author: MORAN, P. J. MILLS, J.,

text:
    State Farm Mutual Automobile Insurance Company, Plaintiff-Appellee, v. Paulette Short, Donald McLean, as Administrator of the Estate of Robert Moss, and Courtie La Franklin (Lee) Moss, Defendants, Paulette Short, Appellant.
    Gen. No. 68-123.
    Fifth District.
    June 22,1970.

      Mills, J., dissenting.
    Richard A. Cagle, of Alton, for appellant.
    James L. Reed, Reed, Armstrong and Gorman, of Edwardsville, for appellee.
   MORAN, P. J.

Paulette Short appeals from a summary judgment entered by the trial court of Madison County in favor of the plaintiff, State Farm Mutual Automobile Insurance Company.

Courtie La Franklin (Lee) Moss, hereinafter referred to as Lee Moss, the named insured in plaintiff’s liability insurance policy, was the father of Robert Moss who was driving a car owned by his brother, Loren, when it collided with a car driven by the defendant, Paulette Short. Robert Moss was killed in the accident and Paulette Short was injured.

Paulette Short filed suit against the Administrator of Robert’s estate and State Farm Mutual Automobile Insurance Company then filed suit against Paulette Short, Lee Moss and the Administrator of the Estate of Robert Moss, seeking a judicial determination that its insurance policy issued to Lee Moss did not furnish coverage to Robert Moss on the date of the accident.

The insuring agreement with respect to non-owned automobiles provided that liability coverage was afforded to any person using the non-owned automobile (which in the case at bar was Robert Moss) if said person was a “resident of the same household” as the named insured, and “provided such use ... is with the permission of the owner or person having lawful possession of such automobile.” Plaintiff’s motion for summary judgment claimed that there was no genuine issue of fact as to whether or not Robert Moss was a resident of the same household as that of his father, Lee Moss, at and before the time of the accident in question and even if he were a resident of the same household, he was driving the car involved in the accident without the permission of the owner.

Plaintiff attached to its motion excerpts from the depositions of Lee Moss, Ruth Moss, his wife and the mother of Robert, and Catherine Arnold, a sister of Robert, all of whom testified that Robert Moss was not a resident of the household of Lee Moss at and prior to the accident, and also excerpts from the depositions of Loren Moss and Diana Moss, his wife, who testified that Robert Moss had never driven the car before the night of the accident in question to the knowledge or with the permission of either of them and was driving the car on the night of the accident without their permission.

The defendant, Paulette Short, filed several affidavits in opposition to plaintiff’s motion for summary judgment for the purpose of showing that Robert Moss was a resident of the household of Lee Moss at and prior to the time of the accident and that he was driving Loren’s car with his express or implied permission on the night of the fatal accident.

The trial court in granting plaintiff’s motion held that the eounteraffidavits filed by defendant, Paulette Short, were worthless in that they failed to comply with Supreme Court Rule 191 because they consisted of conclusions, hearsay and inadmissible inferences. Supreme Court Rule 191 provides:

(a) Requirements. Affidavits in support of and in opposition to a motion for summary judgment and affidavits under section 48 of the Civil Practice Act shall be made on the personal knowledge of the affiants; shall set forth with particularity the facts upon which the claim, counterclaim, or defense is based; shall have attached thereto sworn or certified copies of all papers upon which the affiant relies ; shall not consist of conclusions but of facts admissible in evidence; and shall affirmatively show that the affiant, if sworn as a witness, can testify competently thereto. If all the facts to be shown are not within the personal knowledge of one person, two or more affidavits shall be used.

We first consider whether there was a genuine issue of fact as to whether or not Robert Moss was a resident of the same household as that of his father, Lee Moss at and before the time of the accident in question.

One of the affidavits filed by defendant to prove Robert Moss resided in the household of Lee Moss was made by Kenneth and Queenie Herron which reads as follows:

“Our names are Kenneth and Queenie Herron, husband and wife, Bethalto, Illinois.
“We are adults and until May 23, 1966 we lived on First Street, Forrest Homes Addition to Cottage Hills, Illinois. When at that address, we lived on the next street from Lee Moss, our house was about one block north and one-half block west of Lee Moss’ house.
“I, Kenneth Herron, worked under Lee Moss when he was foreman of a labor crew on the Illinois State Highway Department. We both knew the family well.
“We moved out to our present address on May 23, 1966. The reason we know the date is because it is the birthday of our son, Charles Edward Herron.
“Robert Moss was not married and lived at home with his parents, Mr. and Mrs. Lee Moss, on Lee Avenue, Cottage Hills, Illinois. He was in service and was away from home from time to time but we never knew of him living any place besides with his parents when he was in this area.
“We knew Robert off and on for several years and saw him coming and going from Lee’s house on several occasions the last two or three months that we lived on First Street in Cottage Hills.
“The facts stated herein are to our personal knowledge and we can testify competently thereto if called as witnesses.”

Prior to the ruling on the motion for summary judgment, plaintiff filed a motion to strike from this affidavit the following language: “lived at home with his parents, Mr. and Mrs. Lee Moss, on Lee Avenue, Cottage Hills, Illinois,” and also the words, “we never knew of him living any place besides with Ms parents when he was in the area.” Plaintiff’s motion was granted by the trial court on the basis that the Herron affidavit conflicted with Rule 191 in that it contained conclusions without supporting facts. Other affidavits similar to the Herron affidavits were filed by defendant, Paulette Short, and like rulings on them were made by the trial court. In Rost v. Noble & Co., 316 Ill 357, at 364, 147 NE 258 our Supreme Court said:

“The right of a witness to express his opinion upon a non-technical subject, based upon facts which he has observed, when it is impossible by word of mouth or gesture to reproduce the data before the jury so that they may as intelligently as the witness draw an inference therefrom upon the subject, has been sustained in many cases.”

Generally, the nonexpert witness may not give his opinions or conclusions, but must confine his testimony to a report of facts. However, it is well-established that when it is not practicable to place before the jury all the primary facts in such a way as to enable the jury to form an intelligent conclusion, witnesses who have had means of personal observation may state their opinions and conclusions, formed from such facts and circumstances as come under their observation. The ground upon which such opinions are held to be admissible is the impossibility or difficulty of reproducing the data observed by the witnesses. When the subject matter relates to subtle or complex facts perceived by the senses, to a series of instances passing under the observation of witnesses, or to a great variety of circumstances and a combination of appearances which are too indefinite and general in their nature to be susceptible of direct proof, or which, by reason of the limitations of language, cannot be adequately described and presented to the jury with the same force and clearness as they appeared to the witness, he may state his impressions and opinions based upon the facts and circumstances observed by him or the effect which they produced upon his mind. 31 Am Jur2d 508-509. So where a person lives close to another family and where he has been intimately acquainted with that family for a long period of time, it seems illogical to hold that he cannot say that he knows that one of the children of the family resided with the father and mother.

With reference to subjects on which opinions are usually formed without analyzing the reason for them or noticing their elements and where the witness is qualified to express such an opinion by reason of his special knowledge or familiarity with the matter in question, he will be permitted to give his conclusion. This reasoning would apply in a situation where a friend and neighbor of a person is asked where another friend and neighbor resides. He would know that his friend lives across the street because he has special knowledge on this subject, but would not have paid particular attention to the various elements in his relationship with his neighbor which enabled him to form an opinion concerning his residence.

Eule 211 in Card on Evidence reads:

“If the witness is not testifying as an expert, his testimony in the form of opinion or inference is admissible only where the facts upon which the opinion or inference is based cannot be ascertained and made intelligible to the jury, or where the opinion is of a condition which cannot be reproduced by description.”

In commenting, Gard states that the rule is at best only a guide and that the rule in practice should be most flexible. He gives the following illustration:

“Suppose, for instance, that the witness says that he saw John Jones on the street. No court would reject his testimony on the ground that it is opinion, but, of course, it is just that. To require a minute description of the real John Jones and then to require the witness to describe the man whom he saw in order that the jury could form the opinion as to whether the man was John Jones or not, would be complete nonsense. And so it is with many of the objections to opinion testimony as experience will demonstrate.”

Wigmore’s treatise on evidence contains an exhaustive discussion of the history, theory and application of this rule. He calls for its abolishment and gives the following reference:

“In 1937-38 this subject was one of twenty placed on the program of the American Bar Association’s Committee on the Improvement of the Law of Evidence; the Committee’s personnel consisted of five members (three being judges), some sixty-five advisory members (one from each State and Territory, and fifteen at large, these being chiefly professors of law of Evidence), thus providing a veritable cross-section of professional opinion. The relevant part of their Report is as follows:
“The Opinion Rule is the rule prohibiting a qualified lay witness from stating the inference drawn by him from something he has seen (e. g., whether a sidewalk hole was dangerous, a signal-light could have been observed, etc.), and also prohibits even an expert witness from stating his opinion in certain cases (e. g. as to cause, direction, possession, etc., etc.)
“This rule is probably the most frequently invoked rule in the whole list of Evidence rules. Many persons have come to the belief that its technicalities as used today are an obstruction to the investigation of facts, and that its benefit if any is negligible. Judge Learned Hand has publicly said: ‘No rule is subject to greater abuse. It is frequently an obstacle to any intelligible account of what happens. ... I know of none more baffling to a witness. . . . Whatever its logical justification, it is the most annoying rule in its application that I know.’ U. S. v. Cotter, 1932, 60 F2d 689; Lectures on Legal Topics, NY 1926, p 97). In 1934 the New York Commission on the Administration of Justice recommended the rule’s abandonment in the following terms: ‘It is proposed that ordinary witnesses may state their conclusions with respect to ordinary matters subject to explanation, thus permitting a witness to state his observation in a natural and non-technical manner.’
“We recommend that the measure proposed by the New York Commission be enacted. (Vote of the Committee: In favor, 43; opposed, 6.)” Wigmore on Evidence, Vol VII, Par 1929, pp 26-29.

Furthermore, residence is primarily a question of intent and summary judgment is particularly inappropriate where the inferences which the parties seek to have drawn deal with questions of motive, intent and subjective feelings and reactions. A judge may not, on a motion for summary judgment, draw fact inferences. Such inferences may be drawn only on a trial. Cross v. United States, 336 F2d 431, 433; Empire Electronics Co. v. United States, 311 F2d 175,180.

In our opinion, the trial court erred in striking the language in question from the Herron affidavit and in striking similar language from other like affidavits filed by the defendant.

We next consider whether there was a genuine issue of fact as to whether or not Robert Moss was driving the car in question with the express or implied permission of the owner at the time of the fatal accident.

Defendant also secured affidavits from several witnesses, some of whom averred that they heard Loren Moss say that his brother was driving the car with his permission on the night of the fatal accident. Counsel for the plaintiff contended in the trial court and contends in this court that their statements are incompetent as admissions because Loren is not a party to this litigation and that they are inadmissible as hearsay. Assuming the correctness of plaintiff’s contention the affidavits were admissible for impeachment purposes.

Since it is admitted that Loren Moss was the owner of the car, it is presumed Robert was the employee or agent of Loren operating in the scope and authority of his employment or agency. See Civil IPI Instruction 50.07; Paulsen v. Cochfield, 278 Ill App 596; Horst v. Morand Brothers Beverage Co., 96 Ill App2d 68, 237 NE 2d 732; McElroy v. Force, 38 Ill2d 528, 232 NE2d 708. This presumption is overcome by Loren’s deposition in which he testified that Robert did not have his permission to drive the car on the night in question or at any other time. McElroy v. Force, supra. However, Loren’s deposition testimony is met by the affidavits of several people who swore that Loren told them that he had given Robert permission to drive the car. Clearly these affidavits are admissible to impeach Loren’s testimony and the question of Loren’s credibility is raised. Under these circumstances summary judgment is inappropriate. Cross v. United States, supra, Arnstein v. Porter, 154 F2d 464. Courts cannot overestimate the importance of having the witness examined and cross-examined before the court and jury.

There was also an affidavit that both Loren and Robert drove the car “about the same amount,” and purported admissions by Lee Moss that Robert resided in his home at and before the time of the accident.

In Harp v. Gulf, Mobile & Ohio Railroad Company, 66 Ill App2d 33, 213 NE2d 632, this court said:

“The purpose of summary judgment proceedings is to determine whether there is any genuine triable issue of fact which must be passed upon. Gribben v. Interstate Motor Freight System Co., 18 Ill App2d 96, 151 NE2d 443. If the pleadings, discovery depositions and exhibits, present a genuine issue as to any material fact, summary judgment should not be granted. Halloran v. Belt Ry. Co. of Chicago, 25 Ill App2d 114, 166 NE2d 98. The right of the moving party to summary judgment must be free from doubt. Miller v. Owens-Illinois Glass Co., 48 Ill App 2d 412, 199 NE2d 300. The affidavits filed in support of a motion for summary judgment will be strictly construed and must leave no question of the movant’s right to judgment, but the affidavits filed in opposition thereto will be liberally construed. Tansey v. Robinson, 24 Ill App2d 227, 164 NE2d 272.”

For the foregoing reasons the judgment of the trial court of Madison County is reversed and this cause is remanded for further proceedings not inconsistent with this opinion.

Reversed and remanded for trial.

EBERSPACHER, J., concurs.

MILLS, J.,

dissenting:

Flimsy and puerile cases, like frivolous and hollow appeals, should be similarly treated: Summarily, and with dispatch.

Summary Judgment was, in my opinion, the proper medium for the disposition of this matter and the trial court should be affirmed. The majority of this Court concludes that the test for summary judgment has not been met. I must respectfully disagree. The standard or criterion has been tersely stated: “The pleadings and affidavits in the case should show, when construed most favorably against the moving party, that there is no genuine issue as to any material fact and that the moving party is entitled to the decree or order as a matter of law.” Glen View Club v. Becker, 113 Ill App2d 127, 251 NE2d 778, 782. (The visceral portion of the test has been purposely stressed.)

The Civil Practice Act of Illinois, Sec 57, sets forth summary judgment procedure and provides that affidavits shall be governed by rule. Pursuant to that statutory authority, the mandatory edict of Illinois Supreme Court Rule 191 is unequivocal in its language: “Affidavits in support of and in opposition to a motion for summary judgment . . . shall be made on the personal knowledge of the affiants; shall set forth with particularity the facts upon which the claim, counterclaim, or defense is based; . . . shall not consist of conclusions but of facts admissible in evidence. . . .” The mere filing of an affidavit raises no issue of fact (In re Estate of Boysen, 73 Ill App2d 197, 218 NE2d 838, 839), and the recitation of mere conclusions does not satisfy the requirements of the Supreme Court Rule (Prudential Insurance Company of America v. Zorger, 86 F2d 446, 449).

The majority of this court relies primarily upon the affidavit of the Herrons and “other affidavits similar to the Herron affidavits” in support of their holding. I agree that a careful examination of all of these counter-affidavits in opposition to the motion for summary judgment are similar and fall in the same category as the Herron affidavit. And I further agree with the majority that such affidavits state the conclusion that Robert Moss “lived at home with his parents.” The counter-affidavits unquestionably consisted of pure and undiluted conclusion, recited no facts based on personal knowledge from which such conclusions could be deduced and frequently amounted to nothing more than the rankest form of hearsay.

The mandatory requirements of Rule 191 are crystal clear and do not equivocate in the slightest: The affidavits must “set forth with particularity the facts” and “shall not consist of conclusions but of facts admissible in evidence. . . .” My interpretation of Rule 191 and the long line of Illinois decisions on summary judgment leads to but one result: Conclusions are simply not sufficient, and our courts have consistently held that the affidavits, both in support of and contra to summary judgment, must relate the facts from which those conclusions can be drawn. Were this not the rule, summary judgment could never stand and such procedure would be nonexistent. If we are to permit the mere recitation of conclusions in such affidavits, all that an opposing party litigant need do is recite as a conclusion the very opposite of what the summary judgment motion asserts — ■ no facts, no specifics — simply a naked and unadorned contrary statement of conclusion.

The majority would, however, seek to circumvent such requirement for facts and permit the conclusions to stand in opposition to the motion for summary judgment on the paper-thin reasoning that the matter at bar is “a non-technical subject” as treated in Rost v. Noble & Co., 316 Ill 357, 364, 147 NE 258. I do not quarrel with that doctrine, but I am unable to see even a shadow of its applicability to this appeal. The exception of permitting “a witness to express his opinion upon a non-technical subject . . . when it is impossible by word of mouth or gesture to reproduce the data before the jury . . .” is a far different cry from our problem: there is no jury here; there is no suspicion that to require facts from an affiant are “impossible” here; there is no hint that the facts here supporting the conclusion cannot be reproduced; there is no suggestion that such facts are incapable of being conveyed “by word of mouth or gesture.” Granted, opinion or conclusion is not always “practicable to place before the jury” and “subtle or complex facts perceived by the senses,” or “a combination of appearances which are too indefinite and general in their nature to be susceptible of direct proof,” or due to “limitations of language,” “cannot be adequately described and presented to the jury.” All well and good, but how is it relevant here? None of these difficulties in communication are hinted at in this case. This was not a question of a lay jury having difficulty understanding “subtle or complex facts.” It was a simple question of whether the affiants stated bald conclusions or the normal mundane facts of common observance upon which the conclusions were grounded. Assuming, arguendo, that the facts in the case at bar were so “subtle or complex” as to be uncommunicative to a jury, there would appear to be utterly no excuse why the facts could not be set forth in writing in an affidavit where all of the subtleties, accuracies and leisure of draftsmanship could paint a clear picture with a factual brush. It seems axiomatic that the counter-affiants could have related what they saw or observed Robert Moss doing at, in or around his parents’ home— facts. In short: there is nothing at all here to indicate that what the affiants saw defies description.

I, too, agree with the truism that the examination and cross-examination of witnesses before a court and jury is most important. That is why the test for summary judgment is as precise, exact and rigid as it is. But where there is “no genuine issue as to any material fact” the efficacy of summary judgment is most assuredly sound. And the time-honored method of measuring a given case for summary judgment is by affidavit, and affidavits must contain facts, not conclusions. By my yardstick, appellant’s counteraffidavits were wholly conclusionary, totally lacking in proper composition and requisite recital of facts, directly violative of Rule 191 and because of their inadequacies leave an absolute void in an ill-starred attempt to counter the affidavits in support of summary judgment.

Now, we turn to the taproot of this appeal: Was Robert Moss a resident of his father’s household and was he also driving his brother’s car with permission at the time of the collision? Both parties to this review agree that if either segment of this two-pronged question is answered in the negative, then Robert Moss was not covered by the insurance policy in question. We must then examine the affidavits in support of the motion for summary judgment and scrutinize them under the same hard, bright light of the tests applied to the counter-affidavits. These affiants were the father, mother, brother, sister and sister-in-law of the decedent, Robert Moss. Their affidavits consisted of a myriad of facts, not conclusions; and they are not at variance in the essential and material elements here scrutinized, but rather all fall into basically the same fundamental factual pattern:

Robert Moss was discharged from the Navy in 1959 in California. He returned to Illinois and stayed until 1961 when he returned to California to work for an uncle. After 2 or 3 months, he came back to Illinois where he worked for various employers. He didn’t hold a job very long. Over the next several years he went back and forth between California and Illinois. In January, 1966, he went to Florida to pick grapefruit and returned to Illinois the next month. From February 3, 1966, until his death on May 23, 1966, he was in the Cottage Hills area. Robert Moss was never married, and in the words of his mother he was “a wanderer.” He would work for a few weeks and then leave; his family had a difficult time keeping track of him. He would stay with either his parents or a brother or a sister — a few nights at a time, or maybe one night — and then somewhere else. He rarely sat down to a meal at any of their homes — and never regularly. He would eat a sandwich now and then at the home most convenient. He had articles of clothing at all of their homes, and they all did some of his laundry along with their own. He left a suitcase with some personal items in it at his brother’s home. He paid no board, and never paid any of them for doing his small amount of laundry. He stayed at all of their homes, moving from one to another. His mother stated that he had not slept at their house since February 3, 1966, except the night before his death.

As is germane to this review, the phrase “residents of the same household” must be construed. Was Robert a “resident” of the same “household” as his father, the insured? No Illinois authority relevant to this interpretation has been called to our attention. Consequently, it is necessary to turn to other sources. Black’s Law Dictionary, Revised Fourth Edition (1968), defines “household” as “A family living together. . . . Those who dwell under the same roof and compose a family.” And Black’s defines “residence” as “A factual place of abode. Living in a particular locality. ... It requires only bodily presence as an inhabitant of a place.” And from a brief scanning of the many cases in 37 Words and Phrases under “Resident,” it becomes apparent that the context of the use of “resident” is extremely important since its meaning varies with purpose and context.

In State Farm Mutual Automobile Insurance Company v. Walker, 78 ALR2d 1395, 334 SW2d 458, 462-463, the Court of Civil Appeals of Texas said: “We believe . . . that the term ‘resident’ should be construed to mean ‘member,’ or ‘member of the same family.’ As applied to a ‘family,’ a person is either a member of it or is not a member of it, for it is a personal relationship. It would not be possible to be a ‘resident’ of a family. It is possible to reside in or be a ‘resident’ ‘in a house,’ but not ‘of a house.’ One may be a ‘member’ of a family or organization or group, but not of a building or of anything inanimate.”

Hartford Accident & Indemnity Company v. Casualty Underwriters, Inc., 130 F Supp 56, held that a son’s temporary one or two day visits with his father were insufficient to classify the son as a member of his father’s household, and cited numerous cases to show that “The courts have constantly stressed the common ‘living under one roof’ as a signal characteristic of a household.” (P 58.)

The fact that all those living under the same roof in the same household contributed to the expenses of the home has been considered an important element. That factual situation was accented in defining “an adult member of the household” in Andrews v. Commercial Casualty Insurance Co., 128 Neb 496, 259 NW 653, 655. In an Oklahoma case, Indemnity Insurance Co. of North America v. Sanders, (Okla), 36 P2d 271, 273, that court viewed the word “household” as nearly synonymous with “family.” In the interpretation and construction of the phrase “an adult member of the assured’s household” in an insurance policy, the court emphasized that the head of the household had no liability to support his daughter or son-in-law, and that they in turn owed no duty to him to “abide the authority” of the father.

A situation somewhat analogous to the factual background in the case on review is found in American Casualty Company of Reading, Pennsylvania v. Crook, 197 F Supp 345, affirmed in 301 F2d 846. The question was whether or not a brother-in-law was “resident” of insured’s household. The brother-in-law “. . . had been divorced for several years and since his divorce has led a somewhat nomadic pattern of life. He has lived or visited from time to time with members of his family, or has stayed in hotels or rooming houses . . . traveled to and from work with other parties . . . went to Florida . . , and worked on various construction projects . . . returned to West Virginia . . . resided with the Lilly family . . . and . . . stayed a short time with his mother . . . three or four days prior ... he arrived at the Crook’s home ... he brought some of his belongings into the house, slept in one of the rooms with other members of the family, ate his meals with the family and to a large degree participated in their social and family activities. He paid no room or board on this occasion . . .” (p 348). The court determined that he was not a “resident” of the insured’s household.

I conclude that the cases here alluded to correctly reflect the better and majority view. Residence in a household contemplates a family unit relationship, where all members dwell under a common roof and shelter, contribute in manifold ways to the welfare of all members of that family unit and submit to the authority and influence of the head or leader of that domicile. Decedent fulfilled none of these requisites. Taken in their most favorable light from appellant’s viewpoint, the facts are manifestly clear in demonstrating that decedent’s was a pastoral and migratory existence, going where the mood directed, staying under the most convenient roof, resting on the nearest berth and partaking of the most available sustenance. Where his residence was is not at issue; the fact that it was not with his father is.

Since the first segment of the inquiry must be answered in the negative, and Robert Moss was not a resident of his father’s household at the time of the collision, appellant’s entire suit topples and she has no cause of action under the insurance policy here. To my view, the trial court correctly ruled in granting summary judgment, and its action should be affirmed.


source: Caselaw Access Project

author: CRAVEN, P. J.,

license: Public Domain

text:
    Suzanne Haring, Plaintiff-Appellee, v. Calvin Frederick Haring, Jr., Defendant-Appellant.
    Gen. No. 69-13.
    Fifth District.
    June 22,1970.
    Rehearing denied July 23,1970.

      Earl L. Vuagniaux, Vuagniaux & Metzger, of Edwards-ville, for appellant.
    Gerald McGivern, Wiseman, Shaikewitz & McGivern, of Alton, for appellee.
   CRAVEN, P. J.,

delivered the opinion of the court.

This is an appeal from a decree granting a divorce to plaintiff, Suzanne Haring, against defendant, Calvin Frederick Haring, Jr., on the grounds of extreme and repeated physical cruelty and awarding her custody of the children, certain property and child support.

Defendant-husband, in his answer to the complaint, denied that the plaintiff-wife had a cause of action and pleaded recrimination as an affirmative defense. During the trial this affirmative defense was amended to specifically allege that plaintiff was guilty of adultery with one Robert McLean and also was guilty of extreme and repeated mental cruelty during the time in that she kept company with Robert McLean over her husband’s objections.

A petition for temporary alimony, child support, solicitors’ fees and costs was filed by plaintiff. Thereafter, defendant filed a motion for summary judgment. The motion for summary judgment was denied, the court holding that there were disputed facts. The case was heard on the merits by the court without a jury. The court found the issues in favor of the plaintiff and against the defendant and granted plaintiff the divorce on the grounds of extreme and repeated physical cruelty on the part of the defendant.

In this appeal defendant contends that the evidence and the law do not support the trial court’s finding of extreme and repeated physical cruelty nor its finding against defendant on the defense of recrimination. He also contends that the trial court failed to rule correctly on certain objections to evidence and upon defendant’s motion for summary judgment.

Plaintiff, Suzanne Haring, aged 28 years, and Calvin Haring, aged 29 years, were married September 7, 1957. Three children were born of the marriage, Ricky, aged 9% years, Robie, aged 8 years, and Mark, aged 6 years.

Plaintiff testified that while on a trip to the Ozarks on September 1, 1968, defendant pushed her against the door frame of a cottage, causing pain in her right side and injuring her face. This testimony was corroborated by the testimony of Della McLean and Robert C. McLean, Jr., friends, who were present on the trip. Both Della and Robert McLean testified that on this occasion, plaintiff was crying and had a bruise on the side of her head and stated that her husband had shoved her into the door molding. Defendant, called under section 60 of the Civil Practice Act (Ill Rev Stats 1967, c 110, par 60), admitted that upon this occasion he forced his wife against the cabin wall, causing a red mark on her face, but stated he did it in defense of himself.

As a second act of physical cruelty, plaintiff testified that on September 3, 1968, after she had refused to accompany defendant on a search for a trailer hitch for his car, defendant hit her on the face, around the temple, which caused a bruise. He then picked her up by the neck and threw her on the bed. She testified that he then came at her with a knife, pushed her on the floor, held the knife next to her neck and said he was going to take her life and his own. This testimony also was corroborated by the testimony of Della McLean, whose house plaintiff visited that day. Della McLean testified that plaintiff had a bruise by her temple and a black-and-blue lip, as well as a bruise on one of her arms, and that plaintiff told her that her husband had beaten her that morning and threatened her with a butcher knife.

On his direct testimony, in defense, defendant testified that before he pushed plaintiff into the wall on the September 1 occasion she had slammed the cabin door in his face and hit him on the arm and chest. He also testified that on the September 3 occasion she hit him in the face and hand and kicked him. There was no corroboration of defendant’s testimony as to these acts by any other witness.

Some ten witnesses, other than defendant, testified for defendant, including defendant’s mother, brother, the brother’s wife, and the two older children of the parties. Several of these witnesses were neighbors who lived near the Haring home. These witnesses testified to the general conduct of defendant around the home— helping in the housework and being a good husband.

Further, several of these neighbor-witnesses testified that Bob McLean had visited the Haring home many times when defendant was away at work and that his car was there on many occasions when defendant and the children were away. One of these witnesses, a neighbor, Helen Marcus, testified that there were occasions where Bob McLean was at the Haring house and the youngest child, Mark, would come to her house and say, “Mommy has locked me out of the house.” Another neighbor, Gladys Winter, testified that on eight or ten occasions she had seen Bob McLean come out of the Haring home, alone, when defendant was not at home. Other witnesses testified to somewhat the same effect.

The two older children of the parties were called as witnesses by defendant. Ricky, aged 9% years, testified that he had seen Bob McLean kissing his mother at the Haring home when his father was not present; that he saw Bob McLean come out of his parents’ bedroom on one occasion; and that he had been locked out of the home on two or three occasions when Bob McLean was there and his father was gone.

Robie, aged 8 years, testified that on one occasion he saw Bob McLean and his mother kissing in the kitchen; that on occasions Bob McLean’s car was at their house; that one time when he was walking in the hall of his house, Bob McLean came out of the bedroom and he saw his mother get off the bed; and that he was locked out of the house on one or two occasions when Bob McLean was there.

Otis Snyder, a neighbor; John Haring, defendant’s brother; Judy Haring, the wife of defendant’s brother; and Velma Haring, defendant’s mother, all testified that on the evening of September 3, they were in the presence of and saw plaintiff, but did not see any marks or bruises on her face or lip.

Other testimony was given that Bob McLean kissed plaintiff at a dance; that defendant was concerned that plaintiff danced too close to Bob McLean; and that plaintiff and McLean were friends.

The evidence in this case, as it often is in a contested divorce case, is conflicting. As was stated in Tuyls v. Tuyls, 21 Ill2d 192, 195, 171 NE2d 779, 781 (1961), “To establish cruelty within the meaning of our Divorce Act (Ill Rev Stats 1959, c 40, par 1), it is necessary to prove by a preponderance of the evidence that the guilty party has on at least two separate occasions committed acts of physical violence against his spouse resulting in pain and bodily harm (Curran v. Curran, 19 Ill2d 164 [166 NE2d 13 (I960)] ; Wesselhoeft v. Wesselhoeft, 369 Ill 419 [17 NE2d 56 (1938)]; Farnham v. Farnham, 73 Ill 497 [ (1874) ])

In our opinion, the evidence shows acts of defendant on at least two separate occasions which were of physical violence to plaintiff and caused her bodily pain. Further, except for the testimony of defendant himself, the evidence shows that defendant’s acts were not provoked by plaintiff in any manner so as to justify such acts.

Although there is some conflict in the testimony on the question of corroboration that defendant’s acts against plaintiff’s face and body resulted in bruises, lumps or discoloration on each of the two alleged occasions of physical cruelty, there is sufficient proof to warrant granting a divorce on the grounds of extreme and repeated cruelty in this case. The court, hearing and observing the witnesses, was in a better position to determine their credibility than is a court of review. Thus, as has been repeatedly held by the courts of this State in such a situation, the findings of the trial court should not be disturbed. Tuyls v. Tuyls, supra; Curran v. Curran, 19 Ill2d 164, 166 NE2d 13 (1960); Berlingieri v. Berlingieri, 372 Ill 60, 22 NE2d 675 (1939); Riva v. Riva, 93 Ill App2d 137, 235 NE2d 655 (3rd Dist 1968).

Defendant’s defense of recrimination, affirmatively pleaded, if proved, would have barred plaintiff’s divorce. The defense of recrimination has been repeatedly recognized by the courts of this State. As was stated in Elston v. Elston, 344 Ill App 233, 100 NE2d 635, 639 (2nd Dist 1951), “ ‘Under such circumstances the rule long ago announced in Duberstein v. Duberstein, 171 Ill 133, 49 NE 316, 320 [1898], is clearly applicable here. As in that case, the defendant asserted recrimination in defense of plaintiff’s charges and thus we repeat: “Divorce is a remedy provided for an innocent party ... ; so that, when each party has committed a cause for divorce, the causes being of the same statutory character, neither can complain of the other. (Levy v. Levy, 388 Ill 179, 57 NE2d 366, 370 (1944).) Such an affirmative defense, however, must be proved by a preponderance of the evidence.

While we recognize that adultery seldom can be proved as a direct fact and that it may be established by circumstantial evidence (Stiles v. Stiles, 167 Ill 576, 47 NE 867 (1897); Marcy v. Marcy, 400 Ill 152, 79 NE2d 207 (1948)), we cannot say that the evidence in this case is such that the trial court erred in finding that the defense of adultery had not been proved by a preponderance of the evidence. “. . . to establish adultery by circumstantial evidence, the proofs must convince the mind affirmatively that actual adultery was committed, since nothing but the carnal act can lay the foundation for a divorce. . . .” Fowler v. Fowler, 315 Ill App 270, 42 NE2d 954, 957 (4th Dist 1942). Likewise, in order to establish adultery, proof of the clearest and most convincing character must be offered that an actual carnal act of adultery was committed. Metoyer v. Metoyer, 92 Ill App2d 32, 235 NE2d 882 (1st Dist 1968) (abst).

Likewise, in the state of the evidence in the instant case, we cannot hold that the trial court erred in refusing to hold that defendant’s affirmative defense of recrimination, based upon extreme and repeated mental cruelty, had been proved by a preponderance of the evidence. The credibility of the witnesses could be determined best by the trial court who saw and heard them testify. Even if their testimony was believed, the proof fell far short of proving such extreme and repeated mental cruelty as would bar plaintiff’s cause of action.

We have reviewed the rulings of the trial court in sustaining objections to a number of questions asked plaintiff and certain other witnesses, which rulings plaintiff has alleged to have been error. Without detailing each such question and ruling, we find no reversible error in any of these rulings. Many of these questions were irrelevant, while others were improper as calling for hearsay evidence. We do not deem it necessary to further consider these as grounds for reversal.

The defendant’s motion for summary judgment was properly denied, as defendant’s answer denying plaintiff’s allegations of extreme and repeated cruelty in her complaint and defendant’s affirmative defense of recrimination raised issues of fact to be determined. A motion for summary judgment will not lie where a genuine issue of material fact exists (Ill Rev Stats 1967, c 110, § 57 (3)). Rowan v. Matanky, 348 Ill App 296, 108 NE2d 799 (1st Dist 1952) ; Weather-Gard Industries, Inc. v. Fairfield Savings & Loan Ass’n, 110 Ill App 2d 13, 248 NE2d 794 (1st Dist 1969). Further, defendant’s allegation of an affirmative defense of recrimination required that he introduce proof to sustain this defense.

For the foregoing reasons, the judgment of the trial court was correct and should be affirmed.

Judgment affirmed.

SMITH and TRAPP, JJ., concur.


author: GOLDENHERSH, J. MORAN, P. J.,

text:
    J. & R. Electric Co., a Corporations, Plaintiff-Appellee, v. Edward P. Allison Co., Inc., a Corporation, Defendant-Appellant.
    Gen. No. 69-42.
    Fifth District.
    June 22,1970.
    Rehearing denied August 12,1970.

      MORAN, P. J., dissenting.

      William M. Wolff, of Murphysboro, and Seymour I. Burton and Jerome F. Dixon, of Chicago, for appellant.
    John C. Feirich, of Carbondale, for appellee.
   GOLDENHERSH, J.

Defendant, Edward P. Allison Co., Inc., appeals from the judgment of the Circuit Court of Jackson County entered in favor of plaintiff, J. & R. Electric Co. in the amount of $32,381 after a nonjury trial.

In this action plaintiff seeks to recover from defendant one-half of the loss allegedly sustained in the completion of the jobs enumerated in paragraph 10 of the contract hereafter discussed and construed.

The record shows that on December 30, 1964, plaintiff, defendant and J. & R.-Allison, Inc., hereafter called J. & R.-Allison, entered into a written agreement, the preamble of which states that plaintiff and defendant own respectively 49% and 51% of the outstanding shares of stock of J. & R.-Allison which by mutual agreement has been, for several months, in the process of dissolution, and the parties prefer that rather than dissolve J. & R.-Allison, plaintiff buy defendant’s shares.

The agreement provides for the purchase by plaintiff of defendant’s shares for the sum of $510, and the resignation of certain directors and corporate officers who are defendant’s “representatives” in the management of J. & R.-Allison. It further provides that defendant will release plaintiff and J. & R.-Allison of all claims which it may have against either except those provided in the agreement, that defendant will not in any manner deal with the assets or liabilities of either plaintiff or J. & R.-Allison and will not do any act which will create any liability on the part of either plaintiff or J. & R.-Allison.

It further provides that defendant will make an assignment of all of its right, title and interest in and to the assets of J. & R.-Allison except its rights under this agreement and it also agreed to deliver to plaintiff all the books, seals, records, etc. of J. & R.-Allison. Defendant also agreed to execute all documents necessary in the opinion of plaintiff, J. & R.-Allison or its counsel “to satisfactorily complete the transfer herein provided for and carry out the manifest intent of this agreement, namely: for J. & R. (plaintiff) to completely purchase all the right, title and interest of Allison (defendant) in The Corporation (J. & R.-Allison).”

Paragraph 8 of the agreement provides:

“8. J. & R. (plaintiff) agrees that it will not in any manner whatsoever deal with the assets or liabilities of ALLISON, (defendant) and will do nothing which might give rise to any suit, claim, claim for lien, lien, or the like whatsoever, and will not in any manner whatsoever make any contract, undertake any obligation, borrow any money, pledge any asset of any nature whatsoever, or in any way encumber any asset in any manner whatsoever of THE CORPORATION (J. & R.-Allison) or of ALLISON which might in any manner whatsoever make ALLISON liable or responsible in whole or in part therefor.”

In paragraph 9 plaintiff agreed to execute such documents as in the opinion of defendant or its counsel are necessary “to satisfactorily complete the transfer herein provided for and carry out the manifest intent of this Agreement, namely: for J. & R. to completely purchase all the right, title and interest of ALLISON in the CORPORATION.”

The remaining paragraphs of the agreement provide:

“10, It is mutually agreed and understood that there are eight jobs yet to be completed by THE CORPORATION, which are now in progress, which are designated as follows: JR 183, JR 161, JR 164, JR 108, JR 110, JR 111, JR 112, and JR 114. It is also understood that there are numerous accounts receivable and accounts payable of said CORPORATION, together with substantial sums owed by THE CORPORATION to both ALLISON and J. & R., which are hereinafter referred to as INVESTMENT ACCOUNTS. It is mutually agreed that THE CORPORATION will continue in business hereafter for the principal purpose of completing the jobs above noted, collecting the accounts receivable, paying the accounts payable, paying the INVESTMENT ACCOUNTS, and then distributing the net profit or loss of THE CORPORATION. The balance of this Agreement has to do with such continued operation.
“11. It is mutually agreed that the jobs in progress shall be completed as rapidly as possible and that the accounts receivable shall be collected as rapidly as possible.
“12. J. & R. Agrees to furnish the necessary manpower to operate THE CORPORATION to completion for which it shall be paid twenty per cent (20%) of the productive labor necessary and performed in that regard as an overhead charge to the CORPORATION. In this regard, it is mutually agreed that J. & R. has full power and authority as the sole stockholder of THE CORPORATION to do and perform any and all acts necessary to the continued operation of THE CORPORATION, but that in so doing, it shall protect ALLISON from any liability or responsibility in accordance with the terms of Paragraph 8 hereof.
“13. It is mutually agreed that the INVESTMENT ACCOUNTS of J. & R. and ALLISON in THE CORPORATION are as follows:
“ALLISON $35,694.77
“J. & R. $26,758.39.
“THE CORPORATION shall immediately upon the execution of this Agreement borrow the sum of $24,490.00, at six per cent (6%) interest, and that amount shall be paid by THE CORPORATION to ALLISON in reduction (68.61%) of ALLISON’S INVESTMENT ACCOUNT. Thereafter, as accounts are collected and work is completed and paid for, the income of THE CORPORATION shall be paid in the following priorities:
“(a) The operating expenses of THE CORPORATION, including the overhead charge to J. & R., as herein provided for.
“(b) All accounts and notes payable, including THE CORPORATION’S note for $24,490.00, as aforesaid, and all interest and charges thereon. “(c) To J. & R. in reduction of its INVESTMENT ACCOUNT until 68.61% thereof, or $18,358.93, has been paid.
“(d) Thereafter, on a fifty-fifty basis to ALLISON and J. & R. until both INVESTMENT ACCOUNTS have been paid in full.
“(e) Thereafter, on a fifty-fifty basis to J. & R. and ALLISON, as a distribution of profit from the CORPORATION.
“It is agreed that losses, if any, shall be distributed in the same priority and order as income and profits are to be distributed as above stated.
“14. It is agreed that THE CORPORATION will render a monthly accounting to ALLISON concerning its operations to the end that ALLISON is fully informed concerning the performance of the terms of this Agreement and that this will be ALLISON’S only interest in the operation of THE CORPORATION,”

The agreement is executed by all three corporations.

Plaintiff offered the testimony of Audrey M. Davis, plaintiff’s bookkeeper, who also served as bookkeeper for J. & R.-Allison, and Bernard Ross, a certified public accountant. It offered, and the court admitted in evidence, J. & R.-Allison’s financial statements for a ten-month period ending December 31, 1964, and a three-year period ending February 28, 1967. These statements were prepared by Mr. Ross’ firm. Also admitted in evidence as defendant’s exhibit is a statement prepared by Mrs. Davis showing the breakdown of receipts and costs on the jobs enumerated in paragraph 10 of the agreement. This exhibit is the only evidence adduced by defendant.

Defendant took no part in the operation of J. & R.Allison after December 30, 1964. Plaintiff provided such funds as were necessary to complete the jobs. No statements were sent defendant as provided in paragraph 14 of the agreement. Mrs. Davis testified that at no time did defendant make any inquiry as to the operations.

The court entered judgment in favor of plaintiff in the amount which Mr. Ross testified was due under his interpretation of the agreement, and this appeal followed.

It is defendant’s contention that under the terms of the agreement plaintiff agreed to hold defendant harmless from any liabilities arising from the operation of J. & R.Allison, and the court erred in construing the contract to hold defendant liable.

Prior to discussing the issues presented for review, it is deemed appropriate to comment upon one contention made by plaintiff. Plaintiff argues that the basis for defendant’s attack on the judgment was not made an issue in the trial court and cannot be considered by this court. It is true that ordinarily an appellate court should not consider different theories if proof might have been offered to refute them had they been presented in the trial court, Hux v. Raben, 38 Ill2d 223, 225, 230 NE2d 831. However, here the grounds for reversal urged on appeal were asserted in defendant’s motion to dismiss the complaint and are implicit in its denial of liability in its answer. It is not apparent in what manner plaintiff was surprised, nor is there any indication as to what evidence, if any, might have been offered to refute defendant’s contentions which are not factual, but legal.

The rule, long established, is that contracts should be construed as a whole and conflicting provisions should be reconciled if possible, Agnell v. Illinois Bell Tel. Co., 342 Ill App 516, 97 NE2d 483. “Generally, words in a contract are to be given their usual and primary meaning at the time of the execution of the contract. Contracts must receive a reasonable construction according to the intention of the parties if that intention can be ascertained from their language. A reasonable construction will be preferred to one which is unreasonable.” Marshall Field & Co. v. J. B. Noelle Co., 81 Ill App 2d 409, 414, 26 NE2d 454.

Citing Thomas Hoist Co. v. William J. Newman Co., 365 Ill 160, 6 NE2d 171; Ryan Oil Co. v. Ewald, 40 Ill App2d 145, 189 NE2d 404; Olson v. Rossetter, 330 Ill App 304, 71 NE2d 556; and Northwest Racing Ass’n v. Hunt, 20 Ill App2d 393, 156 NE2d 285, defendant argues that paragraphs 8 and 12 clearly relieve it of any liability and assuming, arguendo, that paragraph 13 can be construed to impose liability upon it, paragraphs 8 and 12 must prevail for the reason that when two clauses of a contract are so repugnant to each other that they cannot stand together, the first controls. We have examined the authorities cited and are reluctant to apply the rule for the reasons so well stated in Samuels v. Meyerovitz, 270 111 App 210, wherein at page 214, the court said: “While the rule exists as these authorities show, it is resorted to by the courts with regret and usually in despair of finding a reasonable interpretation. As Professor Williston says, Tt is obvious, however, that such a rule is extremely artificial, and can only be accepted as a last resort/ ” In our opinion, the contract can be construed in accordance with rules of construction which find firmer support in legal reasoning than does that for which defendant contends.

Applying the rule stated in Marshall Field & Co. v. Noelle (supra) we conclude that defendant cannot be held liable for the sums which plaintiff seeks to recover and the judgment must be reversed. Paragraph 8 states clearly and unequivocally that nothing shall be done which might impose liability on the defendant. Paragraph 12 clearly and unequivocally vests plaintiff with full power and authority to do and perform all acts necessary to the continued operation of J. & K-Allison and with equal clarity requires it to protect defendant from liability in accordance with the terms of paragraph 8.

In our opinion the provisions of paragraph 13 not only do not serve to impose liability on defendant, but are inconsistent with any such construction. It provides that immediately upon the execution of the agreement defendant is to receive 68.61% of its “Investment Account.” The third distribution in order of priority is a similar reduction of plaintiff’s “Investment Account.” Clearly, the remaining 31.39% of each party’s “Investment Account” is the “cushion” out of which plaintiff was to wind up the then pending jobs. We construe the paragraph to mean that defendant’s only exposure was the loss of the 81.39% of its “Investment Account” and no further liability could be imposed upon it.

For the reasons set forth, the judgment of the Circuit Court of Jackson County is reversed and the cause is remanded to the Circuit Court of Jackson County with directions to vacate the judgment appealed from, and enter judgment in favor of the defendant Edward P. Allison Co., Inc., a corporation, and against the plaintiff, J. & R. Electric Co., a corporation, in bar of suit and for costs.

Judgment reversed and remanded with directions.

EBERSPACHER, J., concurs.

MORAN, P. J.,

dissenting:

The majority opinion says that “Paragraph 8 states clearly and unequivocally that nothing shall be done which might impose liability on the defendant” and holds that this language means that the defendant is exonerated from sharing in the losses even though Paragraph 10 clearly states that after all the items enumerated in Paragraph 10 are paid, the net profit or loss of the corporation shall be distributed. I disagree.

The principal purpose of the contract was to wind up the obligation of the corporation, which at that time consisted of eight jobs described in Paragraph 10 of the agreement. After these jobs were completed by J. & R. and after the parties were paid items A through E as provided by Paragraph 13, the losses were to be distributed in the same priority as the income and profits. This is the plain meaning of the contract as provided by Paragraphs 10, 11, 12 and 13 of the contract. All of the provisions of the contract, being 1 through 9 and 14, were subordinate to the main purpose of the contract which was the completion of the business of the corporation and the distribution of the profit and losses. This is borne out by the following language from Paragraph 10:

“. . . It is mutually agreed that The Corporation will continue in business hereafter for the principal purpose of completing the jobs above noted, collecting the accounts receivable, paying the accounts payable, paying the Investment Accounts, and then distributing the net profit or loss of the Corporation. The balance of this Agreement has to do with such continued operation.”

Paragraphs 1, 2, 3, 5 and 6 of the contract covered the removal of the defendant from the active management and control of the business. Paragraphs 7 and 9 mutually obliged the defendant and the plaintiff to make all the necessary transfers required by the contract. Paragraph 14 required a monthly accounting to defendant.

The final remaining two paragraphs of the contract, 4 and 8, mutually obligated the defendant (in Paragraph 4) and the plaintiff (in Paragraph 8) to not deal with the assets of each other or of the corporation in such a manner as to make the other liable thereby. The obvious and evident purpose of these two paragraphs, which were ancillary to the basic purpose of the contract as stated above, was to protect the parties from each other in relation to any other business activities which they might separately be carrying on (unrelated to the winding up of the business of the corporation) and the possibility of one party involving the other on account of or in connection with their prior association together. It is obvious that these two paragraphs did not in any way relate to the winding up of the business and the distribution of the net profit or loss which was provided for in Paragraphs 10 to 13 inclusive, but pertained only to outside activities, unrelated to the corporation, that would be carried on by the plaintiff and defendant in their continuing separate businesses.

A comparison of the language of the two paragraphs will probably illustrate this point more clearly:

Paragraph 4 reads:

“Allison further agrees that when the terms and provisions of the first two paragraphs herein have been met that it will not in any manner whatsoever deal with the assets or liabilities of J. & R., and will do nothing which might give rise to any suit, claim, claim for lien, lien, or the like whatsoever, and will not in any manner whatsoever make any contract, undertake any obligation, borrow any money, pledge any asset of any nature whatsoever, or in any way encumber any asset in any manner whatsoever of The Corporation or of J. & R. which might in any manner whatsoever make J. & R. or The Corporation liable or responsible in whole or in part therefor.”

Paragraph 8 reads:

“J. & R agrees that it will not in any manner whatsoever deal with the assets or liabilities of Allison, and will do nothing which might give rise to any suit, claim, claim for lien, or the like whatsoever, and will not in any manner whatsoever make any contract, undertake any obligation, borrow any money, pledge any asset of any nature whatsoever, or in any way encumber any asset in any manner whatsoever of The Corporation or of Allison which might in any manner whatsoever make Allison liable or responsible in whole or in part therefor.”

Paragraph 4 is obviously an undertaking by Allison that Allison will not make the corporation or J. & R. liable to others by the future operation of Allison’s business, and Paragraph 8 is a mutual agreement by J. & E. that it will not in the future obligate Allison to third parties by reason of the operation of its own business or that of the corporation. By no stretch of the imagination can the language of Paragraph 4 be construed to exonerate J. & R. from sharing in the losses of the corporation, and likewise, since the language and intent of Paragraph 8 was similar to Paragraph 4, by no stretch of the imagination can the language of Paragraph 8 be construed to exonerate Allison from sharing in the future losses of the corporation.

Neither Paragraph 4 nor Paragraph 8 of the agreement pertains to a division of the profits, losses, assets or liabilities, but rather to a mutual agreement between J. & R. and Allison not to obligate each other in the future operation of each one’s business. In other words, Paragraph 4 and Paragraph 8 are reciprocal agreements by Allison and J. & R„ not to pledge the assets of each other to people that each may be doing business with in the future.

The intent of the parties in Paragraphs 10 and 13, when considered with the entire agreement, is clear, namely: If the windup of the business resulted in a profit that profit was to be shared by and paid to the plaintiff and the defendant and, on the other hand, if the windup resulted in a loss, that loss was to be shared by and paid for by the plaintiff and defendant.

I would affirm the judgment of the trial court.


author: HR. JUSTICE ABRAHAMSON

text:
    Charles Laine, a Minor, and Sulo M. Laine, Individually and as Father and Next Friend, Plaintiffs-Appellants, v. Albert L. Dittman, Arthur Blecky, Warren Polly, and William E. Brook, Robert Denman, August C. Costoff, Dr. Albert Bucar, Robert Lindblad, Mrs. Bette Meyer, and William E. Petty, Each Individually and as the Board of Education of Antioch Community High School, District No. 117, County of Lake and State of Illinois, a Municipal Corporation, Defendants-Appellees.
    Gen. No. 69-165.
    Second District.
    June 22,1970.

      Peter J. Collins, and Jeffrey Diver, of Waukegan, for appellants.
    Larson and Lumber, of Antioch, for appellees.
   HR. JUSTICE ABRAHAMSON

delivered the opinion of the court.

On September 4, 1969, the first day of school of the new term, Charles Laine, a 17-year-old junior at Antioch Community High School, was advised by Arthur Blecky, the Dean of Boys, not to return to school until his hair was cut and his sideburns shaved. On September 5, 1969, Sulo H. Laine, the father of Charles, was notified by letter from Albert Dittman, Superintendent of the school, that Charles was suspended from school for his failure to comply with a “Grooming Code” and that unless he returned to school by September 9 “properly groomed” a special meeting of the Board of Education would consider his expulsion. On September 8, Charles and Sulo Laine filed a verified complaint in the Circuit Court of Lake County against the members of the board and certain administrative personnel of the school that charged, among other things, that the Grooming Code, as far as it pertained to the length and style of the boy’s hair, violated the constitutions of the United States and the State of Illinois.

The trial court entered a temporary injunction without notice on that date restraining the board from proceeding with a special meeting to consider the expulsion of Charles and to refrain from “not admitting” him to school. A full hearing was held on September 18, after which the court dissolved the temporary injunction and refused to issue a permanent injunction. An appeal was immediately taken from that order and we ordered that the temporary injunction be kept in full force and effect during the pendency of the appeal pursuant to Supreme Court Rule 305. (Ill Rev Stats 1967, c 110A.)

The “Parent and Student Handbook” of Antioch Community High School, adopted in July of 1969, as it pertains to boys and to grooming and hair provides:

“6. Hair must be neat and well-groomed. Extreme or bizarre hair styles not acceptable.
“7. Clean shaven.”

A memorandum opinion filed by the trial judge states that as of September 18 Charles had long hair combed back shoulder length and that the entire sides of his face were covered with hair.

Charles Laine testified that he started classes on September 4 that proceeded without incident until the 5th period, when he was called from a study hall and sent home by the dean of boys because he was not properly groomed. He returned to school on September 9, pursuant to the injunction, and attended 42 classes in the next 7 days until the date of the hearing. On cross-examination, Charles admitted that various unkind remarks were made to him by other students and that he was the object of whistles in the halls of the school. On September 10 he requested that he be assigned somewhere other than the cafeteria for lunch since he heard rumors of possible harassment. Charles testified that in his opinion present society is “very sick” and that his hair style is meant to set him apart from other people.

Arthur Blecky testified that as dean of boys he was charged with the maintenance of discipline within the school. He had been informed by teachers that on two occasions petitions were distributed in class by students against the hair style worn by Charles and that approximately 20 students personally complained to him. He also observed that other students made derogatory remarks to Charles and whistled at him when he passed in the hall but admitted that this did not disturb classwork since it occurred between classes. In his opinion, there was an “air of tension in the student body,” a feeling that he was “on a safety valve” as a result of Charles* appearance that had affected the “climate of the school.”

Arthur Dittman testified that as Superintendent he and certain other personnel, including Mr. Blecky, determined what hair style was “bizarre” and that in his opinion a bizarre hair style was anything that was “not normally worn by the boys” at Antioch. He testified that “an explosive situation” existed at the school as a result of Charles’ hair and that he diligently supervised the situation to avoid a confrontation. Teachers were assigned to patrol the halls and although no explosion had yet occurred, the tension was becoming “tremendously worse.”

Norman Hahn, a history teacher, also observed students whistle at Charles between classes and on one occasion they attempted to present him with a dress. It was in his classroom that a petition was circulated by students. Hahn stated that Charles ignored the remarks, whistles and proffered gift and, in fact, took no action in response to his fellow, displeased students.

The trial judge indicated in his memorandum opinion that it was not necessary to consider the constitutional aspects of the Grooming Code to make a determination since the school officials would be within the proper exercise of their powers to suspend or expel Charles under the circumstances with or without such a Code. Although no authority is cited for this conclusion, we presume it is based on those powers conferred upon school boards by the School Code to adopt all necessary rules, to suspend and/or expel students and to maintain diseipline. (Ill Rev Stats 1967, c 122, §§ 10-20.5, 10-22.6, and 24-24.)

It is well known, however, that a school board is not immune from the application of constitutional limitations and its actions are subject to the same scrutiny as any other governmental body. The United States Supreme Court in the 1943 case of West Virginia State Board of Education v. Barnette (319 US 624, 637, 638) said in regard to local school boards:

“Such Boards are numerous and their territorial jurisdiction often small. But small and local authority may feel less sense of responsibility to the Constitution and agencies of publicity may be less vigilant in calling it to account .... There are village tyrants as well as village Hampdens, but none who acts under color of law is beyond reach of the Constitution.”

In the more recent case of Tinker v. Des Moines Independent Community School Dist., 393 US 503, 21 L Ed 2d 731, 89 S Ct 733, (February, 1969), the Supreme Court considered the explusion by a local school board of certain students who wore black armbands to protest the Vietnam War in relation to the First Amendment guarantee of free speech, and said at p 506:

“First Amendment rights, applied in light of the special characteristics of the school environment, are available to teachers and students. It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate. This has been the unmistakable holding of this Court for almost 50 years.”

Until recently, the number of reported cases that relate to the constitutional aspects of Hair or Grooming Codes promulgated by local school boards were few. Generally, it was held that unusual hair style, like any other conspicuous departure from accepted custom, could result in the distraction of other pupils and was, therefore, subject to reasonable regulation by local school boards. Crews v. Clones, 303 F Supp 1370; Leonard v. School Committee of Attleboro, 349 Mass 704, 212 NE2d 468.

The subject has been recently reconsidered by the courts in a manner more sensitive to the rights of individual expression. In Breen v. Kahl, 419 F2d 1034 (December, 1969), cert denied 6/1/70, the Circuit Court of Appeals, 7th District, considered a regulation of a local school board in Wisconsin that provided that “Hair should be washed, combed, and worn so it does not hang below the collar line in the back, over the ears on the side and must be above the eyebrows. Boys should be clean-shaven; long sideburns are out.” The District Court had found that the expulsion of certain students for violation of this regulation was unconstitutional as a denial of due process and equal protection of the laws where the distraction caused by the length of hair worn by the expelled students was not “so aggravated, so frequent, so general and so persistent” to justify an abridgement of their right to individual freedom. In its opinion the 7th Circuit held at p 1036:

“The right to wear one’s hair at any length or in any desired manner is an ingredient of personal freedom protected by the United States Constitution.”

The Court does not specify if this right is one guaranteed under the first amendment as a species of free speech or expression or an “additional fundamental right” of the 9th amendment but does state that it is applicable to the States through the due process clause of the Fourteenth Amendment. The court then adopted the test of the recent case of Griswold v. Connecticut, 381 US 479, in holding:

“To limit or curtail this or any other fundamental right, the state has a ‘substantial burden of justification.’ ”

The court concluded that since the record contained no evidence that the long hair of the students created any disturbance, the board had failed to sustain the burden of substantial justification and affirmed the trial court.

The Antioch school board is not unmindful of the Breen and other decisions but contends that the record in this case clearly shows that the long hair of Charles Laine was a serious disturbance to the operation of the school and that they therefore sustained the burden of “substantial justification.”

It is clear that the right of personal choice in the matters of hair length or style as in other areas of personal appearance is not unlimited. However, the doctrine of the Breen case required that it can only be abridged or curtailed by a school board where the exercise of that right creates an actual disturbance or disruption to the orderly process of school functions. In the Breen case, there was testimony to the effect that other students were distracted by the long hair of the dissident students but, as we have seen, the court concluded that this alone was not evidence of a “disturbance.” Here, the evidence shows that approximately 20 students in a school body of over 1,200 expressed complaint in regard to the length of Charles Laine’s hair. On two occasions petitions were circulated by students that delayed the start of class. Although there was whistling at Charles in the hall, the dean of boys admitted that this itself was not a disturbance or, indeed, even irregular. The bulk of the evidence in regard to a disturbance was of the diffuse and apparently unfounded fears of the school administration that a major crisis was on hand. The description of the situation as “explosive” or as a “confrontation” appears to reflect the anxieties of the school personnel rather than the reaction of the other students.

Although we realize that the Tinker case, quoted earlier, expressly did not apply to school regulations of hair or dress, we believe that certain language in that case is pertinent to the problem before us. There the court stated at pages 508 and 509:

“But, in our system, undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression. Any departure from absolute regimentation may cause trouble. Any variation from the majority’s opinion may inspire fear. Any word spoken, in class, in the lunchroom, or on the campus, that deviates from the views of another person may start an argument or cause a disturbance. But our Constitution says we must take this risk, Terminiello v. Chicago, 337 US 1, 93 L Ed 1131, 69 S Ct 894 (1949); and our history says that it is this sort of hazardous freedom — this kind of openness — that is the basis of our national strength and of the independence and vigor of Americans who grow up and live in this relatively permissive, often disputatious, society.”

We do not feel that the evidence before us is sufficient to justify the abridgment of the right of Charles Laine to wear his hair as he sees fit. The judgment of the trial court is, therefore, reversed and remanded with instructions to enter an order that the defendants be permanently restrained and enjoined from attempting to suspend or expel Charles Laine because of the length or style of his hair.

Reversed and remanded with instructions.

DAVIS, P. J. and SEIDENFELD, J., concur.


author: ALLOY, J.

text:
    Preferred Risk Mutual Insurance Company, a Corporation, Plaintiff-Appellant, v. Kenneth Jacob Hites, Kenneth John Hites, Rock Island Bank and Trust Company, as Administrator of the Estate of James Haskins, Deceased, Rock Island Bank and Trust Company, as Administrator of the Estate of Odie Dowdy, Deceased, Clarence Kemp, Patsy Kemp, Bill Joe Box, Connie Box, Georgia Carter, Paul Brandt, Gary Archer, Ruth Casel, Gibraltar Insurance Company, a Corporation, Donald Barr, Moline National Bank as Trustee Under Trust No. 893 for the Benefit of Annie O’Klock, Dan O’Klock, Max O’Klock and Rose Marie O’Klock Skaladany, Homer Wilson, d/b/a Keg Tavern, Thomas A. Lundeen, Missouri Gravel Company, a Corporation, Floyd R. Hulbert, d/b/a Crystal Inn of Hampton, Illinois, and Gar-nett Harden, d/b/a La Chateau Lounge, Defendants-Appellees.
    Gen. No. 70-1.
    Third District.
    June 24,1970.
    Rehearing denied July 22,1970.

      Jack E. Horsley and Richard F. Record, Jr., Craig & Craig, of Mattoon, for appellant.
    Harrison H. Kavensky, Winstein & Kavensky, Reidy, Katz, McAndrews, Durkee & Telleen, Klockau, McCarthy, Schubert, Lousberg & Ellison, of Rock Island, Dan H. McNeal, Jr. and Bozeman, Neighbour, Patton & Noe, of Moline, Durward J. Long, Long & Schrager, and Sam Skafidas, of East Moline, for appellees.
   ALLOY, J.

Plaintiff, Preferred Risk Mutual Insurance Company, filed a complaint for declaratory judgment in which it sought a declaration as to whether it insured Kenneth John Hites under an automobile insurance policy issued to his father, Kenneth Jacob Hites. Plaintiff alleged that the failure to notify the plaintiff-company of a driver’s license suspension of Kenneth John Hites relieves the company from responsible coverage of an automobile accident involving Kenneth John Hites. When plaintiff’s third amended complaint was dismissed upon motion of defendants, plaintiff elected to stand on the complaint.

No evidence was presented in the trial court and the decision of the trial judge was based entirely upon pleadings and exhibits attached to pleadings. The pleadings disclosed that plaintiff originally issued a policy of insurance to defendant Kenneth Jacob Hites based upon an application for the policy dated May 4, 1957. In that application was the following recital:

“No automobile license or permit to drive of mine or anyone in my household has been revoked, suspended or refused, except as specified hereon. All drivers listed above now have valid operator’s licenses.”

At that time Kenneth John Hites, son of defendant Kenneth Jacob Hites, was a member of the household of Kenneth Jacob Hites and was insured under the policy. After 1957, various intervening declarations prior to December 3,1967, included a statement:

“No operator’s license or permit to drive issued to the named insured or any member of Ms household has been cancelled, revoked or suspended.”

It is disclosed that on July 31, 1967, plaintiff issued to Kenneth Jacob Hites, the father of Kenneth John Hites, an automobile policy which was attached to the complaint and which insured a certain automobile and extended liability coverage to members of the Kenneth Jacob Hites household, including Kenneth John Hites, his son. The complaint also disclosed that prior to December 3, 1967, defendant Kenneth John Hites had been guilty of three traffic violations occurring within one year which appeared on Ms record in the Secretary of State’s office and that he had received a warning letter from the Secretary of State. Effective August 18, 1967, the driver’s license of Kenneth John Hites was suspended until November 18, 1967. On October 4, 1967, an amended declaration changed the policy term from July 31, 1967, to a period commencing August 1, 1967, and extending to January 31, 1968. The amended declaration sheet covering the period from August 1, 1967, to January 31, 1968, contained the language “No operator’s license or permit to drive issued to the named insured or any member of his household had been cancelled, revoked (or) suspended.” On October 20, 1967, there was issued a notice of change of agent with a premium notice. On November 9, 1967, there was a further amended declaration showing premium reduction and a new policy term for the period July 31, 1967, to November 29, 1967. The declaration sheet also contained the language with respect to members of the household not having had any operator’s license cancelled, revoked or suspended.

On December 8, 1967, defendant Kenneth John Hites was involved in an automobile collision, as a result of which a number of claims were made against Kenneth John Hites.

Plaintiff in the complaint alleges that there was a duty upon defendant Kenneth Jacob Hites to disclose and reveal to plaintiff the existence of the suspension of the driver’s license of defendant Kenneth John Hites (during the period from August 18, 1967 to November 18, 1967), on October 4, 1967, and on November 9, 1967, when the amended declaration sheets which have been referred to were issued to defendant Kenneth Jacob Hites. It is asserted that said defendant had a duty to refrain from concealing any such change or changes in the representation contained in the application for insurance to the effect that no automobile license or permit to drive of any member of the household had been cancelled, revoked or suspended. It is expressly asserted that defendant Kenneth Jacob Hites failed to advise plaintiff of the license suspension of his son, Kenneth John Hites, even though he knew of such suspension.

As a result thereof, plaintiff asserted that it did not cover Kenneth John Hites in the accident referred to and had no duty to defend Kenneth John Hites or pay any damages. Claims had also been made by numerous defendants as against several taverns alleged to have served liquor to Kenneth John Hites and such defendants are seeking reimbursement from Kenneth John Hites and they claim he is insured by plaintiff insurance company. Plaintiff accordingly prayed for declaratory judgment finding the policy did not cover the collision referred to in the complaint and that plaintiff had no obligation to defend Kenneth John Hites or pay any damages. A number of exhibits are attached to the complaint including the policy, the various declarations and notices sent to the defendant Kenneth Jacob Hites and, also, there is a driver’s license record of Kenneth John Hites. The exhibits also disclose that the declaration dated October 4, 1967, was to be effective August 1, 1967, and the declaration issued November 9, 1967, was to be effective July 31,1967. Motions to dismiss the complaint were filed by defendants and after consideration by the trial court, such court entered an order dismissing plaintiff’s complaint.

The issues before this Court are whether the trial judge had the power to enter an order dismissing plaintiff’s complaint for declaratory judgment without hearing evidence as to the facts alleged, and, also, whether the trial court was correct in determining that plaintiff’s declaratory judgment complaint did not state a cause of action.

It has been clearly established that if a complaint for declaratory judgment does not state a cause of action, the trial court may grant a motion to dismiss the complaint. While the courts of this State have emphasized that the declaratory judgment statute should be construed broadly (Illinois Power Co. v. Miller, 11 Ill App2d 296, 137 NE2d 78), the courts have emphasized that a complaint is still required to state a cause of action. This was clearly specified in the case of Gouker v. Winnebago County Board of Sup’rs, 37 Ill2d 473, at 478-9, 228 NE2d 881, where the court states:

“Plaintiff argues that defendants’ motion to dismiss admitted all well-pleaded facts and that dismissal under section 48 of the Practice Act, (Ill Rev Stats 1965, chap 110, par 48,) was not justified. ‘Motions to dismiss or strike a pleading admit facts well pleaded, but not conclusions of law or conclusions of fact unsupported by allegations of specific facts upon which such conclusions rest/ (Pierce v. Carpentier, 20 Ill2d 526, 531.) As noted in Berk, a number of separate grounds were alleged, many of which were neither specific nor complete and were almost the exact objections urged in the Adamowski case, and this court affirmed the dismissal. The allegations of this complaint are in turn practically identical with those in Berk. The complaint is largely in terms of abstract conclusions of law; and where facts are alleged, they are not sufficiently specific to support the conclusions. Under these circumstances the trial court was justified in granting the motion to strike/’

As stated in LaSalle Gas. Co. v. Lobono, 93 Ill App2d 114, at 119, 236 NE2d 405, when the trial court considers a motion to dismiss the complaint, the court has no discretion in ruling on the motion, where the complaint states a cause of action. Where the plaintiff is entitled to no relief on the facts alleged, however, the complaint should be dismissed. To the same effect is Goldberg v. Valve Corp. of America, 89 Ill App2d 383, 233 NE2d 85. As a consequence, it is clearly established that the trial judge may properly dismiss the complaint for declaratory judgment if plaintiff is not entitled to the relief prayed for under the facts alleged in the complaint.

Plaintiff contends that its complaint states a cause of action, on the theory that there was an actual controversy over the question of whether the policy of plaintiff did or did not insure Kenneth John Hites because of the failure of Kenneth Jacob Hites to notify plaintiff that the driver’s license of Kenneth John Hites was suspended from August 18, 1967, to November 18, 1967. All of the facts required to determine such issue are set forth in the pleadings and, what plaintiff is requesting is a determination of a question of law, rather than a disputed question of fact. Plaintiff contends that when the amended declarations were issued by the company on October 4, 1967, and on November 9, 1967, Kenneth Jacob Hites falsely represented that his son's driver’s license had not been suspended by not notifying the company of the suspension. It is contended that such misrepresentation was material, and that the coverage was, therefore, voided as to the son Kenneth John Hites. The motions to dismiss all specifically set forth that although the amended declarations were issued October 4, 1967, and November 9, 1967, they were to be effective on August 1, 1967, and July 31, 1967. The motions to dismiss conclude, that on both August 1, 1967, and July 31, 1967, the driver’s license of Kenneth John Hites had not been suspended, and that, therefore, there was no misrepresentation in the amended declarations. While the complaint is not clear as to the effective date of the amended declarations, the exhibits attached to the complaint show in fact that their effective dates were to be August 1, 1967, and July 31, 1967. In case of a conflict between exhibits and the allegations of the complaint, the exhibits control over general allegations (Goldberg v. Valve Corp. of America, 89 Ill App2d 383, 390, 233 NE2d 85). On the effective dates of July 31, 1967, and August 1, 1967, there was no suspension of the license of Kenneth John Hites. The written amended declarations were prepared by plaintiff, and should be construed strictly against plaintiff, particularly where enforcement would cause a forfeiture of liability coverage.

Plaintiff, while admitting the effect of technical compliance with the terms of the written declarations, contends that a contract of insurance is one which the parties must enter into in “utmost good faith.” It refers to Lycoming Fire Ins. Co. v. Rubin, 79 Ill 402, at 403, where the court emphasizes that no false representations must be made which go to affect the risk; that there be no concealment. The Lycoming case involved an insurance policy as to a stock of jewelry which the insured had fraudulently overvalued. Plaintiff also cites Palmer v. Bulldog Auto Ins. Ass’n, 294 Ill 287, 128 NE 499, where an automobile which was designed to be covered was stolen before the application for transfer was approved. Similarly, in Carroll v. Preferred Risk Ins. Co., 60 Ill App2d 170, 208 NE2d 836 (affd 34 Ill2d 310, 215 NE2d 801), applicant was involved in an automobile accident before the application was processed and approved. It was held there that the policy was not in force since the insured failed to notify the company of the accident prior to the issuance of the policy.

On the basis of such cases, plaintiff asserts that there should be a rule that there was a duty on defendant Kenneth Jacob Hites, in the instant case, to notify the insurance company when his son’s driver’s license was suspended for three months by the State of Illinois. Plaintiff cites no precedent which shows the existence of any such duty and any rule requiring the insured to notify the company could only be inferred from the line of cases such as have been cited by plaintiff.

There is no Illinois case directly in point on this precise issue. In other jurisdictions, the courts have held that if the insurance company makes no inquiry and the insured has made no representations as to a fact in question, then concealment, short of actual fraud, in respect to such fact does not void the policy (Stecker v. American Home Fire Assur. Co., 299 NY 1, 84 NE2d 797, 800). In the Stecker case the court, emphasizing what it termed the “ordinary” rule in such cases, concluded that, in absence of an inquiry by the insurer, there is no obligation on the part of the insured to volunteer facts which might affect the decision of the insurer to carry the risk. This is not construed to be such “concealment” as operates to void a policy. This rule places the duty on the insurer to determine and advise the insured what information is required by the insurer before it would carry the risk or to continue to carry the risk. So far as precedents in this field are concerned, the cases have indicated that the only duty of the insured in this connection is to furnish such requested information without misrepresentation or fraud. In this State in Di Leo v. United States Fidelity & Guaranty Co., 50 Ill App2d 183, 200 NE2d 405, the court rejected the insurance company contention that policies were voided by willful concealment and misrepresentation by the insured (of pendency of a condemnation proceeding) and determined that absent any inquiry by the insurer on the point, the failure to so inform the insurer was not such “concealment” or “fraud” as would void the policies.

While it is unquestioned that parties to an insurance contract should act in good faith, it is reasonable to place the obligation and duty upon the insurance company to determine and advise the applicant or the insured, as the case may be, what information the insurance company must have before it will consider whether or not to insure the risk. Since the insured normally is a lay individual, and not particularly knowledgeable in the field of insurance risks, it seems unreasonable to impose on the insured a continuing duty to notify the insurer of any change which would materially affect the acceptance or continuation of the risk.

In the case before us, the third amended complaint obviously did not make an adequate showing of misrepresentation or of fraud. As we have indicated, the declarations speak as of their effective date and not as of the date upon which they were issued.

Accordingly, we do not believe there is a duty of the type referred to, imposed upon an insured, and that the trial judge was correct in concluding as a matter of law that no such duty existed as to Kenneth Jacob Hites. The facts in the instant case are completely different from situations where there is a loss during the period in which the application is being processed or where there has been a clear misstatement as to a material fact in an application for insurance before the insurance becomes effective. We find nothing in the policy of insurance which placed a duty upon defendant Kenneth Jacob Hites to notify the company of the driver’s license suspension for the three month period of Kenneth John Hites. Certainly, there is no continuing duty on an insured under an automobile policy to notify an insurance company of a change in circumstances that affects the risk it has assumed under the policy. If such an onerous duty were placed upon an insured, an insured could never be certain that he had coverage under the policy. It is, therefore, our conclusion that the trial court correctly granted the motion to dismiss.

The judgment of the Circuit Court of Rock Island County will, therefore, be affirmed.

Affirmed.

RYAN, P. J. and STOUDER, J., concur.


author: STOUDER, J.

text:
    People of the State of Illinois, Plaintiff-Appellee, v. John W. Young, III, Defendant-Appellant.
    Gen. No. 70-4.
    Third District.
    June 24,1970.

      John Lewarne, of Rock Island, for appellant.
    James N. DeWulf, State’s Attorney of Rock Island County, of Rock Island, for appellee.
   STOUDER, J.

In September, 1968, Defendant-Appellant, John W. Young, III, entered his plea of guilty to the offense of theft of property worth more than $150. On March 21, 1969, the Circuit Court of Rock Island County granted defendant probation for a period of five years. In July, 1969, a petition for revocation of defendant’s probation was filed and thereafter, a supplemental petition was filed in August. Pursuant to the supplemental petition, defendant’s probation was revoked on September 29, 1969, and he was sentenced to a term of from 2 to 10 years in the penitentiary. It is from such probation revocation and sentence that defendant has appealed.

The supplemental petition in its first three paragraphs alleged the execution and issuance of three separate checks on separate dates. Each check was drawn on the Citizens Bank and Trust Company of Park Bidge, Illinois, and “was not honored because the account was closed.” Paragraphs four and five of the supplemental petition alleged that defendant failed to make restitution as required by a condition of his probation.

Defendant moved to dismiss the various paragraphs of the supplemental petition. Motion was granted as to the portions of the petition relating to failure to make restitution, but was denied as to the portions of the petition relating to the dishonored checks.

In support of its petition the State presented the testimony of an Ozark Airline ticket salesman who identified the defendant as the person who had given him the first of the checks described in the petition payable to Ozark Airlines in return for a ticket. Defendant objected to the testimony of the ticket salesman in the trial court and has renewed such objection in this court, the objection being that the testimony should have been excluded because the identification was the result of unduly suggestive pretrial identification procedures. The check to Ozark Airlines was admitted into evidence as were the other two checks described in the petition. No evidence was introduced concerning identification of the party delivering the other two checks. The assistant cashier of the drawee bank testified concerning the account with his bank.

Based on the testimony of the two witnesses and the documentary exhibits, the trial court concluded that defendant had violated the terms of his probation and sentenced him to the penitentiary. A post-trial motion alleging several errors in the proceeding was filed and denied.

Defendant has made several assignments of error in this court but the only one which we believe it necessary to consider relates to the insufficiency of the evidence to prove that defendant committed a criminal offense. Although the petition for revocation of probation does not so state, there is little doubt that the criminal offense alleged to have been committed by defendant was that of deceptive practices. The gist of the offense as disclosed by the petition is that defendant executed and delivered his check to the Ozark Airline ticket salesman knowing that his account with the Citizens Trust and Savings Bank of Park Ridge had been closed.

The testimony of the assistant cashier of the drawee bank was introduced to prove that defendant’s account had been closed and that the defendant either knew or should have known of such fact. The assistant cashier testified that an account in the name of a John W. Young was opened by mail on April 22, 1969, in the Citizens Bank and Trust Company of Park Ridge, Illinois. Three checks were deposited to the account but each of the checks was returned “NSF” (not sufficient funds) and on May 12, 1969, the account was closed. Defendant objected to the testimony of this witness on the ground that it was hearsay. The objection was overruled, the court concluding that it was based on a business record.

Whether such testimony was hearsay or not is, we believe, immaterial since the testimony, even if completely accepted as true, fails to support the gist of the State’s claim. The State’s position with respect to the witness’ testimony is clearly set forth in the following statement from its brief, “Plaintiff contends that surely Mr. Gibbs, present in court with the records of the Citizens Bank pertaining to their customer, John Young, could competently testify to the fact that the defendant had no money in his account with Citizens Bank because that bank could never clear defendant’s deposit cheeks.” According to the State, this witness was competent to prove and his testimony did prove, first, that defendant’s account in the bank had been closed and second, that defendant knew of such fact. However, there is nothing in the testimony of the witness from which such facts may be inferred. The assistant cashier testified that he did not know the depositor who had opened the account. If he did not know the depositor, it follows that the assistant cashier could not know whether the defendant was such depositor and, in fact, the assistant cashier did not testify that the defendant was the depositor. Furthermore, even though the assistant cashier testified that according to the records the account was closed on May 12, 1969, he gave no testimony to the effect that anyone was ever notified that the account was closed. Indeed, it does not even appear that the address listed on the account was that of the defendant.

On the basis of such testimony, there is nothing in the record from which it may be inferred that defendant had an account in the Citizens Bank which he knew had been closed.

A defendant granted probation is entitled to have the question of the violation of the terms of probation determined in accord with generally accepted legal principles. People v. Price, 24 Ill App2d 364, 164 NE2d 528. Since the result of probation revocation may be deprivation of liberty, the determination that defendant has violated a condition of his probation cannot rest on suspicion or speculation. People v. Dwyer, 57 Ill App2d 343, 206 NE2d 113. The State having failed to present any evidence regarding an essential element of its case, we are required to hold that defendant has not been shown to have committed a criminal offense in violation of the terms of his probation.

For the foregoing reasons the judgment of the Circuit Court of Rock Island County is reversed and the sentence vacated.

Judgment reversed and sentence vacated.

RYAN, P. J. and ALLOY, J., concur.