author: MR. JUSTICE BURKE

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Anthony Gibbs, Defendant-Appellant.
    Gen. No. 53,050.
    First District, Second Division.
    September 23, 1969.
    Rehearing denied October 21, 1969.

      Leo E. Holt, of Chicago (James G. Carr, of counsel), for appellant.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and James S. Veldman, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE BURKE

delivered the opinion of the court.

Defendant was found guilty at a bench trial of the violation of section 31-1 of the Criminal Code, in that he knowingly obstructed a peace officer in the performance of his duties. (Ill Rev Stats 1967, c 38, par 31-1.) He received a fine of $20 and was assessed costs in the amount of $5. On this appeal defendant contends that the conviction violates his constitutional right of free speech, and that he was not proved guilty beyond all reasonable doubt.

The People’s evidence reveals that on December 11, 1967, Chicago Police Officers Frank Rappaport and Luther Arnold while cruising in their patrol car in the Woodlawn District of Chicago were informed by an unidentified person that a group of teen-aged boys was forming in the vicinity of 65th Street and Woodlawn Avenue. Prior to receiving this information, the officers had received a radio communication of youth gang trouble in the area. The officers proceeded along Kimbark Avenue to 63rd Street, where they observed a group of 10 to 12 boys moving swiftly northbound along Kimbark Avenue. The youths blocked the sidewalk and were shouting obscenities as they moved along. The officers stopped the boys near The Woodlawn Organization office (hereinafter referred to as the “T.W.O.”) at 1204 East 63rd Street, and the boys were ordered to stand with their hands against a nearby building. The officers then commenced a search of the group.

The officers had been searching the boys approximately one minute, when defendant, a T.W.O. staff member, came out of the T.W.O. office and demanded to know what was going on. The officers told defendant not to interfere in police business, but defendant began objecting to the officers’ treatment of the boys. He stated that they had no right to search the boys and that they were thereby violating the boys’ constitutional rights. Defendant then told the boys that they did not have to submit to the officers’ search and that they should go into the T.W.O. office, which defendant stated was private property, where the officers would not be able to search them without a proper warrant. At this point a large group of people began to gather at the scene.

Defendant then left the officers and the boys and went into the T.W.O. office, stating that he was going to telephone the officers’ commander in order to have the matter straightened out. As he walked away, 7 or 8 of the boys followed him inside. The officers also entered the office to bring the boys out, but found that the boys in question had joined a group of 35 to 40 other youths who were in the office at the time. Defendant told the officers they had no right on the T.W.O. premises without a warrant since it was private property, and defendant was again warned by the officers that he was interfering with police business. Defendant continued to maintain his position and was then placed under arrest.

Defendant and his witnesses testified that they were inside the T.W.O. office and observed a group of boys being searched outside the office. Defendant went outside to inquire into the situation and informed the officers that they were violating the constitutional rights of the boys, in that “there was a new law that had been passed —that had been vetoed by the Governor on stop and frisk in this State.” He told the officers that he was going to telephone their commanding officer in order to straighten the matter out. Defendant thereupon entered the T.W.O. office, telephoned the officers’ commander, and was thereafter placed under arrest. Defendant denied that he induced any of the group stopped by the officers to follow him into the T.W.O. office. He stated that he was in no manner abusive to the officers, and that he gave them no cause to place him under arrest.

Defendant first contends that the conduct which serves as the basis of his conviction is protected by the constitutional right of free speech and that, therefore, the application of the penalty provisions of section 31-1 for such conduct is improper. We are of the opinion that under the evidence taken as a whole, defendant was convicted on the basis of conduct proscribed by the statute and which was designed to have the foreseeable result of obstructing the two police officers in the proper performance of their duties.

We are in agreement with defendant’s position that a state may not unduly suppress free communication of views under the guise of conserving desirable conditions. Cantwell v. Connecticut, 310 US 296. Nonetheless, it was also stated in the Cantwell opinion, at page 308, that where the clear and present danger of riot, disorder, interference with traffic upon the public streets, or other immediate threat to the public safety, peace or order appears, the power of the state to prevent or to punish cannot be denied. Thus, it has been held that the constitutional guarantee of free speech does not give a person the unbridled right to speak. See Konigsberg v. State Bar, 366 US 36, 49-51. The constitutionality of section 31-1 has been upheld by our Supreme Court in People v. Raby, 40 Ill2d 392, 240 NE2d 595, which agreed with an earlier decision on the question rendered by the United States District Court in Landry v. Daley, 280 F Supp 938, 959.

Defendant, however, directs our attention to language in the Landry case, adopted by the Supreme Court in the Raby case, to the effect that mere argument with a police officer concerning the validity of an arrest or other police action is not proscribed by the statute, but that what is proscribed is “some physical act which imposes an obstacle which may impede, hinder, interrupt, prevent, or delay the performance of the officer’s duties, . . . .” See Landry v. Daley, 280 F Supp, at p 959; see also People v. Raby, 40 Ill2d 392, at pp 398-399, 240 NE2d 595. The United States Supreme Court has also observed that mere remonstrances or criticisms of an officer in the performance of his duties are not usually held to be the equivalent of unlawful interference, but that the use of force or the threatened use thereof is not always an indispensable ingredient of the offense of unlawful interference. District of Columbia v. Little, 339 US 1, 6.

According to the evidence supporting the People’s case, a situation is presented here which was not contemplated by the language in the Landry and Raby cases quoted above, namely, a situation in which the conduct complained of falls between “mere argument” with the officer and “some physical act” which interferes with the performance of his duties.

The People’s evidence shows that the boys were stopped by the officers because they were acting in a disorderly manner on a public sidewalk and further because the officers, shortly prior thereto, had been informed of youth gang trouble in the immediate area. The evidence also shows that the boys submitted to the search, apparently without objection, by placing their hands against the building as ordered by the officers. The search had been in progress under these controlled circumstances approximately one minute before defendant arrived on the scene and demanded to know what was going on. He was told by one of the officers that the boys were under arrest, that it was a police matter, and that it was no concern of his. Defendant thereupon proceeded to argue with the officers concerning the boys’ constitutional rights. Defendant then directed statements to the boys, advising them to enter the T.W.O. office where the officers would be unable to search them without a proper warrant. The People’s evidence shows that a large crowd then gathered at the scene. After defendant made the statements to the boys and turned to enter the T.W.O. office, the boys snickered and most of them began to follow him into the office. In the office the boys joined a group of 35 to 40 other youths and, as Officer Arnold stated at trial, “it would have been difficult to pick them out of the crowd.” Officer Rappaport testified that he and Officer Arnold had “lost complete control of the situation.”

It is clear that defendant here did not “merely argue” with the officers concerning the search being made of the boys; he went further, and directed statements to the boys, advising them that the officers had no right to search them and telling them that if they entered the T.W.O. office the officers would be powerless to search them without a warrant. The boys then followed defendant into the T.W.O. office as he entered, and joined 35 to 40 other youths already in the office. The officers, as the evidence shows, initially had complete control of the situation, but after defendant appeared on the scene and instructed the boys to go into the T.W.O. office, the officers lost control of the boys and were unable to complete the arrest. Under these circumstances, it is clear that defendant interfered with and obstructed the officers in the performance of their duties as completely and as effectively as if he physically touched or otherwise physically interfered with the officers.

In People v. Cooks, 58 Cal Rptr 550 (Cal App, 1967), a police officer entered a cocktail lounge run by the defendant, for the purpose of questioning a customer who resembled a person wanted for a robbery. When the officer requested the suspect’s identification, the defendant interfered and wanted to know the officer’s purpose in questioning his customer. The suspect at first made a motion toward his pocket, as if attempting to procure identification, and defendant motioned for him to stop. Defendant told the suspect not to show the officer anything and the officer told the defendant that the matter was not his concern. A discussion ensued between the officer and the defendant, wherein both repeated their positions. The suspect thereafter refused to show the officer his identification and was placed under arrest, and defendant was charged with obstructing the officer in the performance of his duties.

The court in the Cooks case stated, p 552:

“Defendant . . . deliberately and willfully set about to delay and obstruct the police officer in his rightful attempt to question the suspect; and, defendant pointedly succeeded in his purpose. Such speech-conduct with respect to this front line function of the law is even less tolerable than a focused attempt to influence a particular court decision.”

Defendant contends that the Cooks case is distinguishable from the case at bar for the reasons that the suspect in Cooks was, in fact, placed under arrest and that there was a definite relationship in the Cooks case between the defendant’s interference and the suspect’s refusal to produce his identification. It need only be said in this regard that the officers here were unable to complete their arrest of the boys on the disorderly conduct charge because defendant told them to enter the T.W.O. office, which they did, where they mingled with 35 to 40 other youths.

The three other points raised by defendant question the sufficiency of the evidence in support of his conviction.

The determination of the sufficiency of evidence and the weight to be given to the testimony of the witnesses is a matter for the trier of fact. That determination will not be set aside except where the evidence is so improbable or unsatisfactory as to raise a serious doubt as to the defendant’s guilt. People v. Schehr, 88 Ill App 2d 287, 292-293, 232 NE2d 566. The foregoing summary of the People’s evidence reveals that there was sufficient evidence, if believed, to find defendant guilty of a violation of section 31-1 of the Criminal Code, beyond a reasonable doubt.

Specifically, as to the question of whether the officers were acting in a legal manner in searching the youths, the People’s evidence is that the officers were informed of youth gang trouble in the immediate area and observed the youths, whom they later stopped, acting in a disorderly manner. Officer Arnold testified that the youths were stopped, placed under arrest for disorderly conduct, and ordered to place their hands against the nearby building. Although Officer Rappaport testified that the boys were not placed under arrest prior to the time when the defendant interfered, he did state that the officers were in the “preliminary stages of taking the boys into custody.” It should also be noted that defendant spent most of the time speaking with Officer Rappaport, whereas Officer Arnold concerned himself with searching the youths. Nevertheless, this was a matter of credibility of the witnesses, to be determined by the trier of fact, and not a matter of competency or admissibility of the evidence.

The evidence supports defendant’s conviction beyond a reasonable doubt.

For these reasons the judgment is affirmed.

Judgment affirmed.

LYONS, P. J. and McCORMICK, J., concur.


source: Caselaw Access Project

author: MR. JUSTICE McCORMICK

license: Public Domain

text:
    Saul Kahn, Plaintiff-Appellee, v. Deerpark Investment Co., an Illinois Corporation Elm Investment Co., an Illinois Corporation, and Charles Biggam, Defendants, and Quinlan and Tyson Mortgage Corporation, Citation Respondent-Appellant.
    Gen. No. 53,619.
    First District, Second Division.
    September 23, 1969.

      Cummings & Wyman, of Chicago (Austin L. Wyman, Jr. and James M. Staulcup, Jr., of counsel), for appellant.
    Charles C. Kirshbaum, of Chicago (Harry G. Fins, of counsel), for appellee.
   MR. JUSTICE McCORMICK

delivered the opinion of the court.

On April 2,1965, the Elm Investment Company owned a parcel of real estate located in Zion, Illinois, which will be referred to as “the Zion property.” On that date Elm executed a lease on the property in question. On June 1, 1965, the lease was assigned to Penn Mutual Life Insurance Company as security for Penn’s first mortgage on the Zion property. Penn appointed Hart, Shaw and Company (predecessor to Quinlan and Tyson) as its administrative agents of both the mortgage and the assigned lease. Under an agreement Elm was entitled to rentals collected by Hart which exceeded sums necessary to pay installments on the mortgage loan.

On December 8, 1966, the plaintiff obtained judgments against Deerpark Investment Co., Elm Investment Co., and Charles Biggam, the owner of the two companies. The judgments were obtained in the Circuit Court of Cook County, but were not recorded in Lake County until February 8, 1968. On December 22, 1966, Elm assigned to plaintiff its right to receive the excess rentals on the Zion property, which assignment was made to secure the payment of the judgment debt of December 8, 1966. This assignment to the plaintiff (which was never recorded) is the first of the two competing interests.

On January 4, 1967, Comet Builders and Supply Corp. obtained judgment against Biggam. On February 6,1967, a land trust was created on the Zion property which was conveyed by Elm to the Cosmopolitan National Bank, as trustee for the beneficial owner, Colonial Bank and Trust Co. of Chicago, which conveyance was made to secure part of a loan made at Colonial. On February 15, 1967, Comet commenced garnishment proceedings in connection with its judgment against Biggam. As a result of subsequent negotiations, Colonial assigned its beneficial interest in the newly created land trust on the Zion property to Elm on April 4, 1968, and on the same date Elm assigned that interest to Comet. It is this beneficial interest of Comet’s which is the second of the two competing interests. Comet repaid to Colonial all the indebtedness of Biggam and Elm, and on March 12, 1968, entered into an agreement with Biggam by which Biggam, in a satisfaction of debts owed Comet, would sell Comet the Zion property, among other things. Priority must be given either to plaintiff’s assignment interest or to Comet’s assignment interest.

As beneficiary of the trust Comet had claimed to be entitled to all excess rentals, but after a bench trial Quinlan and Tyson (successor administrator to Hart) were ordered to pay all excess rentals to the plaintiff. A motion of Quinlan and Tyson to set aside that order was denied, and this appeal is taken from the original order and the order denying the motion to vacate.

Quinlan and Tyson argue that plaintiff’s interest in the excess rentals, as an incident to an estate in land, was subject to the recording statute, and that since the interest was not recorded as of the date Comet received its assignment, Comet was entitled to rely upon a title search of the Zion property which disclosed no recorded interests in it. This being the case, Comet’s interest in the recorded trust is superior to that of the plaintiff. The plaintiff asserts, however, that the subject matter under review — the excess rentals — is personalty, not real estate, and that the law of real estate is therefore inapplicable, and no recording was required to perfect the interest of plaintiff.

Ill Rev Stats 1967, c 30, § 27 provides in pertinent part:

“Deeds, mortgages, powers of attorney, and other instruments relating to or affecting the title to real estate in this state, shall be recorded in the county in which such real estate is situated; . . . .”

Section 29 provides that authorized instruments which are unrecorded are void as to subsequent creditors and purchasers, without notice, and that such documents are ineffective as to subsequent creditors and purchasers until recorded. Section 37 of the statute provides:

“The term ‘real estate,’ as used in this act, shall be construed as co-extensive in meaning with ‘lands, tenements and hereditaments,’ and as embracing all chattels real.”

The determination of this case requires an analysis of whether or not plaintiff’s interest in the Zion property was subject to the Recording Act. If it was, the plaintiff’s interest did not become effective against Comet because it was not recorded at the time Comet took its interest in the land trust on the same property. The plaintiff’s argument is based entirely on the fact that the subject matter of the suit concerns the interest of a beneficiary of a land trust. The difficulty with this argument is that plaintiff treats its own interest as the beneficial interest in a land trust, but the land trust which was created was assigned to Comet, not to the plaintiff. Consequently, all the cases cited by plaintiff for the proposition that beneficial interests in land trusts are personalty and therefore not subject to the Recording Act, are not relevant, because plaintiff’s interest was not that of a holder of a beneficial interest in a land trust, but simply an assignment of excess rentals in payment of a judgment, and no semantic fabrication can transpose that interest into a land trust.

The question that remains is whether the assignment was subject to the Recording Act, and we feel that the determination of that question centers on an analysis of the statutory language. Is an assignment of excess rentals an instrument “relating to or affecting title to real estate?” If so, it was subject to the act and the failure to record it would mean that it was ineffective as against Comet who took its interest without notice of the prior assignment. The statute sets out that the term “real estate” should be construed as coextensive with lands, tenements and hereditaments, and as embracing all chattels real. It thus appears that the legislature was interested in giving a broad scope to the statute. If the assignment of excess rentals falls within any of the statutory guides as to what constitutes real estate, then the assignment could be effective against Comet only if it had been recorded when Comet took its interest in the trust.

In People v. Phillips, 394 Ill 119, 67 NE2d 281, the court was faced with the question of whether an oil lease conveyed a taxable estate in land separate from the rent or royalty to be paid. The court pointed out at page 122 that “rent to grow due is a part of the land and incident to it, . . . .” On page 123 the court quoted with approval from State v. Royal Mineral Ass’n, 132 Minn 232, 156 NW 128, where it was said, “Unaccrued rents are not personal property. They are incorporeal hereditaments. They are an incident to the reversion and follow the land.” (Emphasis supplied.)

Since the right to future rents is an incident to an estate in land, the assignment of such a right is a conveyance of a hereditament. In the case before us the plaintiff received an assignment of a hereditament, and our statute provides that real estate and hereditaments are coextensive and an instrument relating to or affecting title to real estate must be recorded to be perfected against subsequent purchasers and creditors, without notice. Since the plaintiff’s interest was one relating to or affecting real estate as defined by section 37, it had to be recorded to be perfected, and since it was not recorded, Comet Builders, as a subsequent creditor without notice, took free of any interest of the plaintiff.

In Bullard v. Turner, 357 Ill 279, 192 NE 223, certain real estate was owned by Turner. On November 28, 1921, he executed a lease of the west half to the Brockton Heel Company for a term from March 1,1922 to April 30,1927, with the option to extend the term for an additional five years, which option was exercised by lessee. On July 1, 1929, the property was encumbered by a first mortgage to Bullard. Prior to that time Turner had become indebted to the Standard Chair Company of Pennsylvania, and to secure the payment of his indebtedness, assigned to that company, by two instruments dated August 8, 1927, the lease he had made to Brockton and the rental accruing under it. These assignments were not recorded. The controversy concerned Brockton’s right to collect rents during the pendency of the foreclosure, and the court said at page 282:

“The decision of that question depends upon the legal effect of the unrecorded assignments of the lease and the rental without notice of the rights growing out of such assignments other than that afforded by the occupancy of the tenant. The appellant contends that there was no competent proof of the assignments; that even if there were such proof, the possession by the tenant did not give constructive notice of the appellee’s claim; that, unless the trustee had actual notice of the assignments, he had the right to assume that no such instruments existed, and that, to constitute notice to the appellant, the assignments should have been recorded.”

The appellee contended that possession of property by a tenant is notice not only of the right, title and interest of the tenant and of the landlord, but also of the rights of the person to whom the tenant pays rent, and that actual notice of the rights of the appellee was not necessary because the possession of the tenant was sufficient to put the trustee on inquiry, the neglect or omission of which nevertheless bound the trustee by whatever facts an inquiry would have disclosed. The court held that the assignee of the rentals failed to protect his interest by recording, and as a result, his interest was subordinate to that of the mortgagee. The court said at page 284:

“The assignee, by the assignments, claimed an interest in the demised real property and was charged with knowledge of the statutory requirement that to have such an interest protected against subsequent purchasers and incumbrancers, the assignments should have been recorded. Owing to the failure to record them, an examination of the public records pertaining to the title to the property would not have disclosed their existence. . . . There is neither claim nor proof that the trustee had actual notice of the assignments; the assignee did not protect its interest by filing them for record, and the trustee, therefore, has the right to rely upon section 30 of the act concerning conveyances.” [Section 30 referred to is currently section 29 of the Conveyance Act.]

In the instant case, the beneficial owner of an interest in the land trust also asserts that it made a record search which showed no prior interest attaching to the property in question, and the plaintiff has neither claimed nor proved that the beneficiary had actual notice of the assignments. The policy of allowing parties to rely on the public record regarding interests relating to or affecting real estate has long been recognized in this State. First Nat. Bank of Chicago v. Paris, 358 Ill 378, 385, 193 NE 207; Turpin v. Ogle, 4 Ill App 611, 621.

Plaintiff attempts to avoid a review of its case by this court by arguing that there was no report of proceedings, and we are therefore bound to presume that there was sufficient evidence to sustain the trial court’s decision because no factual issue may be reviewed. In plaintiff’s argument it is pointed out that several statements of fact made by the citation respondent are unsupported by the record because there is no report of proceedings.

Memorandums of law had been filed in the trial court in which the pertinent facts were stated and to which plaintiff apparently acquiesced since it did not reply that the facts were other than as stated. It should also be noted that in this court the plaintiff failed to include a statement of facts while the citation respondent did make its statement. The plaintiff only suggested that several of the citation respondent’s statements were unsupported by the record on appeal. Regarding plaintiff’s assertion that the statements were not supported by the record on appeal, we note that Supreme Court Rule 321 provides in pertinent part:

“The record on appeal shall consist of the judgment appealed from, the notice of appeal, and other parts of the trial court record designated in the praecipes. The trial court record includes any report of proceedings and, every other document filed and judgment and order entered in the cause.” [Emphasis supplied.]

The citation respondent’s statement to this court is extracted from the briefs filed in the trial court, which briefs were documents filed in the cause, were part of the trial court record, and therefore became a part of the record on appeal.

Although the plaintiff suggests that we not consider certain statements made by the citation respondent, it has never affirmatively set out that any of those statements are untrue, and we feel there is no real issue over any factual matters. The question presented for review is primarily one of law. Pilafas v. Pilafas, 39 Ill App2d 69, 72, 188 NE2d 235; Kuhlman v. Cotter, 92 Ill App2d 475, 477, 234 NE2d 815.

In considering that question of law, we have reached the conclusion that the trial court erred when it directed the citation respondent to pay the excess rentals to the plaintiff, and erred when it denied citation respondent’s motion to vacate its order. The assignment of the excess rentals was subject to the Recording Act for the reasons we have set out, and Comet Builders therefore took free of the unrecorded interest. The orders appealed from are reversed.

Orders reversed.

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


author: MR. JUSTICE McCORMICK BURKE, J.,

text:
    Gibraltar Insurance Company, an Illinois Corporation, Plaintiff-Appellant, v. Michael Varkalis, Administrator of the Estate of Veronica Varkalis, Deceased, and Kenneth Robinson, Defendants-Appellees.
    Gen. No. 52,522.
    First District, Second Division.
    November 4, 1969.

      BURKE, J., dissenting.
    John Narusis, Jr., of Lazzara, Narusis & Stimson, of Chicago (John Narusis, Jr., of counsel), for appellant.
    Griffin & Gallagher, of Chicago (Daniel A. Gallagher, of counsel), for appellee.
   MR. JUSTICE McCORMICK

delivered the opinion of the court as modified on rehearing.

This appeal was originally taken from an order entered in the trial court dismissing the complaint filed by the plaintiff, Gibraltar Insurance Company, praying for a declaratory judgment to adjudicate the rights of the parties under an automobile policy which had been issued by plaintiff. Defendants Michael Varkalis, administrator of the estate of Veronica Varkalis, and Kenneth Robinson filed a motion in the trial court to dismiss the complaint. The trial court sustained the motion, and from that ruling this appeal is taken. The question presented to this court is whether the action of the trial court was proper.

On October 28, 1966, plaintiff filed a complaint alleging, among other things, that the action was brought for a declaratory judgment “to declare and determine the rights of the parties hereto”; that the plaintiff was a licensed insurance company engaged in that business; that on or about December 17, 1960, plaintiff issued to Kenneth Robinson a policy effective December 15, 1960, and “that by the terms of said policy, in consideration of the payment of the premium and in reliance upon statements and declarations and applications for insurance, but subject to the limits of liability, exclusions and conditions set forth in said policy, the plaintiff undertook to insure the defendant, Kenneth Robinson, against loss arising out of the defendant’s legal liability to pay damage for injuries to person or damages to property of any person caused by the automobile described in the aforementioned policy of insurance; and by the terms of which plaintiff agreed to defend at the Company’s expense, any suit for injuries or property damage brought against said defendant, Kenneth Robinson, arising out of the operation of the vehicle covered by the policy described herein.”

The complaint further alleged that on May 12, 1961, Kenneth Robinson, while operating the automobile so insured, in which Veronica Varkalis was a passenger, struck Veronica Varkalis on the head with a bottle, pushed her from the automobile, and repeatedly ran over her, causing her death. It was alleged that by the terms of said policy, assault and battery were to be deemed an accident unless committed by or at the direction of the insured; that the plaintiff denied that it had any duty or obligation to defend Kenneth Robinson, or that in the event a judgment was entered against him it had any obligation to pay defendant Varkalis under the provisions of plaintiff’s policy of insurance, for the reason that the policy does not cover assault and battery done at the direction of the insured.

It was further alleged that a cause of action had arisen under the Declaratory Judgments Act (Ill Rev Stats 1965, c 110, § 57.1) which controversy is justiciable within the provision of the statute; that plaintiff therefore prays that the court find and declare that plaintiff owes no duty to defend Kenneth Robinson or to pay any judgment entered in favor of Michael Varkalis, administrator, against Kenneth Robinson.

On December 5, 1966, defendant filed a motion to dismiss the complaint for declaratory judgment. On May 26, 1967, the court entered an order giving leave to the plaintiff to file its first amended complaint, and allowing the motion to dismiss the original complaint filed by defendant to stand as a motion to dismiss the first amended complaint.

On May 26, 1967, the plaintiff filed its first amended complaint for declaratory judgment and that complaint repeats in substance the allegations with reference to the death of Veronica Varkalis and further alleges that by the terms of its exclusion clause it does not apply to bodily injuries caused intentionally by or at the direction of the insured. It is alleged that a suit was filed by Michael Varkalis as Administrator of the Estate of Veronica Varkalis v. Kenneth Robinson, a copy of which was attached as Exhibit B. It is further stated that “Gilbraltar Mutual Casualty Company was called upon to defend and did provide a defense for said Kenneth Robinson as reflected in court order dated May 15, 1967, marked Exhibit C, and court order dated May 15, 1967 and marked Exhibit D, and Exhibit D-2.”

The complaint further alleged that “on May 15, 1967 a bench trial was held after waiver of jury and Judge Butler found for the plaintiff and against the defendant, Kenneth Robinson, in the amount of $30,000.00 less $4,500.00 or $25,500.00 as reflected in court order dated May 15, 1967 attached as Exhibit E”; that the plaintiff “denies that it has any obligation to pay under the provisions of said policy on the behalf of Kenneth Robinson any judgment rendered against him in the case of ‘Michael Varkalis, Administrator of the Estate of Veronica Varkalis, Deceased v. Kenneth Robinson’, . . . for the reason that said policy of insurance does not cover bodily injury or death caused intentionally by or at the direction of the insured; that said Kenneth Robinson was indicted for unlawfully, wilfully, feloniously and of his malice aforethought, killing and murdering said Veronica Varkalis, pleaded guilty and was sentenced as reflected in attached Exhibit F.”

The prayer for relief is the same as that in the original complaint, asking that the court find the plaintiff owes no duty to defendant Kenneth Robinson, or to pay any judgments entered in favor of Michael Varkalis, administrator, against Kenneth Robinson, and that the court “find and declare that such other and further rights in the premises as are necessary and proper for the full determination of the controversy and as justice may require.”

The plaintiff does not allege that at the time it provided defense for Kenneth Robinson there was any reservation of rights served upon Robinson. The original motion to dismiss the complaint filed on December 5, 1966, which motion the court ordered to be considered with reference to the amended complaint, sets out that from the record of the court it appears that “plaintiff had further notice of such a, claim on or before March 9, 1964, when it caused its attorney to file an appearance for Kenneth Robinson, . . . and thereby undertook to defend said claim of said Administrator against plaintiff’s insured, Kenneth Robinson”; that on April 13, 1964, the attorney for plaintiff filed a motion to dismiss the cause, the motion was denied on May 11, 1964, and the answer filed by plaintiff’s attorney was ordered to stand as the answer to the complaint.

It is also alleged that plaintiff’s attorney participated in a pretrial conference on June 10, 1965, and at other times. It is stated that “by reason of said undertakings and said participation in said cause . . . , plaintiff is estopped from now asserting non-liability upon its policy and plaintiff has waived any right to assert such non-liability.”

On an affidavit attached to the motion to dismiss, Joseph P. Griffin states that he is a partner in the law firm of Griffin and Gallagher; that the law firm is attorney of record for Michael Varkalis; that on May 31, 1961, the affiant served upon Robinson a notice of attorney’s lien, and that on June 1, 1961, a letter was sent to Robinson informing him that Griffin and Gallagher were the legal representative of the estate of Veronica Varkalis, and requesting that Robinson forward the letter and lien to his insurance company.

On July 13, 1961, the affiant received a telephone call from a Mr. Casati who identified himself as an adjuster for Gibraltar Insurance Company, and stated that “his company was considering the proposition that it had no liability to defend the claim of Veronica Varkalis because it had evidence to the effect that the injuries inflicted upon her by Robinson were inflicted intentionally upon her.”

It is stated that on March 29, 1962, Griffin and Gallagher filed suit in the Circuit Court of Cook County on the said claim and that summons was served upon Robinson on April 3, 1962; that on February 13, 1964, a letter was written by the firm of Griffin and Gallagher to Gibraltar Mutual Casualty Company, advising that no appearance had been filed in the lawsuit on behalf of Kenneth Robinson, a photocopy of which letter was attached. It is stated that on March 19, 1964, “by the law firm of Anthony R. Lazzara, the appearance in said cause ... of defendant, Kenneth Robinson was filed; that on the same date, March 19, 1964, said law firm filed . . . the Answer of said defendant, Kenneth Robinson; that on April 13, 1964 said law firm, on behalf of said defendant, Kenneth Robinson, filed a Motion to Strike the Complaint in the said cause . . . ; that said law firm represented defendant Kenneth Robinson in argument on said Motion in court on May 11, 1964 when said motion was denied. That a representative of the law firm of Anthony R. Lazzara attended a number of pre-trial conferences held in such case before Judges Benjamin Wham, Frank Bicek, and Robert McAuliffe in this court.”

The plaintiff here argues that the action was based on a written contract — the automobile policy issued to Kenneth Robinson — and that the ten-year statute is therefore applicable; that since the ten-year statute is relevant, time had not expired within which to file a declaratory judgment suit, and that the trial court therefore erroneously dismissed the suit. Plaintiff further argues that the cause of action accrued on May 15, 1967, the date on which judgment was entered in the trial court in favor of Michael Varkalis against Kenneth Robinson. Therefore, according to plaintiff’s theory, if we should apply the five-year statute the plaintiff would have until May 15, 1972, to file suit for declaratory judgment.

The answer to plaintiff’s argument is to be found in its own complaint filed seven months before the May 15 judgment was entered. In that complaint it was alleged that plaintiff had no duty to Kenneth Robinson or to the administrator who might obtain a judgment against Robinson. In other words, plaintiff recognized that a controversy already existed; namely, the one which arose on May 12, 1961, when Veronica Varkalis was killed, and this recognition is apparent from its very denial of a duty to pay. The cause of action accrued from the moment of death.

The Declaratory Judgments Act is statutory and provides for a remedy “unknown to the common law.” State Farm Mut. Automobile Ins. Co. v. Morris, 29 Ill App 2d 451, 459, 173 NE2d 590. The purpose of the act is not to replace, but to add to existing remedies. It is cumulative with other methods of judicial determination.

It has been held that where an action is statutory it is “a civil action not otherwise provided for” within the meaning of section 16 (or its predecessor, section 15) of Chapter 83. Blakeslee’s Storage Warehouses, Inc. v. City of Chicago, 369 111 480, 17 NE2d 1; Lyons v. County of Morgan, 313 Ill App 296, 40 NE2d 103. In Wakat v. Harlib, 253 F2d 59 (7th Cir), the plaintiff had sued police for violations of the Federal Civil Rights Act. Defendants urged that the plaintiff’s cause of action was barred by the Illinois Limitations Act. Under the Illinois act the plaintiff had had two years within which to bring suit for [in the words of the statute] “Actions for damages for an injury to the person, or for false imprisonment, or malicious prosecution, or for a statutory penalty, . . In that case the plaintiff argued that the action was within another section of the Limitations Act which provided a five-year limitation for specified actions, “and all civil actions not otherwise provided for.” The court held that the action relied on by plaintiff was a statutory one, and said at page 63: “A statutory right of action is a ‘civil action not otherwise provided for’ within the meaning of” the five-year statute of limitations.

In the case before us we find that the action brought was a statutory one and was within the phrase “civil action not otherwise provided for” which statement appears in the five-year statute of limitations. That statute being controlling, and with more than five years having elapsed since the cause of action had accrued, the trial court correctly dismissed the action.

If an action is properly brought under the Declaratory Judgments Act the courts will view it as a statutory action and apply the rules accordingly. In Crerar Clinch Coal Co. v. Board of Education, 13 Ill App2d 208, 141 NE2d 393, the court said at page 218:

“. . . construction of a contract is a proper type of action under the Declaratory Judgments Act, that such an action is statutory and sui generis, and that the action retains its nature even though the plaintiff requests, and the court grants, an accounting, money damages or other incidental relief.”

Plaintiff’s argument is that since a declaratory judgment action does not itself grant substantive relief and is merely a procedural mechanism through which to obtain declarations by the court as to substantive rights, it should not be accorded the status of a “civil action not otherwise provided for.” However, we cannot overlook the fact that if it were not for the declaratory form of relief provided by statute, litigants would not be able to obtain declarations of rights that are now available under the statutory procedure. Therefore, it is necessary to look to the statute to determine the time within which such suits must be brought.

In his memorandum and argument in the trial court the defendant urged that laches, estoppel and waiver barred the declaratory judgment proceedings. In an affidavit attached to defendant’s motion to dismiss plaintiff’s declaratory judgment suit, the defendant alleged that on July 13, 1961, the adjuster for Gibraltar Mutual Casualty Company called defendant’s attorney and stated that his company was considering the proposition that Gibraltar was under no liability to defend the claim since it had evidence that the injuries upon the deceased were inflicted intentionally. On March 29, 1962, the defendant in the instant case (Michael Varkalis) filed suit against Kenneth Robinson, and on February 13, 1964, attorneys for said defendant wrote to Gibraltar, advising that no appearance had been filed in the suit against Robinson, the company’s insured. On March 19, 1964, an appearance was filed by the law firm of Lazzara, Narusis & Stimson. At that time Gibraltar did not notify the insured that it was defending under a reservation of rights.

On April 13, 1964, a motion to strike the complaint was argued by the Gibraltar attorneys on behalf of Robinson, and on May 11, 1964, a motion to dismiss the original complaint was also argued. In its petition for rehearing, Gibraltar’s president set out an affidavit which stated that the defense of the lawsuit against Robinson was under reservation of rights and that “. . . Robinson was notified on or about July 13, 1965 that a defense would be provided, but Gibraltar would not extend coverage under the policy via verdict or judgment, because of the wilful characteristics of his conduct on the date of the accident May 13, 1961.” In its petition for rehearing Gibraltar enclosed a copy of that letter; however, on March 19, 1964, when Gibraltar’s attorneys appeared in the case for Robinson, there was nothing in the record which could be construed as a reservation of rights.

It is worthwhile to again check the chronology of the case:

March 19,1962, suit against Robinson filed.

April 3,1962, summons served on Robinson.

February 13, 1964, letter from Varkalis attorneys to Robinson advising no appearance had been filed. March 19, 1964, appearance filed for Robinson by Gibraltar’s attorneys.

March 19, 1964, Robinson’s answer filed by same attorneys.

March 13, 1964, motion to strike complaint made by same attorneys.

May 11, 1964, motion to dismiss suit argued and denied by court.

The letter relied on by Gibraltar as making a reservation of rights was written on July 13, 1965. On May 15, 1967, in the case of Varkalis v. Robinson, an order was entered by Judge Butler setting out that after trial the court found the issues for plaintiff Varkalis and against Robinson, assessing the damages in the sum of $30,000, from which judgment the court entered a remittitur of $4,500. On the same day Judge Butler also entered an order permitting Lazzara, Narusis & Stimson to withdraw as attorneys for Robinson, and further providing that “. . . in the best interest of justice that the Court appoint an attorney to represent Kenneth Robinson during the course of the trial . . . and that said attorney should be paid by the Gibraltar Casualty Insurance Company.” The court then appointed A. G. Scheele as attorney for Robinson, and further ordered that Gibraltar compensate Scheele for services rendered. Much of this appears in the amended complaint of Gibraltar in the case before us.

We must now consider the rule governing the question as to whether or not Gibraltar had waived its right to assert in a declaratory judgment action that it owed no liability to Robinson. In Apex Mut. Ins. Co. v. Christner, 99 Ill App2d 153, 240 NE2d 742, the insurance company had filed a suit to obtain a declaratory judgment that it had no duty to defend or pay judgment against the insured on the ground that the insured had breached the cooperation clause of the insurance policy, and that Apex had not waived the breach. In its brief the insured admitted it had breached the clause, but argued that Apex had waived the breach. The Appellate Court held that service upon the defendant in the declaratory judgment action preserved for the plaintiff those defenses enumerated in its complaint for declaratory relief “even though the insurer, without objection by the insured, continued meanwhile to represent its insured in the injury action.” In other words, the majority opinion treated the service upon the insured as an effectual reservation of rights on the part of Apex.

In that case discovery depositions were taken from the insured on April 18, 1963. On September 18, the insured signed a written statement that her April deposition contained lies and that she was in fact solely liable for the accident which was the subject of the suit against her. A hearing was set for December 17, 1963, on the plaintiff’s motion for summary judgment. On December 11, 1963, Apex filed a declaratory judgment suit on the ground that the insured’s breach of September 18 released the insurance company from the obligation to defend her or to pay any judgment against her. The insured was served in the declaratory judgment action on December 15,1963.

In Apex, the court stated at page 161:

“It is well settled that assumption of the insured’s defense constitutes a waiver by the insurer of all questions of policy coverage. Bourne v. Seal, 53 Ill App2d 155, 203 NE2d 12; American Cas. Co. of Reading, Pa. v. Shely, 314 Ky 80, 234 SW2d 303 (1950); see De Hart v. Illinois Cas. Co., 116 F2d 685, 688. If, therefore, in spite of its doubts as to coverage, the insurer elects to take over the insured’s defense, it will afterwards be estopped from denying its own liability under the policy.”

At page 162 the court continued:

“Sims v. Illinois Nat. Cas. Co. of Springfield, 43 Ill App2d 184, 199, 193 NE2d 123, cited with approval in Lincoln Cas. Co. v. Vic & Mario’s, Inc., 62 Ill App2d 262, 267, 210 NE2d 329, discusses the insurer’s options in such a predicament:
“ ‘However, all authorities agree that quite often an insurer is faced with a dilemma as to whether to defend or to refuse to defend. In cases of doubt the answer is simple. (1) Seek a declaratory-judgment as to its obligations and rights or (2) defend under a reservation of rights.’ ”

And at 164 the court stated:

“An insurer will not be estopped from asserting a breach of the cooperation clause by its insured if it repudiates liability within a reasonable time after becoming aware of the insured’s failure to cooperate. Krutsinger v. Illinois Gas. Co., 10 Ill2d 518, 526, 139 NE2d 767; 70 ALR2d 1199. See also Allstate Ins. Co. v. Keller, 17 Ill App2d 44, 50,149 NE2d 482, to the same effect.”

The court held that the filing of the judgment was sufficiently prompt after the time the insurance company became aware of its right to disclaim liability to comply with the rule, since less than two months had elapsed between the time the insurer learned of the breach and the time of filing the declaratory judgment suit. A dissent was filed in that case which considered that even treating the filing of the action as a formal disclaimer, it came too late to be effective.

In Country Hut. Ins. Co. v. Murray, 97 Ill App2d 61, 239 NE2d 498, the insurer had refused to defend a personal injury suit against the defendant on the ground that defendant was not covered as an insured within the relevant policy. The insurer argued that by refusing to defend the suit, and by filing its own declaratory judgment action which contested the existence of coverage, it had preserved its right to assert noncoverage. The court pointed out that it must review the content of the complaint, stating at page 71:

“. . . and, if taken at face value, it is found to allege a cause of action which the policy is designed to cover, the company is then compelled to defend its -insured, or, . . . seek a declaratory judgment as to its obligations and rights or defend under a reservation of rights.”

The court further stated, at page 73:

“In a case in which the policy is designed to cover the type of claim involved, wherein an insurer is presented with a claim that may or may not be covered by the policy, if the carrier refuses to provide its insured an unrestricted defense, yet desires to ultimately urge exclusionary coverage defenses, it must;
“(1) Secure a declaratory judgment of its rights and obligations, while defending its potential insured on a reservation of rights, or
“(2) Defend its potential insured on a reservation of rights and adjudicate its coverage in a supplemental suit. If it elects to defend under a reservation of rights, it must continue such defense until there is a final determination that the claim is not covered by the policy. If and when that becomes certain the insurer may turn back the defense.”

In Allstate Ins. Co. v. Keller, 17 Ill App2d 44, 51, 149 NE2d 482, the court pointed out that plaintiff’s reservation of rights did not come until almost a year and a half after it knew of the alleged breach, and that the “extended delay in informing defendant of its intention to deny liability clearly constituted a waiver of the breach.” In Krutsinger v. Illinois Cas. Co., 10 Ill2d 518, 526, 139 NE2d 767, the court stated: “When an insurer wishes to assert its nonliability under the policy, it must notify the insured without delay.”

In the case before us the letter in which Gibraltar made a reservation of rights was dated July 13, 1965. We point out that on March 19, 1964, Gibraltar’s attorneys had filed their appearance in the suit and continued in the suit from then on. Under the cases cited, the reservation of rights was filed too late and the extended delay in filing such a reservation constitutes a waiver of the breach. If we consider the declaratory judgment as a reservation of rights, it still cannot be said that there was “reasonable promptness” or that Gibraltar had informed Robinson “without delay” of its intention to assert nonliability.

In the additional abstract of record in the case it appears that on July 18, 1961, Exhibit A, attached to Gibraltar’s complaint for declaratory judgment, showed that the insurance policy of Kenneth Robinson was can-celled with notice to him on July 18, and that on August 3, 1961, a refund of $33 was made to Robinson from the insurance policy. That, together with the telephone call of Casati (the adjuster for Gibraltar) on July 13, 1961, advising that the company was considering the question of its liability to the defendant, makes it clear that Gibraltar was aware of its right to disclaim liability as early as July 13, 1961. However, no action whatsoever was taken by Gibraltar until July 13, 1965. Under the rule previously referred to, that was not a prompt disavowal of liability. The same definitely applies to the filing of a declaratory judgment on October 28,1966.

We have held that the declaratory judgment action could not have been brought because the statute of limitations had run. We realize that this is a matter of first impression in the Illinois courts. However, even if the five-year statute of limitations was not applicable, we refer to the case of Campbell v. Powers, 139 Ill 128, 28 NE 1062, cited with approval in People v. Thomas, 15 Ill2d 344, 348, 155 NE2d 16. In Campbell, the court said at page 135:

“It is insisted, with great earnestness, that the Superior Court having placed its refusal to grant leave to amend upon erroneous grounds, and not having considered whether its discretion should be exercised to permit the amendment, the decree must be reversed and the cause remanded, to the end that the chancellor may exercise such discretion in passing upon the granting of leave to amend, and that therefore the Appellate Court erred in exercising a discretion committed to the chancellor alone, and in refusing to reverse and remand. This is manifestly erroneous. The entire showing made to the chancellor is in the record, and if, for any reason, the discretion should not have been exercised or the leave should have been denied, the action of the Superior Court in refusing the leave was properly affirmed. It is of the judgment of the court appellant is permitted to complain, and not of the grounds or reasons upon which the court founded its decision.” [Emphasis supplied.]

In the case before us, even if the statute of limitations was not controlling, nevertheless the court’s ruling in dismissing the complaint was proper on the ground that Gibraltar waived whatever rights it might have had to dissociate itself with the insurance policy issued to Robinson by failing to promptly make a reservation of rights. In the complaint, no reference is made to a reservation of rights; therefore, the complaint did not state a justiciable cause of action. The judgment of the Circuit Court is affirmed.

LYONS, P. J., concurs.

BURKE, J.,

dissents:

The trial judge granted the motion to dismiss the amended complaint on the ground that the plaintiff (the insurer) was “out because of the statute of limitations.” On appeal the defendant (Administrator of the Estate of Veronica Varkalis, Deceased), argues for affirmance of the order of dismissal on the ground that the trial judge was right in ruling that the declaratory judgment complaint is barred by the five-year statute of limitations. The writer agrees with the position of the insurer that the action is not barred by the statute of limitations. A declaratory judgment action partakes of the nature of the litigation to which it pertains. The complaint asks the court to declare that the insurer is not obligated to pay any judgment that might be entered in favor of the administrator and against the insured, Kenneth Robinson. Any liability by the insurer to pay the administrator, who stands in the shoes of Robinson, arises from the insurance agreement between the insurer and the insured. Under all the pertinent decisions the declaratory judgment complaint is not barred by the ten-year or five-year limitation. All the terms of the contract, including the parties thereto, are clearly stated in the insurance policy. A cause of action on the insurance policy by the insured or someone standing in his shoes, (the administrator) against the insurer, could not arise until February 13, 1964, when the insurer was first notified of the pending lawsuit. The complaint was filed on October 28, 1966, well within the five-year, and of course, the ten-year limitation bar. The amended complaint averred ultimate facts entitling the insurer to a declaration that it was not obligated to defend the lawsuit or pay any part of a judgment which might be entered against Robinson. The administrator seeks a strange reverse application of the limitations act.

The opinion also relies strongly on a point not argued in the briefs by either party and concludes that the insurer waived its right to assert in a declaratory judgment action that it “owed no obligation liability to Robinson.” The appellee, (administrator) apparently has no faith in this position. He supports the order for the reason given by the trial judge — that the action is barred by the statute of limitations. The insurer did not waive its right to insist that the language of the policy absolved it from payment of any part of the judgment against Robinson. The insurer, on notification by the administrator of the pendency for two years of the action by the administrator against Robinson caused attorneys selected by the insurer to file their appearance and answer for Robinson in the action by the administrator against Robinson. When the case came on for trial these attorneys moved to withdraw as counsel for Robinson. The judge granted this request and appointed an attorney to represent Robinson who was then in the penitentiary. The attorney so appointed, represented Robinson in the trial of the lawsuit by the administrator against Robinson which resulted in a finding and judgment (after a remittitur of $4,500) in the amount of $25,000 against Robinson. The record does not show any objection by the administrator or anyone else to the substitution. The validity of the order substituting attorneys has not been challenged to this day. The record does not show any breach of the insurance contract by the insurer. The attorney appointed for Robinson faithfully performed his duty as Robinson’s attorney. This record presents no evidence on which to base an estoppel against the insurer to assert its defense under the policy.

The administrator must recover on the insurance policy on the basis of the coverage afforded to Robinson and is bound by all the provisions, one of which stipulates that the policy does not apply to bodily injuries caused intentionally by or at the direction of the insured. It is conceded that the insured threw Veronica Varkalis out of his car and then deliberately and maliciously killed her by running over her with the car. For this he was indicted for murder, pleaded guilty, was convicted and sentenced to the penitentiary where he is serving the sentence. Under these facts the insurance company has no obligation to pay the administrator anything.

For these reasons the order should be reversed and the cause remanded with directions to enter a judgment in favor of the insurer and against the administrator declaring that the insurer has no obligation to pay anything to the administrator of the Estate of Veronica Varkalis, Deceased.


author: MR. JUSTICE STAMOS

text:
    James McLaughlin, Plaintiff-Appellant, v. Albert Tilendis, Defendant-Appellee. John Steele, Plaintiff-Appellant, v. Albert Tilendis, Defendant-Appellee.
    Gen. Nos. 52,553, 52,554. (Consolidated.)
    First District, Fourth Division.
    September 24, 1969.
    Rehearing denied October 24, 1969.

      Ligtenberg, Goebel & De Jong, of Chicago (John Ligtenberg, Andrew J. Leahy, and Mary Lee Cullen Leahy, of counsel), for appellants.
    Ancel, Stonesifer, Glink & Levin, Summerfield & Summerfield, of Chicago (Louis Ancel and Ronald M. Glink, of counsel), for appellee.
   MR. JUSTICE STAMOS

delivered the opinion of the court.

Plaintiffs, John Steele and James McLaughlin, are schoolteachers, and each brought a separate two-count complaint for slander and malicious interference with contract against defendant, Albert Tilendis, Superintendent of Schools of School District No. 149. On defendant’s motion the trial court dismissed the actions stating defendant enjoyed an absolute privilege in his official capacity. Plaintiffs’ actions have been consolidated on appeal.

The issue in both actions is whether communications made by a school superintendent to a board of education regarding the qualifications of teachers are absolutely-privileged.

Plaintiff McLaughlin alleged he was a holder of a regular teaching certificate, and pursuant to an agreement with the Board of Education, did teach as a regular teacher for the entire 1964-65 school year and continued to teach pursuant to a subsequent agreement for the 1965-66 school year.

Plaintiff Steele alleged a similar agreement and that he was a holder of a regular teaching certificate, except that he started teaching in September 1965, a year later than plaintiff McLaughlin. Plaintiffs were probationary and not tenure teachers.

Both complaints alleged: plaintiffs enjoyed reputations as persons of honesty, integrity and teachers of ability; defendant had the duty to make recommendations and accurately represent to the Board of Education the effectiveness and capabilities of its teachers; defendant did not observe plaintiffs’ teaching but observation was conducted on a regular basis by superiors; plaintiffs discharged their duties with efficiency and integrity and received the approval and commendations of the supervisors assigned to observe plaintiffs; both plaintiffs engaged in the organization of a local union of school teachers; defendant opposed the formation of said union, and seeking to prevent and discourage this union activity, embarked upon a course of action designed to defame and discredit plaintiffs, not because of any deficiency in their teaching, but solely because of plaintiffs’ union organizing activity. As to plaintiff McLaughlin, it was further alleged that defendant maliciously and knowing them to be false and without basis, made the following accusations against plaintiff to the Board of Education: that plaintiff’s teaching was poor, that plaintiff had done poorly in certain courses at Chicago Teacher’s College during the fall of 1964, that plaintiff left his room unattended and that in general lacked ability as a teacher. As to plaintiff Steele, the allegations were the same, except for the matters pertaining to Chicago Teacher’s College.

Plaintiffs alleged that the defendant’s false statements, relied upon by the Board of Education to refuse plaintiffs’ continued employment as teachers, caused plaintiffs to be injured, their professional reputation damaged, their employment resumé marred, their reputations in the school district community blemished; their rights, guaranteed under Illinois Teacher Tenure Law, have been disregarded and their abilities to participate in the affairs of their local union have been limited. Plaintiffs each asked damages in the amount of $250,000.

The second count of their complaints realleged the foregoing but added that defendant intentionally made the false representations to the Board of Education so that the Board would refuse to continue to employ plaintiffs; that defendant manipulated the Business Meeting Agenda of the Board for March 23, 1966, and defendant made the foregoing representations in order to have the Board adopt a resolution wherein the minutes of the meeting reflected that the Board adopt defendant’s recommendations not to retain plaintiffs for the ensuing school year. Plaintiffs also allege damages of $250,000 under this count.

OPINION

Defendant contends the remarks are absolutely privileged to further the public good and insure that the operation of government will not be impeded by irate employees and vexatious litigation. Defendant argues that the remarks complained of were allegedly made at a regularly scheduled meeting of the Board of Education and one of the items on the Board’s agenda was defendant’s recommendations as to the employment of teachers for the next school year; and that the alleged remarks concerned the qualifications and teaching abilities of plaintiffs, and thus, defendant’s remarks related directly to the statutory action required of the defendant and the Board. Defendant further contends that the remarks were not made to, or heard by anyone other than the Board, and Ill Rev Stats, c 102 § 42 (1967), authorizes closed sessions of the School Board, “to consider information regarding appointment, employment or dismissal of an employee.”

Plaintiffs contend that the Illinois Constitution, the Illinois Tort Immunity Act and Elinois case law support the proposition that public officers and employees are liable for intentional torts, including defamation.

In Cook v. East Shore Newspapers, Inc., 327 Ill App 559, 64 NE2d 751 (1945) the court said at pages 577-78:

“Privileged communications are divided into two general classes: (1) those absolutely privileged, and (2) those only conditionally privileged. An absolutely privileged communication is one in respect of which by reason of the occasion on which or the matter in reference to which it is made no remedy can be had in a civil action. This class is narrow and is practically limited to legislative and judicial proceedings and other acts of State, including communications made in the discharge of a duty under express authority of law, or to heads of the executive departments of the State, and matters involving military affairs. A publication which is conditionally or qualifiedly privileged is one made in good faith on any subject matter in which the person publishing has an interest, or in reference to which he has a duty if made to a person having a corresponding interest or duty, even though it contains matter which without this privilege would be actionable. The essential elements of the conditionally privileged communication are good faith and interest to be upheld, a statement limited in its scope to this purpose, a proper occasion and published in a proper manner and to proper parties. Such privileged publications lose their character as such on proof of actual malice.”

In Donner v. Francis, 255 Ill App 409 (1930), a laboratory technician in a Veteran’s Hospital sued his superior officers for libel and slander, complaining that his superiors had maliciously conspired and knowingly caused false charges to be filed against him. On review, the dismissal of the plaintiff’s complaint was affirmed. The alleged false charges complained of by the plaintiff were reports made by defendants pursuant to their duties regarding qualifications and competency of employees.

The court said at pages 412-13:

“All communications, either verbal or written, passing between public officials pertaining to their duties and in the conduct of public business are of necessity absolutely privileged and such matters cannot be made the basis of recovery in a suit at law.” (Citing cases.)

the court continued:

“The acts complained of were done by the defendants acting in an official capacity, in what may be called a quasi-judicial capacity. The duty to act was imposed upon them by law and they should not be subjected to vexatious litigation because of such acts; otherwise official independence would be entirely swept away.”

In Larson v. Doner, 32 Ill App2d 471, 178 NE2d 399 (1961), a city clerk claimed that the mayor libeled her by presenting a resolution at the regular meeting of the city council, wherein it was moved that the city clerk be suspended from office for malfeasance and negligence until an audit was completed and reported. The trial court granted defendant’s motion for summary judgment, and this was sustained on appeal. The court on review quoted extensively from Doner, supra, and held that the resolution in question was a communication pertaining to the duties of the members of the council in the proper conduct of their official business, that the matters contained in the resolution were absolutely privileged, and therefore, that the trial court properly entered summary judgment in favor of defendants.

In Haskell v. Perkins, 165 Ill App 144 (1911), defendant Perkins, in his official capacity as architect of the Chicago Board of Education, filed charges against plaintiff who was a superintendent of construction within the department that defendant headed. The lower court’s directed verdict for defendant was affirmed on appeal. The court said at page 150:

“It is well settled that all communications either verbal or written passing between public officials pertaining to their duties, and in the conduct of the public business, are of necessity absolutely privileged.”

Defendant Perkins as plaintiff’s superior, had filed a statement of charges against plaintiff with the Building and Grounds Committee of the Chicago Board of Education. Plaintiff was accused of incompetency, insubordination and negligence in the performance of his duties. As a result plaintiff was discharged and commenced the lawsuit alleging that the statement of charges filed by defendant was knowingly false and filed with the malicious motive to have plaintiff discharged.

Plaintiffs rely strongly on dictum in Judge v. Rockford Memorial Hospital, 17 Ill App2d 365, 378, 150 NE2d 202 (1958) , but that case involved a private employer which, of course, presents a very different situation.

After a careful consideration of the issue involved, the cases cited above and the statutory provisions, we are of the opinion that the statements made by the defendant to the Board of Education concerning plaintiffs were communications within the duty of the defendant as Superintendent of Schools of School District No. 149, and were absolutely privileged. Therefore, the trial court properly dismissed the complaint.

Plaintiffs argue that Doner is the most persuasive case in favor of an absolute privilege, but that it is based upon a policy consideration which has been thoroughly discredited by Molitor v. Kaneland Community Unit Dist, 18 Ill2d 11,163 NE2d 89 (1959), and the Local Government and Governmental Employees Tort Immunity Act, Ill Rev Stats, c 85, §§ 1-101 to 10-101 (1967). We do not agree. Molitor abolished the doctrine of governmental immunity from tort liability as applied to school districts. The consensus of legal opinion since Molitor has been that it completely destroyed the doctrine of governmental tort immunity. 54 Northwestern UL Rev 588 (1959) ; 55 Ill BJ 29 (1966); Ill L Forum 981 (1966). Neither the holding nor rationale of Molitor leads us to believe that the defense of absolute privilege in defamation actions was or should be destroyed. Neither will we erode the defense of absolute privilege as it has heretofore been established in Illinois by finding that it does not have application to the factual situation before the court.

Plaintiff also argues that if Molitor did not abolish the defense of absolute privilege, the defense was expressly destroyed by the Local Government and Governmental Employees Tort Immunity Act, Ill Rev Stats, c 85, § 2-208 (1967), which 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.”

All duties of the superintendent are set forth in Ill Rev Stats, c 122, § 10-21.4 (1967). The defendant’s duty is merely to make recommendations to the Board concerning the selection of teachers, he is not charged nor is it within the scope of his employment to institute or prosecute “any judicial or administrative proceeding.” The Board may act upon defendant’s recommendation and institute or prosecute a judicial or administrative proceeding, but what weight is to be given to defendant’s recommendation is within the sound discretion of the Board. Since the defendant does not have that power this section of the Act has no application to the case at bar.

In the light of the Hlinois law on this subject, we are not persuaded by the cases plaintiffs cite from other jurisdictions.

For the foregoing reasons the order of the trial court dismissing plaintiffs’ complaint is affirmed.

Judgment affirmed.

DRUCKER, P. J. and ENGLISH, J., concur.

       “. . . In addition to the administrative duties, the superintendent shall make recommendations to the board concerning . . . the selection of teachers. . . .”
      Ill Rev Stats, c 122, § 10-21.4 (1967).

       “To dismiss a teacher for incompetency, cruelty, negligence, immorality or other sufficient cause and to dismiss any teacher, whenever, in its opinion, he is not qualified to teach, or whenever, in its opinion, the interests of the schools require it, subject, however, to the provisions of Sections 24-10 to 24-15, inclusive.”
      Ill Rev Stats, c 122, § 10-22.4 (1967).


author: MR. PRESIDING JUSTICE DRUCKER

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Del Gullickson, Defendant-Appellant.
    Gen. No. 52,622.
    First District, Fourth Division.
    September 24, 1969.
    Rehearing denied October 24, 1969.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Harold A. Cowen, Norman W. Fishman, 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 and Michael D. Stevenson, Assistant State’s Attorneys, of counsel), for appellee.
   MR. PRESIDING JUSTICE DRUCKER

delivered the opinion of the court.

Defendant was tried before a jury and found guilty of murder. Judgment was entered and defendant was sentenced to the Illinois State Penitentiary for a term of not less than fourteen nor more than twenty years. Defendant raises two points on appeal: (1) he was not proven guilty beyond a reasonable doubt; and (2) he was prejudiced by the prosecutor’s improper concluding argument.

EVIDENCE

Testimony of Norma Sargent, called by the State:

She resides with her husband, Edward, at 4929 Winthrop. On September 24, 1966, she was living with her husband at 4356 North Kenmore. She knew both defendant and the decedent.

On September 24, 1966, defendant was living with decedent upstairs of her. At about 9:30 that morning decedent came down to her apartment and left her keys for defendant because she was leaving him.

She saw decedent again at about 10:30 or 11:00 in the morning walking down Wilson and Broadway with her little girl, Denice. She helped decedent with her shopping bags. Nothing was said.

At about 3:30 that afternoon she saw defendant when he came to her apartment. Defendant was angry because decedent had left. He said that he was going to “blow her m--f-head off.” He also said that if he could not get decedent he was going to get the little girl.

She later saw decedent standing outside of Hillman’s with Rita Braddock. Decedent asked her for a ride. Defendant then came down the street, got in the back seat of her car with decedent and asked decedent to go with him, but she did not answer. Defendant then left taking Denice with him. That was the last time she saw decedent alive.

About 11:30 that night defendant came to her apartment to speak to her husband. He asked for the gun, and it was given to him. Defendant said he had a sale for it. Her husband told him not to do anything foolish, and defendant said that he would not.

Testimony of Edward Sargent, called by the State:

On September 24, 1966, defendant came to his apartment at about 3:30 in the afternoon. He said that he was going to shoot decedent’s head off. That is all he said.

At about 4:30 in the afternoon he saw decedent and defendant in the car with Rita Braddock. Defendant wanted to take decedent home, but she remained in the car. He left taking the little girl with him.

Defendant came to his apartment at about 11:30 that evening, asked for the gun and said that he had a sale for it. He gave defendant the unloaded gun and also gave him four bullets in a separate package. He told defendant not to do anything foolish.

Testimony of John Marrón, called by the State:

He is an officer in the Chicago Police Department. On September 24,1966, he was patrolling in a squad car with Officer Thomas O’Connell in the vicinity of Lawrence Avenue and Broadway.

At about 2:45 a. m. on September 25, 1966, he was in the 1100 block on Lawrence when he saw defendant and decedent pinned against one of the supports of the “el” structure. Defendant’s back was toward him. He observed defendant punching at the woman with his right hand, and brought the car to a halt about twenty feet to the rear of the altercation and approached the people. He saw defendant’s right arm coming back. He could not see defendant’s hand, he could only see the back portion of his arm. Defendant had nothing in his left hand. The girl appeared to be crying; he could not see what she was doing with her hands.

He was an arm’s length from defendant when he heard a shot fired. He then hit defendant with his nightstick, and defendant fell. He then saw the woman who had not yet fallen; she was doubled up. When the man fell, he could see a gun in his hand. He did not see the gun when the shot was fired.

Testimony of Jerome O’Donnell, called by the State:

He is an officer in the Chicago Police Department. On September 25, 1966, he was patrolling in a squad car with Officer Robert Buckley in the vicinity of 1100 on Lawrence Avenue. At approximately 2:45 a. m. he noticed a couple standing against a pillar under the Lawrence Avenue elevated. It appeared as though they were having an argument. The woman was up against the pillar. He saw the back part of the man’s elbow moving backward and forward. He and his partner got out of their car and approached the couple. He saw Officer Marrón standing by the couple; he had subdued the man who was falling. The gun was pointing upward, and the man started to cock it as he fell. He did not at any time see the gun in the woman’s hands. He does not remember what the woman’s right hand was doing, and he could not see her left hand at all. He could not see the man’s right hand; his left hand was about her waist. When he got out of the car, defendant was looking toward him.

Testimony of Robert Buckley, called by the State:

He is an officer on the Chicago Police Department. On September 25, 1966, he was patrolling in a squad car with Officer O’Donnell in the vicinity of Lawrence and Broadway.

As he was travelling west on the 1100 block of Lawrence he noticed a woman leaning against a pillar with a man, the defendant, who appeared to be kissing her. As he got closer she turned towards him and he could see tears in her eyes. At that time defendant also turned towards him and saw him. Defendant reached with his right hand and moved his coat back. He said to his partner, “He may have a gun. Let’s pull over.” They were about ten feet away at that time. They pulled over between ten and fifteen feet past the pillar. As he approached he could see neither defendant nor decedent. He heard a shot and saw the defendant fall. In his right hand defendant had a cocked revolver. As defendant fell Officer O’Donnell kicked the gun from defendant’s hand.

He did not see the gun in the woman’s hand; but he could not see her complete body because defendant was leaning right up against her. Defendant was pulling his coat back to his right side.

He thinks defendant’s left hand was around the woman’s waist, but he is not sure. He could not see defendant’s right hand. He could see defendant’s right elbow and he saw the coat move. In his opinion, defendant was reaching for something.

Testimony of Gerald Norris, called by the defense:

On September 24, 1966, he lived in Chicago at 1427 West Balmoral. On that date defendant brought his little girl to his house to keep. Defendant stayed there with the girl until about 10:15, they had both fallen asleep. Defendant had a reputation for being peaceful and law-abiding. Defendant said that he would pick up his little girl the next day.

Testimony of Del R. Gullickson, defendant:

On September 24,1966, he was living with his “common-law wife,” Mary Lou Jackson, the decedent, and his two-year-old daughter, Denice. He had lived with decedent previously in Minneapolis. He knows Norma and Ed Sargent. Norma spent a good deal of time with decedent; they would drink together. One time when decedent left him, Norma would not tell him where she had gone.

He returned from work at about 3:30 p. m. on September 24, 1966, to find his door locked. He then went looking for decedent and his daughter. He returned to the apartment building just as the Sargents drove up. Norma said that she did not know where decedent was but that she had his house keys which she gave to him.

He then went driving around some more looking for decedent and his daughter. As he proceeded up Broadway he saw decedent getting into the Sargents’ car. He double parked alongside of them, got out of his car and asked decedent to come home with him and take care of their daughter. Decedent did not respond. He then said, “Well, I’m taking my daughter with me. The way you people carry on up there and drink and have parties, she’s going to end up being killed.” He said that he was going to take his daughter back to Minnesota.

He then went to Gerald Norris’ house to leave his daughter. He was going to go back to his house to get his clothes, but his daughter did not want him to leave, so he gave her some milk and lay down with her. He and his daughter fell asleep, and he awoke at 10:00 or 10:30.

He intended to go back to Minnesota but he did not have too much money and the car needed a tire. He had a beer and then proceeded to his apartment where he packed his belongings and put them in the car. He then went to the Sargents’ apartment to get his gun with the intent of selling it. He took the gun and put it in the glove compartment of the car. He then drove to places where he thought he might find decedent. He intended to try to persuade her to go to Minnesota with him.

He found decedent at the Clifton Tap, a tavern right off Lawrence Avenue near Broadway. He went in and went up to her, and she started to scream and holler. He asked why she left; and she replied it was because he had taken her sister out one time. He then asked her to come to Minnesota and help him care for their daughter.

Decedent left the tavern with him and they walked to his car. They argued about his having taken her sister out; he denied it, claiming that Norma Sargent had made it up. Her hair was a mess and she started to fix it. She took some bobby pins out and set them on the glove compartment door. She saw the gun in the glove compartment.

He asked her if she wanted to go, and she suggested that they get some more beer. He did not want to, but when she got angry again, he agreed. They got out of the car and she began walking ahead of him towards Lawrence Avenue. He caught up with her under the “el” tracks. As he approached he said, “Wait up.” He heard her swear. As he got closer he heard her say, “You son of a bitch. I put you in the hospital once before. This time I am going to kill you.” She wheeled around to face him, and he saw that she had his gun in her hand. He grabbed her by the wrist and pushed her against the “el” pillar. He then reached down and tried to twist the gun out of her hand. She was hanging onto the gun, he was off balance; he pulled back on it as she was also pulling and it went off.

As he was struggling he saw the police cars arrive and he saw one officer get out of the driver’s side. He got scared from the shot, and felt very weak. He fainted; he believes that he was struck in the back of the neck.

At no time did he say that he was going to kill decedent or blow her head off. Decedent once cut him on the face so badly that he required hospital treatment.

OPINION

Defendant contends that he was not proven guilty beyond a reasonable doubt. He first urges that the prosecution did not establish a motive for the killing. Where a deliberate criminal act is established, there is no necessity for proving motive. People v. Irvin, 104 Ill App2d 316, 325, 244 NE2d 351; People v. Hobbs, 35 Ill2d 263, 220 NE2d 469. Since the jury could find from the evidence that defendant deliberately committed the murder, proof of motive is immaterial. Nevertheless, we point out that there was evidence of threats by defendant against decedent.

Defendant also contends that lack of sufficient proof of his guilt stems from the absence of testimony that he was holding the gun when the shot was fired. According to defendant’s account, decedent held the gun on him and it went off during a struggle over it. He testified that he grabbed the gun and attempted to twist it out of decedent’s grasp; he said that when they pulled in opposite directions, the gun went off. At no time did he testify that he successfully wrested the gun from decedent’s control. The jury could find that defendant must have had control of the gun at some time before the discharge because the police saw the gun in defendant’s hand and he had cocked it instantaneously after the shot. Further the police testified that defendant was facing decedent and was moving his right arm back and forth. This belies defendant’s testimony that he was holding decedent’s right hand, allegedly her gun hand, in his right hand.

Defendant next urges that the testimony of Norma and Edward Sargent that defendant threatened to kill her must be disbelieved. This contention is based on the fact that Norma testified that defendant threatened to kill both his wife and their daughter, whereas Edward only recalled defendant’s threat to kill his wife. However, both witnesses testified that defendant did threaten to blow his wife’s head off; and this is the relevant and crucial testimony. The discrepancy concerning a threat towards defendant’s daughter is of minor importance.

Defendant argues that decedent had been drinking heavily; that when intoxicated she was belligerent as evidenced by a prior cutting of defendant’s face; that therefore his account of the shooting is credible and raises a reasonable doubt of his guilt. It was for the jurors to accept the testimony they believed and reject that which they disbelieved. People v. Wilson, 1 Ill2d 178, 188, 155 NE2d 250. We will not substitute our judgment for that of the jury in merely weighing the credibility of witnesses where the testimony is conflicting. People v. Woodruff, 9 Ill2d 429, 434,137 NE2d 809.

Nor can we agree with defendant’s contention that the evidence supports a hypothesis of innocence and that it was therefore the duty of the jury to accept defendant’s explanation of the shooting. His defense of accidental shooting must stand or fall on the weight and credibility of his own testimony. People v. Neal, 98 Ill App2d 454, 240 NE2d 784. The jury was warranted in finding that defendant did not present a reasonable or credible defense.

Defendant claims that the prosecutor misrepresented evidence to the jury thereby depriving defendant of a fair trial. In summation the prosecutor implied that defendant maneuvered the decedent under the viaduct and that the path there was not the direct route to the liquor store. Defendant argues that this conclusion is not supported by the evidence and therefore was improper. Defendant also argues that the prosecutor used inflammatory language in summation. We note however, that no objections to these statements were made at trial and these issues are waived. People v. Cionte, 102 Ill App2d 1, 11, 243 NE2d 407; People v. Conrad, 81 Ill App2d 34, 225 NE2d 713.

Defendant also contends that he was prejudiced by the prosecutor’s statement, “In my opinion, Del Gullickson deliberately and with premeditation took the life of Mary Lou Jackson.” It is well established that it is proper for a prosecutor to argue or express his opinion of the guilt of the accused where it is apparent that such opinion is based on the evidence. People v. Jackson, 35 Ill2d 162, 171, 220 NE2d 229. We are convinced that the prosecutor’s statement was intended and was understood by the jury to be his opinion based upon the evidence since he prefaced it with the following:

. . . [W]hat I am going to say and what my remarks will include and what Mr. Wolfson (defense attorney) had previously said ... is not to be construed as evidence. As you well know or as you have been told, what we say are our opinions, the way we look at the facts as they were presented to you. But I suggest that the State’s remarks are a logical and reasonable interpretation of the facts as told to you.

In this statement the prosecutor clearly indicated that the whole of his remarks were based on the evidence. We therefore find that there was nothing improper in the prosecutor’s challenged statement.

Reviewing the entire record of proceedings we hold that the defendant received a fair trial and was proven guilty of murder beyond a reasonable doubt. The judgment of the trial court is therefore affirmed.

Affirmed.

ENGLISH and McNAMARA, JJ., concur.