartment was the 3rd floor right apartment. Before Judge Moran signed the warrant I contacted one of the squads of our unit, who went out and looked at the building in question and passed the information they gained on to me. On the basis of that information, I changed the warrant and affidavit from ‘right’ to ‘north.’ ” He further said: “The affidavit itself does not contain the information that the premises had been examined, but after I imparted this information to the magistrate he issued the warrant.”

In allowing the motion to quash and to suppress, the judge remarked: “I would note first that the warrant states that the telephone number listed as — to the third floor north, and we know from the testimony that this is not so. The telephone listing indicates third floor right. And this information in regard to north could only have been obtained by information outside of the affidavit. The information as to the apartment was from an unknown officer and investigation that was not mentioned within the four corners of the affidavit. In regard to probable cause and description of premises apart from the warrant, if there was some testimony in regard to the name of Alex Brown who this telephone number was to be listed for, as being on the door bell indicating third floor north or something to that effect, there might have been probable cause for the search warrant. But there was not such testimony. And they undoubtedly did not have this information or there would not have been a search warrant for both apartments. For these reasons the motion to quash and motion to suppress will be allowed.”

As previously noted, the issue here is whether the complaint for the search warrant, as amended, was insufficient because it did not include the information and its source on which the description of the place to be searched was amended. As the amendment was made before the issuance of the search warrant, the complaint must be examined in that posture.

We believe pronouncements made, by the Illinois Supreme Court in People v. Watson, 26 Ill2d 203, 186 NE2d 326 (1962), and People v. McGrain, 38 Ill2d 189, 230 NE2d 699 (1967), supply the guidelines to be used here. In People v. Watson, the court said (p 205):

“Constitutional requirements relating to searches are satisfied in these cases if the warrant describes the premises to be searched with reasonable certainty, and a technical description is unnecessary. ... A warrant is sufficiently descriptive if it enables the officer, with reasonable effort, to identify the place. ... If the property is sufficiently recognizable from the description to enable the officer to locate the premises with definiteness and certainty, it is adequate. The description may be one used in the locality and known to the people; and by inquiry the officer may be as clearly guided to the place intended as if the legal record description were used. . . . The constitutional safeguard is designed to require a description which particularly points to a definitely ascertainable place so as to exclude all others.”

In People v. McGrain, supra, it is said (p 192):

“Also, apart from what affiant said he personally saw, the fact that his staff was alleged to have seen defendant in possession of the gambling items would have been sufficient to support the complaint. In United States v. Ventresca, 380 US 102,13 L Ed2d 684, 85 S Ct 741, the court held that even hearsay may be the basis for the issuance of a search warrant if a substantial basis for crediting the hearsay is shown, and the observation of fellow officers of the Government engaged in a common investigation are plainly a reliable basis for a warrant applied for by one of their members.
“In conclusion, we subscribe to the further comments of the court in the Ventresca case to the effect that constitutional demands relative to search warrants, like all constitutional requirements, are practical and not abstract; that if the teachings of the court’s cases are to be followed and the constitutional policy served, affidavits for search warrants must be tested and interpreted by magistrates and courts in a common-sense and realistic fashion; that technical requirements of elaborate specificity once exacted under common-law pleadings have no proper place in this area; and that when a magistrate has found probable cause, the courts should not invalidate the warrant by interpreting the affidavit in a hypertechnical, rather than a commonsense manner, for a grudging or negative attitude by reviewing courts toward warrants will tend to discourage police officers from submitting their evidence to a judicial officer before acting.”

As we view the matter, the issuing judge was endeavoring to be sure that the complaint described the premises to be searched with reasonable certainty. The substitution of “north” for the word “right” by Officer Smith was based on hearsay information, which was not included in the complaint. We do not believe that it was necessary that the allegations of the complaint include a recital of why the address was amended. The complaint originally detailed sufficient underlying circumstances to demonstrate the existence of probable cause, and the manner in which the substitution was made of the word “north” for the word “right” did not lessen the effectiveness of the complaint, as amended. Although the record does not affirmatively show that Officer Smith was again sworn after the amendment was made, we agree with the State that the fact that the judge initialed the changes would indicate that both he and the officer understood, without anything being said, that the officer was making the necessary affidavit to obtain the search warrant on the complaint, as amended. See In re Rice, 35 Ill App2d 79, 84-91, 181 NE2d 742 (1962).

We conclude that the instant complaint for search warrant, as amended, showed probable cause, and in quashing the search warrant the trial court gave the complaint, as amended, an unduly technical and restrictive reading. United States v. Ventresca, 380 US 102 (1965).

For the reasons given, the order of the trial court quashing the search warrant and suppressing the evidence is reversed and the cause remanded for trial on the indictment.

Reversed and remanded.

ADESKO, P. J. and BURMAN, J., concur.


author: PER CURIAM.

text:
    James Lusietto, Administrator of the Estate of Shirley Lusietto, Deceased, Plaintiff-Appellee, v. James Kingan, Defendant-Appellant.
    Gen. No. 68-46.
    Third District.
    March 18, 1969.

      William G. Clark, Attorney General of State of Illinois, of Chicago, by James Collins, of Kankakee (John O’Toole, Assistant Attorney General and John J. George, of counsel), for appellant.
    Kevin D. Kelly, of LaSalle, and Walter Durley Boyle and Lynn C. Goldsmith, of Hennepin, for appellee.
   PER CURIAM.

The administrator plaintiff recovered a judgment on a jury’s verdict for $10,000 for the wrongful death of plaintiff’s intestate who was killed while operating an automobile on a portion of State Highway 89 in Putnam County which was under the jurisdiction of the defendant in his capacity as Maintenance Supervisor for certain state highways in District No. 3 of the State Highway Division.

The complaint alleged that the defendant failed to maintain the highway properly and permitted a large and dangerous hole to form and exist in the highway for a long period of time; that the defendant failed to repair the hole when he knew or should have known of such condition; that the defendant failed to warn plaintiff’s intestate of the condition of the highway by way of warning signs, etc., whereupon the car driven by plaintiff’s intestate struck the hole which caused it to leave the road, thereby causing the death of plaintiff’s intestate.

The testimony varied as to the size of the hole, the length of time it had been in existence and as to its location. However, from the jury verdict, it is obvious that the jury believed that the hole was there and that it caused the accident in question.

The defendant was employed by the State of Illinois occupying the position of Maintenance Supervisor for certain state highways in District No. 3 of the State Highway Division. The area under his jurisdiction contained two hundred and forty miles of highways in five counties. That part of State Highway 89 at the place of the occurrence was under his supervision. The defendant had about thirty men under him. On the Monday following the occurrence of the accident, he went to the scene and supervised the men in making repairs. He knew that the section of highway in the area where plaintiff’s intestate was killed was in need of repairs for quite a long time before the accident. There were a lot of holes in the road. There were no barricades at the place of the accident.

Defendant has appealed contending that a suit against a state highway employee alleging nonfeasance in the maintenance of a state highway is in fact a suit against the State of Illinois which suit is prohibited by the Illinois Constitution (art IV, § 26) ; and that, in any event, the evidence adduced by the plaintiff showed neither that the nonfeasance of the defendant constituted negligence in the performance of his duties nor that such nonfeasance was the proximate cause of the death of plaintiff’s intestate.

We believe that the law is clear that a state highway employee may be sued and held individually liable for certain negligent acts committed by him in the course of his employment. Creamer v. Rude, 37 Ill App2d 148, 185 NE2d 345. In order for a negligent act to give rise to liability, however, it is a well established common-law rule that a legal duty must exist in favor of the person injured and imposed on the person whose conduct produces the injury. Aetna Ins. Co. v. Illinois Cent. R. Co., 365 Ill 303, 6 NE2d 189. In the Creamer case above cited and in the cases of Hering v. Hilton, 12 Ill2d 559, 147 NE2d 311, and Free v. Hymbaugh, 23 Ill App2d 211, 162 NE2d 297, relied on by the plaintiff, the defendants in each case were operating motor vehicles on the public highways in a negligent manner. What the opinions said in those cases, in effect, was that the fact of governmental employment could not be used as a shield. The duty imposed on those defendants was held to be the same duty imposed on all other persons operating motor vehicles on the public highways. We believe this to be sound law.

In the instant case, however, the plaintiff is asking that we predicate the defendant’s liability solely on the basis that he is a government employee. That is to say, that as a Maintenance Supervisor of the State Highway Division, he owed a duty to the plaintiff to maintain that portion of the highway where the accident occurred and to have either filled the particular hole that caused the injury or to have posted or barricaded it in some way. With this contention, we cannot agree.

We believe that the plaintiff and the trial court in this case have misconstrued the matter by attempting to impose the State’s duty to maintain the highways upon the defendant. In fact, the defendant’s duty to supervise the maintenance of a certain portion of the State’s highways assigned to him by the State Highway Division is a condition of his employment, a violation of which may give rise to such lawful sanctions as his employer may choose to exercise against him. However, unless a violation of a condition of his employment is simultaneously and independently of such condition also a violation of some duty owed to an individual, such violation will not give rise to legal liability to an individual. Our Supreme Court in Nagle v. Wakey, 161 Ill 387, 393, 43 NE 1079, recognized this distinction between the duty which a Commissioner of Highways owes to an individual and that which he owes to the public in general, holding that for a violation of the former he may be sued by an individual but not so for a violation of a duty he owes to the public in general. In the Nagle case the duty of the Commissioners of Highways to repair and maintain roads and bridges was considered to be a public duty for the violation of which an individual could not maintain an action against the Highway Commissioners. Also, in keeping with this distinction, the Court said in Gage v. Springer, 211 Ill 200, at page 204, 71 NE 860:

“The failure of a public officer to perform a public duty can constitute an individual wrong only when some person can show that in the public duty was involved also a duty to himself as an individual, and that he has suffered a special and peculiar injury by reason of its nonperformance.”

Applying this distinction to the present case, we are of the opinion that the defendant’s duty to maintain the highway in question was a duty owed to the public generally and not to an individual. Whereas, in keeping with the same distinction, the situations involved in Creamer v. Rude, supra, Hering v. Hilton, supra, and Pree v. Hymbaugh, supra, were situations which involved duties owed to the plaintiffs therein.

Additionally, the defendant’s duties were not ministerial, they were governmental in character and required the exercise of discretion and judgment. With regard to holes in the highway, the defendant must exercise discretion and judgment as to which holes to fill and which holes not to fill. Of the holes to be filled, which holes are to be filled first? He must perform all of this within the limitations of available manpower, equipment and finances. It is a well established principle of the common law that an immunity exists in favor of public officials when they are exercising their official discretion on matters which are discretionary in nature and not ministerial. People ex rel. Munson v. Bartels, 138 Ill 322, 27 NE 1091; McCormick v. Burt, 95 Ill 263; Gilbert v. Bone, 64 Ill 518; Kelly v. Ogilvie, 64 Ill App2d 144, 212 NE2d 279. Quite apart from the doctrine of governmental immunity, the case law in this state has developed the doctrine of public officials’ immunity. This doctrine is distinguished from and founded on a different rationale from the principle of governmental immunity. See note 1966, Hlinois Law Forum 981, at 995. In Nagle v. Wakey, supra, our Supreme Court held that the duty to keep highways in repair was a duty which required the exercise of judgment and discretion and that in performing this duty the commissioners were clothed with discretion as to the practicability of making improvements and as to the best methods to be employed, they were therefore protected by this theory of immunity. We believe that the defendant in the case now before us is entitled to that same immunity. Although the case of Molitor v. Kaneland Community Unit School Dist., 18 Ill2d 11, 163 NE2d 89, abolished the principle of governmental immunity, it did not destroy the principle of public officials’ immunity. Neither the Creamer case, supra, the Hering case, supra, nor the Pree case, supra, criticize or change that rule of law in any particular. What these cases say, in effect, is that a public official while operating a motor vehicle on the public highways does not fall within the immunity established by this rule. In fact, the Pree case recognized the existence of the immunity as announced in the Nagle case, and held that the facts in the Pree case were not analogous to the facts in the Nagle case and therefore the immunity would not apply.

In the case of Kelly v. Ogilvie, 64 Ill App2d 144, 212 NE2d 279, which is a case that was decided almost six years after the Molitor case, struck down the principle of governmental immunity, the court recognized that the principle of public officials’ immunity still existed. The court stated:

“This doctrine rests on the principle that the public decision maker, like the judge, ought to be shielded from personal liability or other factors extraneous to a judgment based on his best perception of public needs,” (64 Ill App2d 144 at 147)

and at page 148: “. . . and the reason for quasi-judicial immunity remains.”

The plaintiff has called our attention to the case of Kitto v. Wattleworth, 24 Ill App2d 484, 164 NE2d 817. In that case an action was brought against a Township Road Commissioner and a County Superintendent of Highways, both individually and in their official capacity. The facts in that case were somewhat analogous to the case now before this court. The alleged negligence consisted of the failure of the defendants to maintain the road so as to prevent the dangerous condition from developing. The trial court sustained a motion to dismiss. The Appellate Court reversed, relying on the Molitor case. The decision in the Kitto case is contrary to the decision of our Supreme Court in Nagle v. Wakey, supra. We feel that the Molitor case while it abolished the principle of governmental immunity and overrüled the holding of the Supreme Court in Town of Waltham v. Kemper, 55 HI 346, it did not overrule the decision in the Nagle case. Since the Nagle case has not been overruled by our Supreme Court, we consider the principles announced therein still to be the law of this state. As an Appellate Court, we are bound thereby.

The Court in the Kitto case neglected to distinguish between the principle of governmental immunity and the principle of immunity of governmental officials. The Molitor case, which established new law with regard to the principle of governmental immunity, did not change or overrule the principle of immunity of governmental officials that existed in favor of public officials when exercising their official discretion on matters which are discretionary in nature and not ministerial.

To hold the defendant liable in this case would be productive of many problems. Who, in the chain of command concerning state highways would be responsible? As orders filter down and reports filter up, would each individual in line be personally responsible? What if budget deficiencies due to insufficient legislative appropriations required a restriction in repair work so that only half the holes in the State’s highways could be filled? Moreover, it is common knowledge that no highway is without imperfections. If every rut, hole, or blemish on the highway were to create the possibility of personal liability against one or more employees of the State Highway Department, it would be impossible to find employees willing to serve under such conditions. As was stated in Nagle v. Wakey, 161 Ill 387 at page 392, 43 NE 1079:

“If the officer must answer out of his private fortune for what a jury may regard as a deficiency in judgment, men capable of filling the office, who have any property, would naturally avoid it, — especially in view of the extent of the industry of bringing damage suits covering with duties and neglects every field of imagination as well as of fact.”

We do not believe that defendant’s first contention as to a constitutional prohibition against this kind of suit is a correct statement of the law. We believe, however, that the defendant in this case is not liable to the plaintiff for two reasons, either of which would be sufficient. First, the defendant violated no legal duty imposed on him in favor of the plaintiff. And second, the defendant was protected by the immunity that exists in law in favor of public officials when exercising their official discretion on matters which are discretionary in nature and not ministerial.

Accordingly, it is not necessary for us to consider defendant’s second contention as to the insufficiency of the evidence. We believe, however, that if a duty had existed and if the defendant were not immune, that the evidence in such case, would have been sufficient. Questions of fact are questions for the jury unless the verdict is manifestly or palpably erroneous. Bass v. Rothschild Liquor Stores, 88 Ill App2d 411, 232 NE2d 19; Bolander v. Gypsum Engineering, Inc., 87 Ill App2d 325, 231 NE2d 659.

For the reasons given, the judgment of the Circuit Court of Putnam County is reversed.

Reversed.