author: MR. JUSTICE SEIDENFELD

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Lino Gonzales and Oscar Mata, Defendants-Appelants.
    Gen. Nos. 69-205, 69-206. (Consolidated.)
    Second District.
    July 2,1970.

      Eugene G. Griffin, of Aurora, for appellants.
    William Ketcham, State’s Attorney of Kane County, of Geneva, and W. Ben Morgan, of Elgin, for appellee.

       See CaMagliam^g Illinois ¡Digest, same topic and. section nnmTber.

   MR. JUSTICE SEIDENFELD

delivered the opinion of the court.

Defendants appeal from judgments of conviction for the unlawful sale of narcotics, based upon a jury verdict rendered in a trial consolidated by stipulation. Each defendant was sentenced to not less than ten nor more than eleven years in the penitentiary.

The principal issue raised is a claim of entrapment. (Ill Rev Stats 1967, c 38, § 7-12.) Defendants also claim error in the failure to afford them a preliminary hearing; in the refusal of a tendered instruction bearing on the effect of the failure of the State to call an informer as a witness; and in the denial of a motion for a new trial based upon alleged newly discovered evidence.

The fact of sale of marijuana by defendants on December 16th, 1968, is not disputed. The defense of entrapment is based upon claimed activities of one Nicholas Cadena, an informer in the service of the State.

From the testimony of defendants it was adduced that the defendant Oscar Mata had made a trip to Texas in July of 1968, and had there picked and returned with approximately six pounds of marijuana for the common supply of both defendants. From time to time, the defendants had smoked marijuana in the presence of each other, but had not given or permitted anyone else access to the supply.

Lino Gonzales testified that he and his wife customarily attended dances sponsored on behalf of a Spanish speaking community in Aurora by Cadena. He stated that on these occasions Cadena would frequently approach defendants with inquiries about possible sources of marijuana available for sale. Defendants said that they did, on each of some three occasions, refuse to discuss the matter. In one instance Cadena allegedly gave Gonzales a marijuana cigarette to smoke. Mata testified that on one occasion he had been asked by Cadena to go to Texas to procure marijuana for him, but that he also refused.

Gonzales testified that on December 16th, 1968, without prearrangement, Cadena and one Kenneth Cloud, a government narcotics agent, drove to his home; that Cloud remained in the car and Cadena approached Gonzales to again discuss purchasing marijuana, and that he refused to enter into the discussion; that Cadena advised him that a “new car” and “money in your pocket” was available if he would consider engaging in marijuana sales. It appeared that Gonzales was a factory worker supporting himself, his wife and six children on $92 a week, and lived in a substandard dwelling. At this suggestion, on December 16th Gonzales proceeded to the car in which Cloud was waiting. While in the automobile, Cadena introduced Cloud as a narcotics peddler and allegedly advised defendant in Spanish that a “house and car” were available for him by trafficking in marijuana.

The three persons proceeded to defendant Mata’s home. There Cadena offered to purchase the remainder of the supply for $80 a pound. Mata refused this offer, but Cadena made various counteroffers and a price was agreed upon. The defendants divided the money.

Cloud testified for the State. He related that he, with agents Jordan and Nolan, drove to Aurora on December 16th. The three met Cadena. They knew him as an informer who had given information to the State’s Attorney. Only Jordan had seen Cadena before. Cadena was not a government agent and received no compensation for services in the matter. They searched Cadena for money or marijuana, marked $600 in bills which the agents retained for the possible purchase of marijuana. Cloud drove an unmarked government car to the home of the defendant Gonzales with Cadena as his passenger; the other agents followed in another car. There Cadena went to Gonzales’ residence and brought him out to the car. Cloud and Cadena were in the front seat, Gonzales in the rear. Cadena introduced Cloud to Gonzales and Cloud gave his name as “Chuck” and said he trafficked in marijuana for resale in Chicago and was interested in good marijuana for resale.

Cloud testified that Gonzales then responded, “Okay. First let’s go see Oscar.” The three drove to where Mata was working on his car. Gonzales called to Mata who then got in the back seat with him. The offer to purchase marijuana was made by Cloud to Mata. Mata left and returned from his home with a sample in an envelope which he gave to Cloud. The defendants talked to each other, partly in Spanish, partly in English, until they finally agreed on the price. Cloud admitted that he did not understand Spanish.

The defendants drove away in Mata’s car and returned after a short interval and drove alongside Cloud, facing in the same direction. Through the open windows of the cars Gonzales handed Cloud a grocery bag containing the marijuana and Cloud handed Gonzales $400 in marked funds which Gonzales, in turn, handed to Mata. Cloud testified that he did not see the defendants thereafter until the trial.

Agents Jordan and Nolan testified to seeing the delivery of the marijuana and exchange of the money in corroboration of Cloud’s testimony. Nolan testified that he followed defendants to a cafe and went in alone to observe them.

The testimony of defendants relating to the delivery of the marijuana and subsequent events conflicted with the State’s testimony in numerous respects. Defendants testified that Cadena was driving his car and Cloud was the passenger; that Cadena turned over $500 before defendants drove away to get the marijuana; that Cadena had only the $400 and secured the additional $100 from Cloud; that they met Cloud later at a cafe and gave him back $160 because he complained of the quality of the marijuana. Defendant Mata testified that he drove alongside of the car in which Cadena was driving but in the opposite direction, and that he handed the grocery bag to Gonzales who handed it across to the other car, directly to Cloud in the passenger seat.

Defendants argue that the mere possession and use of narcotics by defendants without more did not constitute evidence of a predisposition to sell narcotics; therefore, that the origin of the sale was to be found in the persuasions and inducements offered by the informant Cadena and by the government agents. They urge that, having offered the affirmative defense of entrapment, the State then had the burden of proof and that it failed to negate the defense beyond a reasonable doubt. The failure to call the informer as a witness is suggested as a significant factor in the alleged failure of the State’s proof.

The entrapment defense has been codified in general language in Ill Rev Stats 1967, c 38, § 7-12:

“A person is not guilty of an offense if his conduct is incited or induced by a public officer or employee, or agent of either, for the purpose of obtaining evidence for the prosecution of such person. However, this Section is inapplicable if a public officer or employee, or agent of either, merely affords to such person the opportunity or facility for committing an offense in furtherance of a criminal purpose which such person has originated.”

Where it appears that law officers or their, agents have conceived and planned a criminal offense and have incited, induced, instigated or lured an accused into committing an offense, which he otherwise would not have committed and had no intention of committing, the defense is established. Entrapment is not available to one who has the intention and design to commit the criminal offense, and who does commit the essential acts constituting it, merely because a law officer or his agents, for the purpose of securing evidence, affords such person the opportunity to commit the act, or purposely aids and encourages a defendant in its perpetration. The People v. Hall, 25 Ill2d 297, 300, 185 NE2d 143 (1962); The People v. Outten, 13 Ill2d 21, 23, 147 NE2d 284 (1958); The People v. Wells, 25 Ill2d 146, 149, 182 NE2d 689 (1962). The law distinguishes between a trap for the unwary criminal and a trap set to ensnare the innocent and law-abiding into the commission of a crime. Sherman v. United States, 356 US 369 (1958); The People v. Out-ten, supra, at page 24. When the defense is invoked, predisposition and criminal design become relevant, (see The People v. Outten, supra, at page 25). But, although a defendant has no prior criminal record, this factor alone cannot overcome evidence of his ability and instant willingness to make the unlawful sale as soon as the opportunity to do so is presented. The People v. Gonzales, 25 Ill2d 235, 239,184 NE2d 833 (1962).

On this record we conclude that the testimony of the witnesses for the State established beyond a reasonable doubt a willing sale, with no overbearing persuasion on the part of the agents, except the suggestion of what the purchase money could buy. The only reluctance displayed at the particular time of the admitted sale related to the price to be paid. This evidence showed that defendants were ready to make the unlawful sale and had quick access to a substantial quantity of narcotics. This established the criminal design in the minds of the defendants resulting in the acceptance of the opportunity offered, thus negating the defense of entrapment. See People v. Hatch, 49 Ill App2d 177, 185, 186, 199 NE2d 81 (1964); People v. Brown, 95 Ill App2d 66, 70, 238 NE2d 102 (1968).

The jury was not required to believe the testimony of defendants relating to the previous conversations with Cadena, even under the doubtful assumption that this evidence of previous reluctance to commit the crime would be sufficient to create a reasonable doubt relative to the defense of entrapment. The issue being one of credibility was properly submitted to the jury. See The People v. Gonzales, supra, page 239. See also United States v. Aulet, 339 F2d 934, 936 (CA 7th .1965); United States v. Armstrong, 339 F2d 1015, 1017,1018 (CA 7th 1964).

The fact that an informer, who was alleged to have induced an accused to commit the offense, is not called as a witness to rebut a defendant’s testimony also raises an issue of credibility for the determination of the trier of the facts and does not establish an entrapment defense as a matter of law. United States v. Armstrong, supra, at page 1017; Masciale v. United States, 356 US 386, 388 (1958); United States v. Thomas, 351 F2d 538, 539 (CA 2nd 1965).

Defendant relies principally on The People v. Strong, 21 Ill2d 320, 172 NE2d 765 (1961); People v. Jones, 73 Ill App2d 55, 219 NE2d 12 (1966) and People v. Lewis, 80 Ill App2d 101, 224 NE2d 647 (1967) for the proposition that where crucial elements of the State’s case depend upon the work of an informer, he must be called upon to controvert the testimony of the defendant intending to prove entrapment. The cases are distinguishable on the facts in that in both Strong and Jones the holdings were based upon unrebutted testimony that the narcotics were supplied by informers acting as agents of the State. Lewis has no application on the facts.

The next contention of the defendants, that they were entitled to a preliminary hearing, is without merit under the circumstances of this case. This claim of error is based upon the provisions of Ill Rev Stats 1967, c 38, § 111-2, and relies also upon The People v. Petruso, 35 Ill2d 578, 221 NE2d 276 (1966) and The People v. Bonner, 37 Ill2d 553, 229 NE2d 527 (1967). However, Petruso holds that there is no constitutional or statutory right to a preliminary hearing, and establishes the rule that, in the absence of a showing of prejudice, a conviction will not be reversed for failure to afford a defendant a preliminary hearing. Bonner held that there is no constitutional right to a preliminary hearing and that it is not a critical stage in the proceedings, so that failure to appoint counsel at such hearing is not error except where the denial of counsel infects a subsequent trial with fundamental unfairness.

Here, the stipulated facts are that a preliminary hearing was set for February 28th, 1969, that a continuance of the date for the hearing until March 7th, 1969, was granted by the presiding Magistrate over defendants’ objection, and that in the interval defendants were indicted. This is not a showing of prejudice nor of fundamental unfairness which could be said to have infected the trial.

The defendants were tried upon an indictment which contained full information concerning the crime charged, and a preliminary hearing under the circumstances of this case was not required nor necessary. The People v. Jones, 9 Ill2d 481, 482, 138 NE2d 522 (1956); People v. Rinks, 80 Ill App2d 152, 158, 224 NE2d 229 (1967).

Defendants also argue that the court committed reversible error in refusing an instruction tendered by them relating to the failure of the State to call the informer Cadena as a witness. The instruction as tendered read: “If the jury finds that NICK CADENA was available as a witness for the prosecution but not for the defendants, and is satisfied that diligent effort has not been made to find him by the prosecution, they may presume that the testimony of such witness would be against the prosecution.”

The State is not obligated to call every witness to crime, including an informer, but the unexplained failure to do so under some circumstances may give rise to an inference against the State. The People v. Strong, 21 Ill2d 320, 325, 172 NE2d 765 (1961); The People v. Aldridge, 19 Ill2d 176, 180, 166 NE2d 563 (1960); The People v. Jones, 30 Ill2d 186, 190, 195 NE2d 698 (1964). The People, however, may accept the risk of unexplained absence of a witness so long as the offense is otherwise proved. The People v. McElroy, 30 Ill2d 286, 290, 196 NE2d 651 (1964). An accused has the right, of course, to comment on the unexplained absence of a witness. The People v. Scott, 38 Ill2d 302, 306, 231 NE2d 441 (1967).

The particular form of the instruction tendered by the defendant was apparently based on a form which would be applicable to civil cases and which did not enunciate the rule set forth in the cited criminal cases. No evidence was presented in the record upon which the jury could determine the qualifications stated in the instruction. In closing argument, defendants’ counsel argued extensively and without objection the unfavorable inference to be drawn from the State’s failure to call Cadena as a witness.

Under this combination of facts there was no prejudice sufficient to require reversal in the refusal of the instruction.

The final claim of error based upon the denial of defendant Gonzales’ motion for a new trial alleging newly discovered evidence, is also without merit. At the post-trial hearing, Gonzales stated that he had “blood on the brain” and “attacks.” His wife testified that he was not the same after an automobile accident in 1965 which was some years prior to the trial and, in her opinion, due to the accident he could not fully understand the questions asked of him; that he has epilepsy and that the condition has affected his eyes. Mrs. Gonzales stated that she had not told the interpreter used in the trial, nor trial counsel, of this. Trial counsel stated that he did not learn of these circumstances until after the trial. The court examined the defendant and it was brought out that the defendant had held numerous jobs and had passed physical examinations for factory work in the intervening time. The court further noted that he had observed the defendant throughout the trial and had noticed no impairment of Gonzales’ mental capacity.

The denial of the motion for a new trial was not in error, applying the standards set forth in The People v. Dukes, 19 Ill2d 532, 538, 539, 169 NE2d 84 (1960).

We find no reversible error in this case and affirm the judgments below.

Affirmed.

ABRAHAMSON and MORAN, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Paul McElroy, Defendant-Appellant.
    Gen. No. 69-220.
    Second District.
    July 2,1970.

      Robert P. Will, Jr., Public Defender of Lake County, of Zion, and Charles F. Scott, of Waukegan, for appellant.
    Jack Hoogasian, State’s Attorney of Lake County, of Waukegan, and Alphonse F. Witt, Assistant State’s Attorney, for appellee.
   MR. JUSTICE SEIDENFELD

delivered the opinion of the court.

Paul McElroy entered a plea of guilty to an information charging burglary. He appeals from the judgment of conviction entered on his plea and the resulting sentence of 3 to 15 years in the penitentiary.

Defendant claims that the record does not sustain a knowing plea; that the circumstances placed a duty upon the court to inquire into defendant’s competence; and that the sentence is excessive.

From the record it appears that the defendant, with the assistant public defender, first appeared before the judge who arraigned him on December 27th, 1968, and after having been admonished fully, waived presentment to a grand jury and consented to the filing of an information. A plea of not guilty was entered. The public defender advised the court at this time that the defendant had a history at “several hospitals in the state.” The matter was continued to give the defender the necessary time for investigation.

On February 3rd, 1969, upon defendant’s motion, made before the motion judge, an order was entered for a competency hearing and two psychiatrists were appointed to examine the defendant.

On March 3rd, 1969, an order was entered reflecting that defendant had withdrawn his motion for a competency hearing and was withdrawing his plea of not guilty and pleading guilty. No judgment was entered on the plea, and the proceedings were continued to March 6th, 1969.

On March 6th, the defendant appeared before Judge L. Eric Carey, who had not presided over the previous court appearances of defendant. The public defender advised the court that the plea had not been accepted on the earlier appearance because defendant had a sore throat, a hernia, and chest pains.

The court then inquired of the public defender as to defendant’s ability to plead and was advised that the defendant had that ability, and desired to change Ms plea to guilty. The court then inquired directly of the defendant at great length. He asked whether the defendant felt “sufficiently well in all regards, physically, mentally, nervously, in all directions,” to enter a plea. When the defendant answered, “If you say so, yes, sir,” the court pursued the matter, stating that this was a question which he wanted the defendant to answer. Defendant responded with a categorical “Yes.” The court further pursued the matter, asking whether there was any question in the defendant’s mind, and restated the inquiry. Defendant interrupted the court’s question and the following colloquy ensued:

Mr. McElroy: “Physically able to plead guilty, yes, sir.”
The Court: “And in all other directions ?”
Mr. McElroy: “Mentally and emotionally I cannot say. I am not a doctor to say.”
The Court: “I understand that.”
Mr. McElroy: “Physically there is nothing wrong with me. At this time.”
The Court: “The average citizen who appears here and is charged with an offense such as burglary, there is no doubt and he expresses no doubt that he is able to make up his mind and plead guilty or not guilty, and there is no question physically, mentally, emotionally, or anything else about him. Now, you have almost raised a doubt. You said physically you feel that you are sufficiently able to enter a plea. You have left open other areas. I do not mean to indicate that I don’t believe you are able, emotionally, nervously, or some other direction, but do you mean to raise a doubt along other lines about your ability to voluntarily, on your own free will and accord, make up your mind on this point?”
Mr. McElroy: “I don’t follow you.”
The Court: “Well, do you have any doubts about your ability as you stand here now?”
Mr. McElroy: “My mental ability ?”
The Court: “Everything about you. Everything about you. Are you able to make up your mind today whether you want to plead guilty or not guilty?”
Mr. McElroy: “I want to get it over with, that’s all.”
The Court: “I understand. You want to get it over with. Sir, are you guilty or not guilty?”
Mr. McElroy: “I guess I’m guilty.”
The Court: “You guess you are guilty. I am not trying to press you against the wall or to force you to say something. I want you to say it voluntarily. You are standing here in Court and I do not want you to be nervous about it. Before I finish, I am going to ask you again, are you doing this voluntarily of your own free will and I will ask you a few more questions, but when you say T guess’ that is not quite good enough for me.”

At this point the public defender interrupted to suggest that a plea of guilty not be entered and that the case be set for a trial date. The defendant then stated that “I am pleading guilty.”

The assistant state’s attorney explained to the court that there had been a petition “for a Section 104” but that it had been withdrawn. Whereupon the court stated,

The Court: “Well, I have seen nothing or observed nothing about Mr. McElroy that indicates that the Court has a duty itself to order a trial under Section 104.”

The public defender then stated that he had a report, and the court replied, “Let’s not go into it.” However, the public defender then stated that both of the reports of the appointed psychiatrists were filed and concluded that the defendant was competent. Based on these opinions the public defender stated that the motion for a competency hearing had been withdrawn and defendant then expressed a wish to change his plea.

The court read the charge and defendant again stated “Plead guilty.” The court then advised defendant that when he pleaded guilty he gave up the right to trial. The defendant responded that he understood he would be “tried by a judge.” The court patiently explained that he would not be tried by a judge as to his guilt, and the defendant after a short colloquy answered that he understood. The court continued with the admonition as to the penalty, and received negative answers to his inquiry as to promises of leniency or threats before finally accepting the plea.

Defendant’s principal argument is that the trial court should have, on his own motion, conducted a hearing on defendant’s competency. He argues that if this had been done it would have appeared that defendant had twice attempted his life in the county jail prior to changing his plea, and had previously attempted his life in January of 1969. Additionally, counsel for defendant states that the defendant had tried to hang himself subsequent to his plea of guilty and that the defendant had been in mental institutions on five different occasions.

We cannot say that a bona fide doubt of defendant’s competency which would require the court on its own motion to reinstate a hearing under section 104 (Ill Rev Stats 1967, c 38, § 104-2), was raised by this record. It is entirely clear from the record that defendant comprehended the charges against him and was able to cooperate with counsel in his defense. He displayed no lack of intelligence and was no stranger to criminal procedure. The fact that he did not agree with his counsel’s suggestion that he proceed to trial on a plea of not guilty, does not suggest to us an inability to cooperate. Defendant’s answers to questions propounded to him, both at the hearing on his plea and in the presentence hearing, were rational and orderly and do not suggest any lack of capacity to understand or to cooperate with counsel.

Defendant’s first confusion as to the giving up of a “trial by a judge,” does not suggest a lack of a knowing waiver of his rights. When the court carefully pointed out that there would be no trial at all on the question of guilt, the defendant clearly answered to his understanding.

If a defendant does understand the nature and object of the charges against him and can cooperate with counsel in a rational and reasonable manner, he is competent to stand trial, although upon other subjects his mind may be unsound. Withers v. The People, 23 Ill2d 181, 135, 177 NE2d 203 (1961). While a defendant may possess a sociopathic personality and suffer from psychological and social disturbances, these circumstances without more are not sufficient to raise a bona fide doubt as to his competence. The People v. Hammond, 45 Ill2d 269, 259 NE2d 44. It has been recently held that the mere referral of a defendant’s case to a Behavior Clinic, cannot, in itself, be considered reason for granting an unrequested competency hearing. See The People v. Korycki, 45 Ill2d 87, 256 NE2d 798.

Here the fact that defendant withdrew his request for a competency hearing after the two appointed psychiatrists had admittedly found him able to comprehend the charges against him and to cooperate with counsel, even more strongly militates against any notion of abuse of discretion. See also The People v. Cleggett, 22 Ill2d 471, 474, 177 NE2d 187 (1961); and The People v. Baker, 26 Ill2d 484, 488, 489, 490, 187 NE2d 227 (1962).

The circumstances present in this case distinguish it from The People v. DeSimone, 28 Ill2d 72, 76, 190 NE2d 831 (1963); The People v. Baxton, 10 Ill2d 295, 298, 139 NE2d 754 (1957); and The People v. McLain, 37 Ill2d 173, 179, 226 NE2d 21 (1967), cited by the defendant in support of the proposition that the court had the duty to order a competency hearing even though no request was made by the defendant when he pleaded guilty.

In DeSimone, the defendant was in the custody of a mental institution on a judicially ordered commitment, there was no lengthy questioning of the defendant on the subject of his competency, and the answers of the defendant at his plea hearing were “disconnected, incoherent and in general, unintelligible.” Likewise, in McLain, the defendant was brought immediately from mental confinement to arraignment, and no inquiry was conducted as to his capacity. The plea here was accepted after the motion for a competency hearing had been granted and voluntarily withdrawn by defendant after the psychiatric reports indicated his competency to stand trial, and the plea was understandably received within the rule of Baxton.

Boykin v. Alabama, 395 US 238 (1969) is clearly distinguishable in view of the full record here which fairly shows an understanding plea as opposed to the “silent record” found in Boykin.

Defendant has also requested that his sentence be reduced. Judge Harry Strouse pronounced sentence after a full hearing in which all aspects of defendant’s prior record, the defendant’s personality problems, and the many previous attempts at institutional rehabilitation, were carefully evaluated. The wide range chosen by the court between the relatively light minimum sentence of three years and the maximum sentence of fifteen years was selected within the framework of a reasoned and humane consideration of the proper balance between the protection of society and the rehabilitation potential of the defendant. The court, in effect, concluded that the parole board could best perform its function of predicting the degree of rehabilitation of defendant after the minimum sentence. So conceived, the penalty was not a departure from the fundamental law and its spirit and purpose. The People v. Smith, 14 Ill2d 95, 98, 150 NE2d 815 (1958). While defendant argues that the rehabilitation process in the penitentiary has been illusory, this is not an argument which we can at this time judicially accept. However, we join in the recommendation of the sentencing judge that the defendant be psychologically evaluated and be given all available help to support his professed desire to be rehabilitated.

The judgment below is affirmed.

Affirmed.

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

       Defendant testified in connection with a hearing in aggravation and mitigation and on his motion for probation that after he had been previously sentenced to the penitentiary for theft, he had been transferred from Joliet to Menard Psychiatric Division where he remained from December 3rd, 1963 to December 4th, 1964, but received no treatment; that he was in Chicago State Hospital in February or March of 1961 for 28 days; and there again in August of 1962 for 28 days; that he was at the Elgin State Hospital for 7 months in 1963, and in Kankakee for a month in 1964, receiving only medication on each occasion. It appears from the record that the attendance at these institutions followed arrests in which there were no disposition of the charges. Defendant also stated that he was voluntarily admitted to Manteno State Hospital in January of 1965 for approximately a month and nothing was done for him so he “just walked off.” He stated that his diagnosis at each hospital was “paranoid and schizophrenia, suicidal.” He considered that his problem was with barbiturates.

       Defendant was arrested as a juvenile in 1953 or 1954 for running away from home. In 1954, he was arrested for shoplifting. In 1957, he was arrested for shoplifting and was sent to the Illinois Youth Commission as a result. After serving six weeks he broke parole by running away. In February 1961, he was arrested for stealing an automobile and placed under one year’s supervision. In April 1961, he was given three months at the house of correction for criminal trespass to a motor vehicle. In August 1961, he was sentenced to six months in the house of correction for criminal trespass to a building. In January 1962, he was arrested for criminal trespass to a motor vehicle. In June 1962, he was arrested for criminal trespass to a motor vehicle and again in December of 1962 or January of 1963 he was arrested for criminal trespass to a motor vehicle. In May or June of 1962, he was sentenced to the Illinois State Penitentiary for one year and a day for the offense of criminal trespass to a motor vehicle. In October of 1964, he was arrested for criminal trespass to a motor vehicle. In May 1966, he was sentenced to one year in the Cook County jail for criminal trespass to a motor vehicle. In August 1966, he committed the offense of burglary and was sentenced to serve one to two years in the Illinois State Penitentiary.


author: SMITH, J.

text:
    John D. Howell, Plaintiff-Appellant, v. Wilburn Briney and Homer Briney, Defendants-Appellees.
    Gen. No. 11,167.
    Fourth District.
    July 13,1970.
    Pollock, Ennis and O’Connell, of Quincy, for appellant.
    Gillespie, Burke and Gillespie, of Springfield, for appellees.
   SMITH, J.

The trial court vacated a judgment in favor of the plaintiff for $37,840 awarded as damages for personal injuries to the plaintiff. Judgment n. o. v. for the defendants was entered, and this appeal followed. The sole issue is the correctness of the trial court’s determination that the plaintiff was guilty of contributory negligence as a matter of law.

The plaintiff was twenty-two years old and had been employed as a farmhand for six years. On the day in question, he and a fellow employee by the name of Thompson were to use some mechanized equipment to load a truck with corn from a bin. This was accomplished by sticking one end of an auger in a door on the side of the bin and connecting it to a power takeoff on a tractor. The door was about five feet by two and one-half feet in size. The bin was about eighteen feet in diameter and the auger was not quite directly perpendicular. The auger at the outside end was connected with a rotating universal joint on the tractor. The tractor was to the right of the auger and the door of the bin when' one faced the bin door. One truck had been loaded and plaintiff removed it and drove another truck in under the auger or elevator. In the meantime, his fellow employee, Elmer Thompson, went around on the other side of the auger and entered the bin for the purpose of scooping the grain down so that the auger could reach it. Plaintiff started the tractor and put the equipment into motion. He then put his left foot over the auger and on one of the rings of the bin, stuck his head in the door and swung his right leg around behind him. His overalls caught in the universal joint which was then moving at 500 revolutions per minute and caused severe injury to his leg, which was and is permanent.

In the face of these facts, we now examine the conduct of the plaintiff to determine whether or not there is any evidence that would support the conclusion that he was in the exercise of due care and caution for his own safety. We recognize the old cliche that ordinarily this is a question of fact for the jury. Nevertheless, every witness who testified on either side concerning this event testified that a revolving universal joint was dangerous. The plaintiff’s father-in-law so testified. The plaintiff’s fellow employee, Thompson, stated that “I was on the other side of the power takeoff when I went into the bin and not on the side that the power takeoff was on. ... I knew as well as John [plaintiff] that you should stay away from the universal joint when the power takeoff was on. It is something that you always watch for or should watch for.” The father-in-law testified “The universal joint that is moving would look like a smooth spinning wheel or a revolving object. It would be obvious to a person if he’s looking at it. One who has worked around the power takeoff unit from the auger to the tractor should not get close to the universal joint in operation if it can be avoided. That is one of the first things anyone learns working with equipment.” The plaintiff testified “I knew the universal joint when it was in operation and not covered by the shield was dangerous. That was why that bell-shaped shield was on there . . . there wasn’t anything wrong with this equipment insofar as the operation that, [sic] the auger or the shaft or the shield or the power takeoff that I observed that day. It was all operating and looked like it was a normal alignment. ... I have worked around power takeoffs before, including the same auger and power takeoff.” Question: “And you knew you shouldn’t go through the part which was exposed, the flexible part, did you not, because it was dangerous?” Answer: “I knew that was dangerous, yes.” Question: “I mean you saw it moving around, didn’t you, the shaft?” Answer: “Yes.”

In this state of the record, we find it difficult to reach any conclusion except that we deal with a piece of equipment which was dangerous and hazardous and that those facts were known to all parties concerned, including the plaintiff. We would note his fellow employee did not use the method employed by the plaintiff in getting into the bin. He went around on the other side while the equipment was stopped to get into the bin. The cold, blunt fact, therefore, remains that when this plaintiff swung his leg over this universal joint he negligently, carelessly and thoughtlessly swung it over the universal joint which was known to him to be dangerous. We have considerable difficulty in distinguishing this case from Wills v. Paul, 24 Ill App2d 417, 164 NE2d 631, where a plaintiff pulled off his gloves, reached for a cornstalk with the corn picker in operation and Ms hand became entangled in the machinery, and where it was held that the plaintiff was not in the exercise of due care and caution as a matter of law, or from Frei v. Frei, 263 Wis 430, 57 NW2d 731, where the plaintiff while following an accepted practice in loading a truck from a storage bin by closing a door with a pick, slipped on some grain and his foot became entangled in a moving auger, and it was held that he assumed the risk and could not recover. A series of like cases is collected in 67 ALR2d 1232. In Ferguson v. Lounsberry, 58 Ill App2d 456, 207 NE2d 309, the plaintiff reached back and caught his sleeve in the corn dump while it was in operation and was seriously injured. In that case we stated, “We think all minds would reasonably agree that a square shaft and a knuckle revolving at a rate in excess of 500 revolutions a minute telegraphed to one with even less expertise than the plaintiff that it was an area of danger.” This record is conclusive of the fact that this revolving universal joint was a source of danger and such danger was known to all parties. Notwithstanding this fact, the plaintiff elected to swing his overall-covered leg over a universal joint and it became entangled. Paraphrasing Ferguson, we do not facetiously say that the universal joint did not reach up and grab the plaintiff, but that his was the affirmative and voluntary action which brought about the contact and his injury. These facts are not disputed. No one directed the plaintiff as to how he should enter the bin. He selected his own method and elected to climb over equipment known to him to be dangerous. The danger was not hidden as it was in Fosen v. Odell Grain & Coal Co., 70 Ill App2d 384, 217 NE2d 126. The method employed by the plaintiff in entering the bin was not the only way to perform his act as it was in Stone v. Guthrie, 14 Ill App2d 137, 144 NE2d 165. As a matter of fact, in the instant case, his fellow employee, Thompson, entered the bin without incident, without difficulty and without exposing himself to danger. Like conduct on the plaintiff’s part would have avoided tragedy. He elected otherwise. The consequences arising, however, from his carelessness does not require these defendants to respond in damages where but for that error in carelessness there would have been no damage. There are no disputed questions of fact bearing on the issue which we here discuss.

Accordingly, the trial court was correct in entering a judgment n. o. v. in favor of the defendants and that judgment is affirmed.

Affirmed.

CRAVEN, P. J. and TRAPP, J., concur.


author: JUSTICE THOMAS J. MORAN

text:
    Carolyn R. West, Plaintiff and Counterdefendant-Appellee, v. Eugene B. West, Defendant and Counterplaintiff-Appellant.
    Gen. No. 69-161.
    Second District.
    June 9,1970.
    Albert A. Brown, of Chicago, for appellant.
    Eugene A. French and John J. Henderson, of Chicago, for appellee.
   JUSTICE THOMAS J. MORAN

delivered the opinion of the court.

This appeal, brought by the defendant, is from an order denying his petition seeking custody of the minor child of the parties.

On August 14, 1968, after a complaint for divorce was filed, an order was entered granting temporary custody of the minor child to the plaintiff. The order also granted the plaintiff permission to remove the child from the jurisdiction, provided the child would be returned on September 30, 1968. The plaintiff failed to return the child and on October 31, 1968, was found to be in contempt of court.

On December 18, 1968, a trial was had on the defendant’s counterclaim for divorce which resulted in his being granted a divorce and custody of their child. The defendant went to Colorado, where the plaintiff and child were residing and, on January 6,1969, the parties entered into a written stipulation relative to the custody of the child. On January 9,1969, the trial court entered an order based upon the stipulation.

On April 7, 1969, the defendant filed a petition seeking to modify this last order as it pertained to the custody provisions. On June 24, 1969, a hearing on the petition concluded with an order granting the plaintiff custody of the child and, further, provided that the defendant was to turn the child over to the plaintiff forthwith. Arrangements between the parties were made whereby the plaintiff was to pick up the child at the defendant’s home. When she arrived to do so, she was informed by the defendant’s father that the defendant and child were gone and that he had no knowledge as to when they would return.

On June 27, 1969, the trial court entered an order holding the defendant in contempt and allowed the issuance of a writ of attachment. Subsequently, a notice of appeal was filed from the order of June 24, 1969. After the defendant filed his briefs herein, the plaintiff filed a motion to dismiss the appeal based upon the defendant’s failure to purge himself of contempt of court. Objections were filed which claimed the plaintiff was not diligent in filing of the motion and further that the order holding her in contempt was still in force. The motion and objections were ordered taken with the case.

It is a fact that, earlier in these proceedings, the plaintiff had been found in contempt of court for failure to return the child to this jurisdiction on September 30, 1968, and that the order has never been vacated. However, it is also a fact that within days after the defendant was first given sole custody of the youngster by the decree of divorce, he traveled to Colorado where the plaintiff and child were residing, entered into a stipulation which allowed him only partial custody and returned with the child. From that time, until the present, he has had custody of the child of the parties. During oral argument, defendant’s counsel, upon inquiry, informed this Court that he did not know the whereabouts of his client or the child.

We are of the opinion that the objections filed against the motion to dismiss this appeal are insufficient to conclude that the motion should be denied.

We do conclude, and it is hereby ordered, that this appeal will be dismissed without further opinion, unless within thirty days after the date of filing of this opinion, the defendant files in this Court an additional record showing that he has, in his own proper person, appeared in the trial court and has turned the custody of Tammie West, the minor child of the parties hereto, over to the plaintiff. See, Burns v. Burns, 35 Ill App2d 34, 42, 181 NE2d 605 (1962).

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


author: STOUDER, J. ALLOY, J., RYAN, P. J.,

text:
    The Grundy County National Bank, Plaintiff-Appellee, v. Beth Westfall, Defendant-Appellant.
    Gen. No. 69-58.
    Third District.
    July 6,1970.
    Rehearing denied July 30,1970.

      RYAN, P. J. dissenting.

      Dunn and Hayes, of Morris, for appellant.
    Black and Black, of Morris, for appellee.
   STOUDER, J.

This is an appeal from a judgment of the Circuit Court of Grundy County denying the motion of Beth Westfall, Defendant-Appellant, to vacate and open up a judgment by confession entered in favor of Grundy County National Bank, Plaintiff-Appellee.

As it appears from affidavits and other documentary exhibits, prior to 1963, John Westfall and Beth, his wife, the defendant in this action, carried on a farm enterprise in Grundy County. The farm was leased from Beth Westfall’s mother, who had a life estate therein, the remainder going to Beth Westfall. Receipts from the farm were deposited in a joint account in plaintiff bank and prior to 1963 defendant had made occasional withdrawals for farm purposes and had joined with her husband in borrowing money from plaintiff.

On October 21, 1963, at the request of her husband, Beth Westfall signed a loan guaranty agreement which was delivered by her husband to the plaintiff. Thereafter, the bank made loans to John Westfall on his signature alone and in 1967, made loans to him represented by judgment notes in the amount of $46,226.51. The farming business did not prosper in 1967 and on November 20, 1967, plaintiff secured a judgment by confession in the Circuit Court of Grundy County against John Westfall in the total amount of $50,815.33. On November 21, 1967, plaintiff secured a judgment by confession against Beth Westfall, defendant in this case, for a like amount based on the guaranty agreement and the warrant of attorney contained therein. It is the circumstances surrounding the execution of the guaranty agreement, as well as the effect of such circumstances and provisions of the instrument itself, which form the basis of this controversy.

It is undisputed that Beth Westfall signed the printed form of loan guaranty agreement in October 1963 and it is also undisputed that except for her signature, the blanks were not filled in, either at the time she signed it, delivered it to her husband, or when it was received by the bank. The blanks which were not filled in included the date, the name of the debtor, the name of the bank and the limitation of extent of liability assumed. In their depositions which were included with defendant’s motion, two officials of the plaintiff stated that the blanks were completed in October, 1967, about one month prior to the date of the judgment.

Defendant amended her motion to vacate the judgment by confession by pleading an affirmative defense, namely, that in February, 1968, an agreement had been entered into between plaintiff and defendant’s husband, which according to defendant, was a release of the obligation. Copy of the agreement was attached as an exhibit. Plaintiff admitted the execution of the agreement, but in its motion in opposition thereto, contended that the agreement was not a release.

Plaintiff argues the judgment by confession is void because the warrant of attorney contained in the guaranty agreement was invalid. In particular, the defendant argues the warrant of attorney is uncertain and indefinite and further, that it requires resort to facts dehors the instrument to determine its application. Consequently, according to defendant, the warrant of attorney confers no authority to confess the judgments sought by plaintiff.

A warrant or power of attorney contained in a written document is like any other provision of the document, in that the intention of the parties governs its construction and application. Holmes v. Parker, 125 Ill 478, 17 NE 759 and First Nat. Bank of Elgin v. Husted, 57 Ill App2d 227, 205 NE2d 780. As a rule of construction it was early indicated that the warrant of attorney ought to be clearly given and strictly pursued. Frye v. Jones, 78 Ill 627. With respect to the aforementioned rule of construction, Holmes v. Parker, supra, states, “The rule that the power to confess a judgment must be clearly given and strictly pursued, otherwise the judgment may be set aside at the instance of the defendant, like all other rules, has its reasonable limitations, and must not be applied with such strictness as to defeat the obvious intentions of the party granting the power.”

There is no doubt concerning what the parties intended by the loan guaranty agreement. Its only purpose was to provide additional security for the obligations of a third party and the warrant of attorney as a part thereof, could have no other function or purpose. Accordingly, the intention of the parties should be given full effect unless contrary to some principle of law and, in our opinion, no such limitation is applicable.

Defendant relies upon and has directed our attention principally to three cases, namely, Little v. Dyer, 138 Ill 272, 27 NE 905, Weber v. Powers, 213 Ill 370, 72 NE 1070 and McFadden v. Lewis, 273 Ill App 343. We have examined these cases but believe that neither the reasoning nor the results therein are applicable to the case at bar. Each of the aforementioned cases involves a warrant of attorney contained in a written lease and the court holds that the parties did not intend or could not have intended to authorize confession of judgment in regard to that which was indefinite or uncertain. We believe the guaranty agreement sufficiently sets forth the basis for calculating the amount which may be due thereunder and the authority conferred is as definite as that pertaining to the periodic payments due under a lease. See Fortune v. Bartolomei, 164 Ill 51, 45 NE 274. It should be noted that there are many circumstances and conditions affecting the liability of a lessee which cannot be determined from the terms of the lease. See also Cutler v. Leader Cleaners, 12 Ill App2d 439, 139 NE2d 832. The cases which appear to have limited the intention of the parties were decided prior to the present Civil Practice Act and may be considered procedurally limited to some extent by the rigidity of common-law pleadings.

Defendant also relies on Brown v. Atwood, 200 Ill App 210, which held invalid a judgment by confession where the warrant of attorney was included in an arbitration agreement. The Brown case follows Duffy v. Odell, 117 Ill App 336, and accordingly, it would appear that arbitration agreements constitute a special situation in which warrants of attorney are proscribed without regard to the intention of the parties.

Defendant also argues that the guaranty agreement was invalid as a matter of law because blanks were not filled in at the time she signed the document. Alternatively, she argues that the facts and circumstances described in the affidavits concerning the execution of the agreement present a meritorious defense requiring that the judgment be vacated.

As indicated above, blanks on the guaranty agreement were not filled in at the time the document was signed by defendant but were filled in prior to application for judgment. That there were blanks does not render the agreement invalid, as contended for by defendant. In O’Toole v. Helio Products, 17 Ill App2d 82, 149 NE2d 795, a case principally relied upon by defendant, a promissory note was included as part of a retail sales contract. Defendant’s signature appeared on the note portion but all other blanks were not filled in, neither at the time the instrument was executed nor at the time judgment was applied for. The court did not hold that the instrument was void on account of unfilled blanks but held only defendant intended to sign an order for storm windows and did not intend to execute a promissory note. Indeed, the cases of F. W. Cook Brewing Co. v. Goldblatt, 184 Ill App 266 and Fisk Tire Co. v. Burmeister, 252 Ill App 545, cited by defendant, which, in fact, deal with guaranty agreements, are contrary to defendant’s position. Both of these cases hold that a guaranty agreement is not invalid because it contains blanks at the time it is signed and delivered. Invalidity may result if the blanks are filled in contrary to the authorization of the obligor, such completion being considered a material alteration. See also, section 8-206 of the Uniform Commercial Code, chapter 26, Ill Rev Stats, which provides, “(1) Where a security contains the signature necessary to its issue or transfer but is incomplete in any other respect (a) Any person may complete it by filling in the blanks as authorized.”

Defendant also argues that the authority to complete the blanks is a question of fact entitling defendant to a trial on the merits.

Supreme Court Rule 276 which governs the opening up of a judgment by confession, requires affidavits in accord with Rule 191 relating to motions for summary judgment. Such affidavits must disclose facts to which the affiant is competent to testify presenting a prima facie defense.

No claim is made by defendant of any fraud, misrepresentation, concealment, deception or other improper conduct either by her husband or by plaintiff which induced or caused her to sign and deliver the guaranty agreement. Nor does defendant claim or set forth facts in support of any such claim that she signed the document involuntarily or by mistake. In this court defendant argues that the blanks were filled in contrary to her authority, but such argument is not supported by any facts set forth in the documents filed in behalf of defendant. With respect to the execution of the guaranty agreement defendant states in her answer, “2. Said Guaranty Agreement was signed solely at the urging of defendant’s husband, John B. Westfall. 3. Never before, after, or during the time that defendant signed said Guaranty was there any discussion between defendant and her husband as to the purpose for which said Guaranty Agreement would be used.” Such statements fall short of being facts to which the affiant would be competent to testify. In addition to being somewhat contradictory, there is nothing in such statements from which it can be inferred that any condition or limitation was imposed by defendant at the time she signed the document or delivered it to her husband. Thus, it cannot be said that the blanks were filled in contrary to her authority when according to her own statement, no limitations were imposed.

Lastly defendant argues that the agreement entered into between plaintiff and her husband constituted a release of her obligation. We believe it is unnecessary to consider this assignment of error because admittedly, the agreement was executed subsequent to the entry of judgment by confession and could not have constituted a defense to plaintiff’s claim at the time judgment was sought and entered.

Accordingly, we find no error in the judgment of the Circuit Court of Grundy County and the judgment of said Court is affirmed.

Judgment affirmed.

ALLOY, J.,

concurs.

RYAN, P. J.,

dissents.

Dissenting opinion by RYAN, J.

I cannot concur in the majority opinion for two reasons: First, the power to confess judgment in the guaranty agreement is unclear, ambiguous and uncertain as to the amount or any method by which the amount of the judgment can be ascertained. Second, the motion to open the judgment by confession and the affidavit and answer filed therewith by the defendant and the pleadings and depositions filed by plaintiff disclose several defenses which require that the judgment be opened and the case proceed to trial.

The power to confess judgment is contained in a general guaranty agreement signed by the defendant. As the agreement appeared with the blanks filled in at the time judgment was entered, it was given to enable the defendant’s husband to obtain credit from the plaintiff Bank. The defendant thereby guaranteed full and prompt payment to the Bank of:

“any and all indebtedness, liabilities and obligations of every nature and kind of said Debtor to said Bank and every balance and part thereof whether now owing or due or which may hereafter from time to time be owing or due, and howsoever heretofore or hereafter created or arising or evidenced to the extent of $50,000 . . . .”

It should be noted that by this agreement the defendant’s obligation is not limited to paying only future loans that the Bank may make to her husband.

In light of the all inclusive nature of the defendant’s undertaking, let us examine the authority to confess judgment, which is contained in this guaranty agreement. This authority is as follows:

“At any time after date hereof, to further secure the payment of said indebtedness, the undersigned hereby authorizes irrevocably any attorney of any court of record to enter the appearance of the undersigned in such court in term time or vacation, to waive service of process and to confess judgment in favor of said Bank . . . together with costs of suit and reasonable attorney’s fees to be included therewith . . . .”

One fatal defect in the confession of judgment clause is that it simply states “to confess judgment in favor of said Bank.” It does not say for what amount judgment may be confessed. It does not say “for any amount that may be due and owing from the Debtor to the Bank.” It does not say “for the amount which I may be obligated to pay under the terms of this agreement.” It doesn’t refer to any documents such as notes, leases, mortgages or even to “this instrument.” Nor does it refer to any transactions from which anyone can compute or ascertain the extent of the authority granted to any attorney to confess judgment.

The majority opinion cites two cases to the effect that the intention of the parties governs the construction and application of the warrant to confess judgment. Holmes v. Parker, 125 Ill 478, 17 NE 759; First Nat. Bank of Elgin v. Husted, 57 Ill App2d 227, 205 NE2d 780. The facts in these two cases bear no resemblance to the facts of our case. Both of the above cases recognize the general rule that the power to confess judgment must be clearly given and strictly pursued, and a departure from such authority will render the confessed judgment void. The Holmes case as pointed out in the majority opinion qualifies the general rule by stating that the general rule will not be applied with such strictness as to defeat the obvious intentions of the party granting the power. In reading the warrant to confess judgment in the guaranty agreement now being considered, I cannot discern any obvious intention of the defendant herein. It must be remembered that the guaranty agreement was executed by the defendant to “enable John B. Westfall of Morris, Ill., hereinafter designated as ‘Debtor,’ to obtain credit from time to time of the Grundy County National Bank.” However, the agreement itself guarantees payment of all of the husband’s “indebtedness, liabilities and obligations of every nature and kind . . . whether now owing or due or which may hereafter ... be owing or due and howsoever heretofore or hereafter created or arising . . . .” Under such a situation, when the authority to confess judgment simply recites “to confess judgment in favor of said Bank” without adding “for the amount due hereon” or “for the amount of credit the Bank extended to the Debtor subsequent to the date hereof,” or some other qualifying words, I can see no expression of any obvious intention which would remove this case from the application of the general rule. To confess judgment under the interpretation placed upon this power by the majority opinion is to read into the power words that are not there and words which cannot be inferred from the remainder of the agreement.

In addition to the above two cases, we find the general rule announced in a long line of Illinois cases as follows:

The authority to confess a judgment without process must be clear and explicit; must be clearly given; must be in clear and unequivocal language and so definite as not to be properly capable of any other construction and must be strictly pursued. Frye v. Jones, 78 Ill 627, 633; Weber v. Powers, 213 Ill 370, 380, 72 NE 1070; Wells v. Durst Chevrolet Co., 341 Ill 108, 111, 173 NE 92; McFadden v. Lewis, 273 Ill App 343, 345; Sharpe v. Second Baptist Church of Maywood, 274 Ill App 374, 377.

The majority opinion herein alludes to the possibility that the strictness of the above rule may have been tempered by the Civil Practice Act. Our courts have not so applied the rule. In Wolf v. Gaines, 33 Ill App2d 428, 430, 179 NE2d 466 (1961), the court applied the same strict rule by stating, “in determining the intention of the parties in an execution of a warrant of attorney the same rules are applied which govern written contracts generally. However, the warrant must be signed by all persons against whom the judgment is to be entered, must be clear, must be in unequivocal language, must be strictly construed and strictly followed." (Emphasis added.) Also in Travis v. Foreman, 75 Ill App2d 348 at page 350, 220 NE2d 648 (1966), the court stated: “It has long been recognized by Illinois Courts that the power to confess a judgment must be clearly given (citing authority) and that the authority to confess judgment under a warrant of attorney must be strictly construed and must be strictly followed.” (Emphasis added.)

The language of the power to confess judgment in the guaranty agreement now under consideration is not clear, is not explicit, is not unequivocal and cannot be strictly pursued because its meaning is entirely unknown. Accordingly, the power is invalid and the judgment rendered thereon is void.

Assume, as the majority opinion does, that it was the intention of the defendant to confer authority on an attorney to confess judgment for any amount that may be due under and by virtue of her undertaking in the guaranty agreement. In my opinion, the judgment confessed thereunder would be void. The guaranty agreement itself is indefinite and uncertain. By an inspection of its terms, it is totally impossible to determine what amount, if any, is due to the bank thereunder. From the instrument itself it is impossible to ascertain whether the defendant’s husband was ever obligated to the Bank in any amount or whether any credit was extended to him by virtue of the agreement. Without resort to other documents or records, it is impossible to tell whether the defendant’s husband owed any “indebtedness, liabilities or obligations” to the Bank for which the defendant would be responsible under the terms of this agreement.

In Brown v. Atwood, 224 Ill App 77, at page 80, the court stated:

“There can be no valid warrant of attorney to confess judgment against the donor of the power where the amount of the judgment is not fixed in the power .... There may be a valid warrant of attorney to confess judgment for rent to become due by the terms of the lease where the monthly rental is fixed by the lease, and the amount due is ascertainable by inspection of the lease, but not for the confession of a judgment for other matters not ascertainable by an inspection of the lease.” (Emphasis added.)

In Little v. Dyer, 138 Ill 272, 27 NE 905, the power to confess judgment included in the lease authorized an attorney to confess judgment “for any rent which may be then due by the terms of this lease.” By the terms of the lease all amounts paid by the lessor for water rents and gas bills and for keeping the premises in a clean and healthy condition were to be considered “so much additional rent.” The court held that by virtue of the provision for making these other expenses “so much additional rent” a determination of the rent due under the lease would involve a hearing of evidence other than that afforded by the lease itself. The court held that such a power to confess judgment for such an uncertain and unliquidated amount was invalid.

The case of Fortune v. Bartolomei, 164 Ill 51, 45 NE 274, cited in the majority opinion does not sustain the position of the majority of this court. In that case, the lease in addition to providing for a stipulated amount of rent each month, also provided that the amounts which the lessor paid for water rent and gas bills and for keeping the catch basins clean and the premises in a clean and healthy condition “are hereby declared to be so much additional rent.” The power in the lease to confess judgment stated, “may confess judgment, from time to time, for any rent which may then be due by the terms of the lease.” The court held that a valid judgment by confession could be entered as to any amount due under the stipulated monthly rental set forth in the lease because that amount could be computed by an inspection of the lease itself. The court upheld the judgment that had been entered by confession because the judgment consisted only of the amount of past due rent based on the amount of monthly rentals set forth in the lease. The court stated, however, that any amount accruing as rent under the other provisions of the lease as “so much additional rent” was an uncertain and unliquidated amount of money and the power to confess judgment for that part of the rent was void. The language of the Supreme Court in the Fortune case supports the position taken in this dissent.

Also in Hymen v. Anschicks, 270 Ill App 202, the power to confess judgment was for the amount of rent due under the terms of the lease “or any extension or renewals hereof.” Judgment was confessed for rent due for May, June and July, 1932. The lease was for a one-year period commencing October 1, 1930, and expiring September 30, 1931, and from year to year thereafter, unless terminated in the manner provided in the lease. The court held that a renewal or holding over was a fact dehors the written lease and the power of attorney. The court stated at page 205:

“By the terms of the lease the lessee had the option, by giving 60 days’ notice in writing, to terminate the lease on September 30, 1931; the power of attorney did not authorize a confession that such notice had not been given. This was a question of fact upon which defendant was entitled to a trial.”

The court held in that case that a judgment by confession must be for a fixed and definite sum and not a confession of fact that can only be established by testimony outside the written documents. To the same effect see Weber v. Powers, 213 Ill 370, 72 NE 1070; Weiss v. Danilczik, 262 Ill App 551; and McFadden v. Lewis, 273 Ill App 343.

In our case, as in the lease cases above cited, before liability can be imposed upon the defendant, there must be determinations of fact evidence of which is not supplied by the document itself. In the lease cases, the questions of fact were primarily whether there had been an extension of the lease or a holding over under the same, or whether additional rent under the terms of the lease had accrued by virtue of certain expenditures the lessor had made. In our case, there are many questions of fact, evidence of which cannot be supplied by the guaranty agreement. As an example: Was any credit extended to the Debtor by the Bank? And using the all-inclusive language of the agreement itself — Were there any “indebtedness, liabilities and obligations of every nature and kind of said Debtor to said Bank and every balance and part thereof, whether now owing or due, or which may hereafter from time to time be owing or due, and howsoever heretofore or hereafter created or arising or evidenced to the extent of $50,000?” This attempt by the plaintiff to touch all the bases and secure itself as to every conceivable avenue of the debtor’s obligations creates so many questions of fact that proof thereof must necessarily come from many sources dehors the guaranty agreement itself before there can be a determination as to whether there is any liability thereunder and thus any amount for which judgment can be confessed.

As our Supreme Court said in Little v. Dyer, 138 Ill 272, 27 NE 905 at 279:

“It would be absurd to contend that such unrestricted power was given to the creditor or his attorney, and a rule such as that would be in the highest degree productive of fraud and subversive of justice, and would be tantamount to making one of the parties in interest not only both plaintiff and defendant, but court also, — and that, too, in his own cause.”

And again at page 280:

“A power so unrestricted cannot lawfully be either given or exercised. Though a demand be ever so just, a party ought not to be permitted to coerce payment without the sanction of judicial authority. To hold the power valid, and that the attorney might waive all errors and all right of appeal, would be to open the business transactions of men to infinite abuse.”

I feel that the observations in the Little case, supra, relative to the situation being productive of fraud and open to abuse are particularly true in the case at bar, in view of the fact that the motion to open the judgment and the affidavit and the answer filed by the defendant and the depositions filed in said cause indicate that the document was executed in blank in 1963 and that the blanks were not filled in until 1967. This observation is related to the authority to confess judgment under the warrant contained in the document and the possibility of the abuse thereof and is not related to the validity of the guaranty instrument itself, which shall be discussed later.

For the reasons above stated, I am of the opinion that the warrant to confess judgment was void and the court should have granted defendant’s motion to open the judgment.

As to the guaranty agreement, we are not here concerned with the validity or the invalidity of the instrument by virtue of the fact that it was executed with unfilled blanks. This case in the trial court and in this court involves only a motion to open a judgment by confession filed pursuant to Supreme Court Rule 276 and supported by an affidavit filed pursuant to Supreme Court Rule 191. Rule 276 provides in part: “If the motion and affidavit disclose a prima facie defense on the merits . . . the court shall set the motion for hearing. The plaintiff may file counteraffidavits. If, at the hearing upon the motion, it appears that the defendant has a defense on the merits . . . and that he has been diligent in presenting his motion . . . the court shall sustain the motion . . . and the case shall thereafter proceed to trial . . . .”

The defendant’s motion to open the judgment was accompanied by a verified answer and an affidavit as required by Rule 276. The affidavit incorporated the verified allegations of the answer into the affidavit by reference. The plaintiff filed a motion to strike the defendant’s motion to open the judgment. The court granted the defendant’s motion to strike and confirmed the judgment. It appears from the record that the case was decided solely on the issue of the sufficiency of the defendant’s motion to open the judgment and the affidavit as tested by the plaintiff’s motion to strike. However, the plaintiff’s motion to strike attempts to controvert the allegations of the motion, affidavit and answer of the defendant. Depositions were filed in opposition to the motion to open. In light of the attempt by the plaintiff to controvert the factual allegations of the defendant’s motion and in light of the filing of the depositions, it is apparent that more than the mere sufficiency of the defendant’s motion to open and the affidavit was determined by the trial court.

Although we are not here concerned with a determination of the validity of the guaranty agreement, we must determine whether the defendant has raised a defense on the question of the validity of the agreement which requires a trial on the issues under Supreme Court Rule 276. Had the plaintiff limited its pleading to a simple motion testing the validity of the plaintiff’s motion to open, answer and affidavit, a different picture would have been presented. The plaintiff, however, attempted to controvert the defendant’s affidavit and attempted to show facts which would presumably give rise to an implied authority to fill in the blanks in the agreement. In support of the plaintiff’s allegations in its motion, it filed several depositions. After reviewing the pleadings and the depositions, I am of the opinion that three distinct defenses have been raised to the validity of the guaranty agreement. First, the blanks on the executed agreement were not filled in pursuant to any agreement between the plaintiff and the defendant. Second, the pleadings create an issue of fact as to whether the circumstances surrounding the execution and delivery of the guaranty agreement created an implied authority in the plaintiff bank to fill in the blanks. Third, under the circumstances surrounding the filling in of the blanks, a question of fact has been created as to whether the blanks in the guaranty agreement were filled in within a reasonable time.

As stated in the majority opinion, the fact that the blanks on the instrument are not filled in at the time of its execution does not render it invalid. However, the person who fills in the blanks must do so in accordance with the agreement of the parties. This is the holding of the Cook Brewing Co. case and the Fisk Tire Co. cases cited in the majority opinion. The record indicates clearly that there never was an agreement between the defendant and her husband as to the purposes for which the instrument was signed nor the amount which was to be filled in as the limit of her undertaking. Likewise, the record indicates that there was never any agreement between the defendant and the plaintiff bank as to the authority to fill in the blanks. In light of this, it cannot be said that the blanks were filled in in accordance with an agreement between the parties, which is one of the requirements necessary to validate an agreement executed in blank as set forth in the authorities cited above.

The affidavit filed by the defendant in support of its motion to open alleged that the guaranty was not based upon an implied agreement. Although it may appear that such an allegation is a conclusion and does not conform to the requirements of an affidavit to be filed under Supreme Court Rule 191, no motion was made by the plaintiff attacking the sufficiency of this statement in the affidavit. In fact, the plaintiff’s motion to strike raises no question as to the sufficiency of any part of the plaintiff’s affidavit, but questions only the sufficiency of the plaintiff’s motion to open, and her answer. Therefore, the sufficiency of the statement in the affidavit that there was no “implied agreement” cannot now be questioned. Kent v. Rhomberg, 288 Ill App 328, 6 NE2d 271.

The plaintiff’s pleadings and the depositions only serve to emphasize the point that questions of fact do, in fact, exist as to whether there was implied authority on the part of the bank to fill in the blanks on the instrument. This is a question of fact which should be determined by a trier of fact, either court or jury, after the judgment has been opened and after the case has proceeded to trial, as provided in Rule 276. It is not a question of fact under the circumstances herein that can be determined on a motion to strike the defendant’s motion to open a judgment by confession. Authority to fill in blanks in an instrument may be implied from the many circumstances surrounding the transaction. 3 CJS, Alterations of Instruments, § 63. In this case, the existence or nonexistence of such implied authority should not be determined by a trial by affidavit and counter-affidavits.

A very necessary adjunct that must be considered in connection with the completion of instruments as authorized or in accordance with the authority given or implied, is the time within which such instrument must be completed. Section 14 of the Uniform Negotiable Instruments Act, which was substantially incorporated in section 34, chapter 98, 111 Rev Stats, and which has now been repealed, provided that the blanks in an instrument had to be filled strictly in accordance with the authority given and within a, reasonable time. The Uniform Commercial Code, SHA, chapter 26, section 3-115, comment 1, states:

“The third sentence of Section 14, providing that the instrument must be filled up strictly in accordance with the authority given and within a reasonable time, is eliminated as entirely superfluous, since any authority must always be exercised in accordance with its limitations, and expires within a reasonable time unless a time limit is fixed.”

In 11 Am Jur2d, Bills and Notes, §76, it is stated:

“What is a reasonable time for completion of an instrument depends upon the facts of each particular case and has been held to constitute a question for the jury where the facts are disputed or a mixed question of law and fact.”

Therefore, even if we assume that the implied authority to fill in the blanks did exist, there is the further question as to whether this authority was exercised within a reasonable time. The defendant in her answer alleged that the blanks on said document were not filled in Until some date after October 19, 1967, when she saw the instrument in the office of an attorney, four years after it was signed by the defendant. This allegation, coupled with the evidence which plaintiff itself presented in the depositions, clearly indicates that this was a defense which should have been decided by a trial and not on a hearing on a motion.

Before this question can be adequately understood, a more definite picture of the factual situation surrounding the entire transaction must be presented. The depositions that were filed herein reveal the following facts:

On or about October 21, 1963, the plaintiff bank requested the defendant’s husband to have his wife sign this guaranty agreement. He took it to their home and the defendant signed it. At the time she signed the printed form, none of the blanks thereon were filled in, with the possible exception of the name of the bank. It was definitely established that the name of the debt- or (defendant’s husband), his address, the maximum limit of the possible liability of the defendant and the place and date of execution were all blanks that were not filled in at the time the defendant signed the document. Defendant’s husband returned the instrument to the bank, and the same was put in the defendant’s husband’s loan file at the bank. No discussion was had with any bank official by the defendant or her husband concerning the filling in of any of the blanks. In the fall of 1967, some marital difficulties developed between the defendant and her husband. She went to California for about six weeks and returned on October 15, 1967. She had decided to separate from her husband and went to the bank to ascertain the extent of his obligations to the bank. The president of the bank stated that this occasion was the first time that he knew of any family trouble between the defendant and her husband. A few days later on October 19, 1967, the defendant consulted an attorney, who called the bank and asked it to send to his office the defendant’s husband’s loan file. The bank accommodated the attorney (he being a director of the bank) and an officer of the loan department took the file to the attorney’s office. This officer then exhibited to the attorney the guaranty agreement. The blanks had not been filled in at that time. The defendant’s attorney told the bank official that because this instrument was executed in blank it “wasn’t worth the paper it was written on.” The bank official later that day communicated this information to the president of the bank, who a few days later reported the incident to the board of directors of the bank and stated that he was going to fill in the blanks on this instrument, which he did the following day. At that time, defendant’s husband was not in default on any of his loans.

Therefore, again assuming for sake of argument that when the bank received the executed guaranty agreement it had the implied authority to fill in the blanks, the circumstances existing at the time the blanks were filled in certainly raise a question of fact as to whether the authority was exercised within a reasonable time. The bank knew that marital problems had arisen between the defendant and her husband. The defendant had consulted an attorney. Her attorney had informed the bank that the guaranty agreement was not valid because it was executed in blank. The president of the bank, after being informed of this fact and the attorney’s contention, attempted to remedy the defect by filling in the blanks. All of this transpired four years after the agreement was executed by the defendant and at a time when the defendant’s husband was not in default on any of the obligations which he owed to the bank. These are facts that should have been considered by a trier of fact and not summarily disposed of on a ruling on a motion to dismiss the defendant’s motion to open the judgment. The reasonableness of the conduct of the bank under these circumstances created a defense which required that the court open a judgment and proceed to trial.

The pleadings by both parties in this controversy have been something less than precise. However, upon careful examination of the same, one can only conclude that all of the points discussed in this dissent have been raised by the pleadings filed herein, presented to the trial court, and have been preserved for review and have not been waived.

For the above reasons, I am of the opinion that the decision of the trial court should be reversed.


author: MR. PRESIDING JUSTICE DAVIS

text:
    Foss Park District, A Body Corporate and Politic, Petitioner-Appellee, v. The First National Bank of Waukegan, as Trustee Under Trust No. 616, et al., Respondents-Appellants.
    Gen. No. 69-212.
    Second District.
    July 6,1970.
    Rehearing denied July 30,1970.

      Mark J. Drobnick, of Waukegan, for appellant.
    Thomas G. Przyborski and Frank M. Daly, of Waukegan, for appellee.
   MR. PRESIDING JUSTICE DAVIS

delivered the opinion of the court.

This is an eminent domain proceeding brought by the Foss Park District, seeking condemnation of certain lands for use as part of a public golf course in which the jury awarded the respondents $75,202.

On appeal, the respondents contend that the statute authorizing the petitioner to condemn for golf course purposes, where a fee for playing is to be charged, is unconstitutional; and that the trial court made certain erroneous evidentiary rulings.

The Park District Code grants unto park districts the power to condemn pursuant to the provisions of the Eminent Domain Act, to establish and maintain golf courses, and to establish fees for the use of the facilities of the park district. Ill Rev Stats 1969, c 105, pars 8-1 (b), 8-10, 8-1 (h). The respondents urge that this statutory power constitutes an unconstitutional denial of property without due process and without equal protection of the laws, in violation of section 1, Amendment XIY of the United States Constitution, and of Article II of the Constitution of the State of Illinois. They contend that — since fees are to be charged for use of the golf course, and only those who can afford such fees may use the facility — the use of tax funds to acquire land for such purpose is unconstitutional.

The respondents have cited no authority for their rather novel argument, and we have found none. Even before there was specific statutory authority for a park district to charge fees for the use of its facilities, our courts had recognized its right to do so. MacNeil v. Chicago Park Dist., 401 Ill 556, 563, 564, 82 NE2d 452 (1948).

The constitutional questions raised by the respondents are not so substantial that we are precluded from deciding them. Pettigrew v. National Accounts System, Inc., 67 Ill App2d 344, 346, 347, 213 NE2d 778 (1966); Supreme Court Rule 302(a), (Ill Rev Stats 1969, c 110A, par 302(a)). We find no taint on the constitutionality of the statutory authorization to charge a fee for the use of a public facility because public funds are to be used to acquire land on which the public facility is to be located. Consequently, the respondents’ traverse was properly denied.

It is further contended by the respondents that the petitioner’s expert witnesses based their opinions of value on negative factors, e. g., the lack of transportation, shopping, sewer and water, etc. in the area. These witnesses were qualified to give an opinion of value; their background, experience, and knowledge of the area qualified them to testify. The trial court has a wide discretion in determining the qualifications of an expert witness. Trustees of Schools v. Schroeder, 23 Ill2d 74, 78, 177 NE2d 178 (1961). The testimony of the petitioner’s expert witnesses demonstrated that they considered the factors normally relevant to proving market value, including negative as well as positive elements. Their testimony, considered in its totality rather than in its fragmentation, substantiates that their respective opinions were based upon proper factors. See: Forest Preserve Dist. of DuPage County v. Harris Trust & Savings Bank, 108 Ill App2d 65, 72, 247 NE2d 188 (1969).

The court limited the cross-examination of the petitioner’s expert witnesses by preventing counsel from asking whether each witness would have valued the land in question differently had he known that all forty-one parcels were under common ownership. The court held that there was no evidentiary foundation for such hypothetical cross-examination. However, the court indicated it would permit such examination as to those parcels which the respondents would establish were under common ownership. The respondents did not attempt to establish the common ownership by evidence, and the court’s ruling was proper under the circumstances.

Likewise, the court properly denied cross-examination of these same witnesses, as to whether in arriving at their market value determination, they had considered the probability of rezoning. The court held that the evidence of such probability was inadequate to permit its suggestion before the jury, by counsel.

The respondents also sought to introduce evidence as to the possibility of bringing sewer and water into the area, its cost, and resulting advantage. However, such evidence necessitated assuming that the other lots in the area, including those not owned by the respondents, were a part of the possible improvement project. The court was of the opinion that the possibility of such cooperative project was too speculative for consideration.

In the cases cited by the respondents, the cost of improving subdivisions was admitted into evidence where agricultural land was valued as having a highest and best use for subdivision purposes. The courts there permitted testimony as to the cost of improvements since this would be a factor in determining the present market value of the agricultural land; its value as subdivision land must, of necessity, include consideration of the cost of converting the land to such use. See: Forest Preserve Dist. v. Krol, 12 Ill2d 139, 145, 146, 145 NE2d 599 (1957).

The respondents also contend that the trial court erred in refusing to permit one of their witnesses to testify as an expert. On December 10,1968, the court ordered each party litigant to provide the other with copies of all appraisal reports. On April 30, 1969, Simon was placed on the stand, presumably as the respondents’ last of three expert witnesses. The petitioner had not received an appraisal report from this witness. The respondents’ prior expert witnesses had all testified as to the highest and best use of the land, and based their opinions of value on its single-family use. This witness then stated that he was of the opinion that the highest and best use of the land was for a planned unit development. Counsel for the respondents had previously advised the court and counsel for the petitioner that the witness would testify that the highest and best use was for single-family residential use.

Out of the presence of the jury, this witness testified that he had been contacted to make his appraisal approximately three months prior to the trial, and that he had not made any written report — his only report being oral. The oral report was made to the owner who had retained the witness, approximately two and one-half months prior to the trial. The witness purportedly had reported that his conclusion was that the highest and best use of the land was for multiple-family dwellings.

Of the respondents’ three expert witnesses, this was the second whose report had not been revealed to opposing counsel. The prior witness had submitted a written report, but even this was not furnished to the petitioner or its counsel. The court concluded that the respondents had wilfully and deliberately refused to comply with the court’s order to produce the appraisal reports. Under the circumstances, this conclusion appears warranted, and the court’s refusal to permit the respondents’ last witness to testify was not an improper sanction to be imposed against them. Supreme Court Rule 219 (c) (iv), (Ill Rev Stats 1969, c 110A, par 219 (c) (iv)).

The respondents’ main thrust in this appeal is alleged errors in the evidentiary rulings. The trial court must be permitted an area of discretion both as to the scope of cross-examination and as to the relevancy of evidence offered to prove a case in chief. Our purpose is not to ascertain that the record is free from all error, but to determine that a just conclusion has been reached, founded upon competent and sufficient evidence, without error that might be prejudicial to a litigant’s rights. Ziegler v. Smith, 86 Ill App2d 215, 224, 229 NE2d 340 (1967).

The verdict of the jury was within the range of the testimony. The jury viewed the premises, and we cannot find that their verdict was the result of passion or prejudice or that there has been a clear and palpable mistake. Accordingly, the judgment of the trial court should be affirmed. Trustees of Schools v. Schroeder, supra, 79.

Judgment affirmed.

MORAN and SEEDENFELD, JJ., concur.


author: MORAN, P. J.

text:
    Kathryn F. Morelock, Formerly Kathryn L. Finke, Plaintiff-Appellant, v. Millers’ Mutual Insurance Association of Illinois, Defendant-Appellee.
    Gen. No. 69-51.
    Fifth District.
    July 7,1970.

      Dick H. Mudge, Jr., of Edwardsville, for appellant.
    Ray H. Freeark, Jr. and Robert D. Francis, of Belle-ville, for appellee.
   MORAN, P. J.

Plaintiff, Kathryn F. Morelock, appeals from a judgment of the Circuit Court of Madison County, denying her prayer for relief in an action for declaratory judgment to declare the uninsured motorist provision of an automobile liability policy issued, to her by defendant, Millers’ Mutual Insurance Association, upon an automobile not involved in the accident, applicable to an accident caused by an uninsured motorist.

The case was presented to the trial court on a stipulation of facts. On August 14, 1965, the plaintiff, Kathryn F. Morelock, formerly Kathryn L. Finke, was driving an automobile owned by her father, Claude Wedel, in an easterly direction on Interstate Highway No. 70, South of Madison, Illinois. The other occupants of the Wedel automobile were plaintiff’s sister, Phyllis Wedel, her parents, Claude and Ruth Wedel, and a married couple. A head-on collision occurred between the Wedel automobile and an uninsured automobile driven by Alfred M. Holley in a western direction in a lane for eastbound traffic. All of the occupants of the Wedel automobile sustained some injury. Phyllis Wedel and the plaintiff were severely and permanently injured, and each of these girls suffered damages in excess of $20,000. Each girl is legally entitled to recover such damages from Alfred M. Holley, the operator of the uninsured automobile. Plaintiff is the named insured in Millers’ Mutual Insurance Association of Illinois, Policy No. 1203-5206, Plaintiff’s Exhibit No. 1. Claude Wedel is the named insured in Millers’ Mutual Insurance Association of Illinois, Policy No. 1203-5317, Defendant’s Exhibit No. 1. The policies are identical except for the declarations on the first page. Each policy limits the liability under the uninsured motorist coverage to $20,000 for each occurrence. Defendant has informed the Court that it has paid $5,525.83 and the remaining $14,474.17 of the $20,-000 limit is now available to be divided between Phyllis Wedel and the plaintiff, Kathryn F. Morelock.

Both Phyllis Wedel and plaintiff have filed demands for arbitration but these proceedings have been continued pending the decision in this case. It has been stipulated, however, that for purposes of this suit the plaintiff’s damages are in excess of the $14,474.17 available for distribution out of Claude Wedel’s policy.

Plaintiff claims that under the factual situation here presented she is afforded protection against uninsured motorists under the provisions of her own policy. Defendant agrees that plaintiff would be covered under the provisions of her policy because she was occupying “an insured automobile” which includes “a non-owned automobile while being operated by the named insured with the permission of the owner” but for the “other insurance” provision of her policy which relieves the company from liability. The provision relied upon by the defendant is as follows:

“Other insurance: With respect to bodily injury to an insured while occupying an automobile not owned by the named insured, the insurance under the Uninsured Motorists Coverage shall apply only as excess insurance over any other similar insurance available to such insured and applicable to such automobile as primary insurance, and this insurance shall then apply only in the amount by which the limit of liability for this coverage exceeds the applicable limit of liability of such other insurance.”

Under the clear meaning of the “Other Insurance” clause, defendant is relieved of all liability since other insurance is available to the plaintiff and the limit of liability in her policy does not exceed the applicable limit of liability in her father’s policy.

Plaintiff argues that this “Other Insurance” clause is an escape clause which violates Ill Rev Stats, c 73, § 755a (1) which provides:

“Uninsured or hit-and-run motor vehicle coverage) 143a. (1) On or after the effective date of of this amendatory Act of 1963, no policy insuring against loss resulting from liability imposed by law for bodily injury or death suffered by any person arising out of the ownership, maintenance or use of a motor vehicle shall be renewed or delivered or issued for delivery in this state with respect to any motor vehicle registered or principally garaged in this state unless coverage is provided therein or supplemental thereto, in limits for bodily injury or death set forth in Section 7-203 of the ‘Illinois Motor Vehicle Law,’ approved July 11, 1957, as heretofore and hereafter amended for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles and hit-and-run motor vehicles because of bodily injury, sickness or disease, including death, resulting therefrom, except that the named insured shall have the right to reject such coverage only on policies delivered, renewed or issued for delivery prior to July 1,1967.”

The minimum limits set forth in section 7-203 of the Illinois Motor Vehicle Law are $10,000 per person or $20,000 per accident.

A recent and thorough survey of the law on this issue can be found in 28 ALR3d 551, wherein it is summarized at page 554 that:

“A number of courts have held that ‘other insurance’ provisions, whether in the form of a ‘pro rate,’ ‘excess insurance,’ ‘excess-escape,’ or other similar clause, are invalid as a part of uninsured motorist protection, on the ground that the statute requiring every liability policy to provide this type of protection will not permit the insurer to provide in any way that the coverage will not apply where other insurance is also ‘available,’ despite the fact that the insured may thus be put in a better position than he would be in if the other motorist were properly insured. Other courts have stated, however, that the design and purpose of uninsured motorist statutes are to provide protection only up to the minimum statutory limits for bodily injuries, and not to provide the insured with greater insurance protection than would have been available had he been injured by an insured motorist, and have held that such ‘other insurance’ provisions are valid where they do not reduce coverage below the minimum statutory limits.”

We subscribe to the first view. Section 755 (a) commands that no policy shall be issued unless coverage is provided therein or supplemental thereto for the protection of persons insured thereunder who are legally entitled to recover damages for personal injury or death from an uninsured motorist. This is plain language without limitation or qualification. Nevertheless, the policy issued by defendant undertakes not to provide effective coverage therein for the protection of the named insured entitled to recover damages from an uninsured motorist but only such coverage in an amount by which the limit of its liability for this coverage exceeds the applicable limit of liability of another policy under which plaintiff is a “paper beneficiary.” Clearly, this places a limitation upon the plain meaning of the statute and is, therefore, void and of no effect, because a policy provision which attempts to dilute or diminish a statutory requirement is contrary to public policy and is superseded by the statute. Prosk v. The Allstate Ins. Co., 82 Ill App2d 457, 226 NE2d 498; American Alliance Ins. Co. v. Brady Transfer & Storage Co., 101 F2d 144. As stated in Bryant v. State Farm Mut. Automobile Ins. Co., 205 Va 897, 140 SE2d 817, “to say (she) is not entitled to recover anything under this policy because (her) father had a policy under which (she) has received part of the sum (she) is entitled to recover from the uninsured motorist is to amend the statute, not construe it.”

We are very much impressed with the opinion of the Supreme Court of Florida in the case of Sellers v. United States Fidelity & Guaranty Co. (Fla), 185 So2d 689 (1966), which held that section 627.0851 of the Florida Uninsured Motorist Statute which is similar in language to that of the Illinois Statute invalidated language in an insurance policy attempting to limit its liability by “other insurance” clauses, saying at page 690:

“It appears to us that the statute expresses the statutory requirements both as to coverage to be provided by the insurer, and as to its sources of recovery of insurance protection it paid from other persons including other insurers legally responsible for the bodily injury to insureds, to the exclusion of inconsistent language inserted in an automobile liability policy. There appears no latitude in the statute for an insurer limiting its liability through ‘other insurance’; ‘excess-escape’ or ‘pro rate’ clauses, as attempted in Condition 5. If the statute is to be meaningful and controlling in respect to the nature and extent of the coverage and to the sources of recovery and subrogation of the insurer, all inconsistent clauses in the policy to the controlling statutory language such as are contained in Condition 5 must be judicially rejected.”

and at 592:

“Our views herein are predicated upon our construction of Sec 627.0851. We consider that it provides for a limited type of compulsory automobile liability coverage. It appears to require coverage for bodily injury caused by the negligence of an uninsured motorist to the extent of specific limited amounts. It does not permit ‘other insurance’ clauses in the policy which are contrary to the statutorily limited amounts of coverage. It is clear that the statute does not limit an insured only to one $10,000 recovery under said coverage where his loss for bodily injury is greater than $10,000 and he is the beneficiary of more than one policy issued under Sec 627.0851.”

The Florida Supreme Court quoted with approval Bryant v. State Farm Hut. Automobile Ins. Co., 205 Va 897, 140 SE2d 817, which reached the same result as the Florida Supreme Court and declined to follow the holding of the U. S. Court of Appeals for the Fourth Circuit in Travelers Indemnity Co. v. Wells, 315 F2d 770. The Courts of Arizona, Oregon, Nebraska and Pennsylvania have also held that their uninsured motorist statutes invalidated “other insurance” clauses in insurance policies.

Accordingly, we hold that the portion of the “other insurance” provision reading “and this insurance shall then apply only in the amount by which the limit of liability for this coverage exceeds the applicable limit of the liability of such other insurance” is void and ineffective, and that the defendant is liable for the portion of plaintiff’s damages unpaid by the primary uninsured motorist coverage up to the limit of its liability. We are aware of contrary holdings by other Illinois Appellate Courts but decline to follow them.

The judgment of the Circuit Court of Madison County is reversed and remanded for proceedings not inconsistent with this opinion.

Reversed and remanded.

GOLDENHERSH and EBERSPACHER, JJ., concur.