author: MR. JUSTICE MORAN DAVIS, J.,

text:
    Alvernest Mills, Plaintiff-Appellant, v. County of Winnebago, Defendant-Appellee.
    Gen. No. 68-47.
    Second District.
    January 13, 1969.

      Goldman and Jacobsen, of Rockford, for appellant.
    Lawrence J. Ferolie, Special Assistant State’s Attorney, of Rockford, for appellee.
   MR. JUSTICE MORAN

delivered the opinion of the court.

This appeal involves interpretation of the Local Governmental and Governmental Employees Tort Immunity Act, (Ill Rev Stats 1965, c 85, § 1-101 et seq.) passed into law August 13, 1965, and referred to herein as the Tort Immunity Act.

The plaintiff, Alvernest Mills, on September 5, 1965, shortly after the adoption of this Act, while entering her automobile which was parked on one of the streets of the City of Rockford, County of Winnebago, State of Illinois, sustained an injury as a result of a bullet passing through the thighs of both of her legs.

It seems that one John Williams, Deputy Sheriff of the County of Winnebago, defendant, while in the performance of his duties, was in pursuit of a youth suspected of having committed a misdemeanor. Williams fired his revolver at the fleeing youth and one of the bullets struck the plaintiff as stated. On March 4, 1966, the plaintiff filed a notice with the County Clerk of the defendant which notice informed the defendant (along with other information not necessary to be considered in this appeal) that she was about to commence an action because of the injuries sustained. Thereafter, on August 30, 1966, plaintiff filed her complaint solely against the defendant setting forth, in addition to the above matters, that she was in the exercise of due care of herself at the time and place in question; that it was the duty of Williams not to cause her harm but that, despite this duty, Williams did so in a “wilful and wanton” manner which caused the claimed injury.

The defendant filed a motion to strike the complaint. One of the grounds was based upon section 22.1 of the Corporate Name and Powers in General Act (Ill Rev Stats 1965, c 34, § 301.1) and referred to herein as the Indemnification Act. The motion was allowed with leave to amend; however, the plaintiff elected to stand on her complaint and this appeal followed.

The sections of statutes in force at the time of this occurrence are as follows:

Chapter 85, § 2-109:
“A local public entity is not liable for an injury resulting from an act or omission of its employee where the employee is not liable.”
Chapter 85, § 2-202:
“A public employee is not liable for his act or omission in the execution or enforcement of any law unless such act or omission constitutes willful and wanton negligence.”
Chapter 34, § 301.1:
“No county shall be liable for any injuries to the person or to the property or for the death of any person heretofore or hereafter caused by or resulting from the negligence of its agents, servants, officers or employees in the operation or maintenance of any property, equipment or facility under the jurisdiction, control or custody of the county or otherwise occasioned by the acts or conduct of such agents, servants, officers or employees; however, in case any injury to the person or property of another is caused by a sheriff or any deputy sheriff, while the sheriff or deputy is engaged in the performance of his duties as such, and without the contributory negligence of the injured person or the owner of the injured property, or the agent or servant of the injured person or owner, the county shall indemnify the sheriff or deputy, as the case may (be) for any judgment recovered against him as the result of such injury, except where the injury results from the wilful misconduct of the sheriff or deputy, as the case may be, to the extent of not to exceed $50,000, including costs of suit. . . (Emphasis added.)

It is plaintiff’s theory that section 2-202, which concerns itself with immunity of public employees as opposed to public entities, allows her to recover against Williams if he has been guilty of wilful and wanton negligence. Then, after first establishing her right under section 2-202, in the manner related above, the plaintiff urges that, even though Williams has not been found liable in another action or joined in this suit, he may, nevertheless, be found guilty in the present case. She then concludes that if he is found guilty of wilful and wanton negligence, then it would naturally follow that the defendant would be liable under section 2-109.

A brief history reveals that in 1959, there was passed into law that portion of the statute which immunized all counties and its agents, servants, officers or employees from liabilities caused by their negligent acts in the operation or maintenance of any property, equipment or facility under the county’s jurisdiction, control or custody. In 1961, by amendment, there was added the present indemnification provision set forth as section 301.1 above, relating to injuries caused by the negligent acts of sheriffs or their deputies while engaged in the performance of his duties, “except where the injury results from wilful misconduct of the sheriff or deputy, . . . .” This statute remained intact until the case of Hutchings v. Kraject, 34 Ill2d 379, 382, 215 NE2d 274 (1966) when the Supreme Court held void that portion of the Act adopted in 1959, which granted immunity to all counties and their agents, servants, officers or employees for injuries caused to others as a result of their negligent acts. The reason assigned in the decision was that the Legislature had attempted to classify governmental units as such, without regard to similarity of function. It is to be noted that the Supreme Court specifically referred to only the 1959 enactment and not to the added portion of 1961. It is to be further noted that while the 1961 addition refers only to sheriffs and their deputies, still the Legislature had, as far back as 1945, adopted a like provision in the Cities and Villages Act referring to members of the police department of a municipality. (Ill Rev Stats 1965, c 24, §§ 1-4-5 and 1-4-6.) See Andrews v. Porter, 70 Ill App2d 202, 217 NE2d 305 (1966), affd in Andrews v. City of Chicago, 37 Ill2d 309, 226 NE2d 597 (1967).

We are of the opinion that the portion of the statute with which we are here concerned, namely, the indemnification by the county for the negligent acts of the sheriff or his deputies, survived the Hutchings case, first, because the decision was specifically directed at that portion of the statute enacted in 1959 and, second, because the 1961 enactment encompassed two separate subjects or objects. It is a rule that where a statute provides for two distinct subjects or classes, it may be sustained as to one of them although the portion relating to the other may be unconstitutional and void, provided the separation may be accomplished without jeopardizing the intent of the Legislature. Henrys v. Raboin, 395 Ill 118, 124, 69 NE2d 491 (1946); Noel v. People, 187 Ill 587, 597, 58 NE 616 (1900); Chicago, B. & Q. R. Co. v. Jones, 149 Ill 361, 389-391, 37 NE 247 (1894). Therefore, at the time the plaintiff’s cause of action arose, there was in force a specific statute relating to injuries caused by the negligent acts of Williams while in the performance of his duties but excepting therefrom any wilful misconduct on his part.

The question then becomes whether or not the plaintiff can sue the county directly when she charges only wilful and wanton misconduct on the part of the deputy who is an employee of the defendant county? We think not.

The Tort Immunity Act must be read in pari materia with the Indemnification Act. Both statutes relate to the one injury received by the plaintiff through the act of Williams. Where statutes relate to the same thing or the same subject or object they are in pari materia and should be construed together regardless of the time of their enactment. Spring Hill Cemetery of Danville v. Ryan, 20 Ill2d 608, 615, 170 NE2d 619 (1960). Statutes are to be construed according to their intent and meaning taking into consideration the reason for their enactment, the existing circumstances and the objective sought by the Legislature. Illinois Nat. Bank v. Chegin, 85 Ill2d 375, 378, 220 NE2d 226 (1966). It is noteworthy that after the Hutchings case was decided in 1966, the Legislature in 1967 readopted the Indemnification Act, without the 1959 provision, and this was done after the Tort Immunity Act of 1965 which, it seems, clearly evidences, not only their knowledge of the existing statute, but their intent with relation to acts of sheriffs and their deputies in the performance of their duties. People ex rel. Myers v. Pennsylvania R. Co., 19 Ill2d 122, 129, 166 NE2d 86 (1960). It is a further rule of statutory construction, that where there is a statute covering a specific subject it should control as against general provisions covering the same subject either in the same act or in the general laws relating thereto. People ex rel. Myers v. Pennsylvania R. Co., supra; Jansen v. Illinois Municipal Retirement Fund, 58 Ill App2d 97, 105-106, 206 NE2d 249 (1965).

While the case of Molitor v. Kaneland Community Unit Dist. No. 302, 18 Ill2d 11, 163 NE2d 89 (1959) eliminated the common-law doctrine of sovereign immunity for municipal corporations, List v. O’Connor, 19 Ill2d 337, 340, 167 NE2d 188 (1960), still the General Assembly has the right to enact legislation establishing total immunity or partial immunity if it does so within the framework of our Constitution. With the Molitor case in view, the Legislature adopted the Tort Immunity Act. This Act limits the Molitor rule by specifying in what instances a person may not recover.

Part 1 of Article II of the Act concerns itself only with public entities as defined by section 1-206 and sets forth specifically when a local public entity will not be liable. One such instance is where the injury complained of results “from an act or omission of its employee where the employee is not liable.” Section 2-109, supra. It could not be more plainly and simply stated. Since a public entity acts only through its employee, as defined by section 1-202 of the Act, it cannot by itself be liable without its employee being liable, as a condition precedent to recovery.

Part 2 of Article II of the Act concerns itself with public employees, as defined by section 1-202, and also specifically sets forth when a public employee will not be liable. One such instance is when his act or omission is in the execution or enforcement of any law, “unless such act or omission constitutes wilful and wanton negligence.” Section 2-202, supra. We interpret this to mean that while a public employee may be immune from suit for his action or inactions, if you will, in the execution or enforcement of any law, still he, personally or individually, not the entity, may be held to answer for his act or inaction if it amounts to wilful and wanton negligence.

The plaintiff in the instant case is attempting to interchange separately covered subjects of the legislature, which are both directed at the one subject of immunity. Still, as can be seen from the format of the Tort Immunity Act, this is exactly what the Legislature intended to avoid.

This avoidance is further supported by the fact that Part 3 of Article II, section 2-301, expressly excludes chapter 34, section 301.1, supra, from the Act.

We therefore conclude that the plaintiff herein may have a cause of action against Williams for his wilful and wanton conduct by virtue of the Tort Immunity Act; however, this would be limited as against him individually.

The trial court was correct in dismissing the complaint against the defendant county which was based upon the wilful and wanton misconduct of Williams in the performance of his duty.

Judgment affirmed.

SEIDENFELD, J., concurs.

DAVIS, J., dissents.

DAVIS, J.,

dissenting:

I respectfully note my dissent in this case.

The plaintiff filed a complaint against the County charging that the County, through its agent and employee Williams, was guilty of wilful and wanton negligence in the performance of certain of his duties as deputy sheriff. Williams was not made a party defendant.

The County filed a motion to strike the complaint based upon various grounds, including section 22.1 of the Corporate Name and Powers General Act (herein called the Indemnification Statute), (Ill Rev Stats 1965, c 34, par 301.1); and section 2-109 of the Tort Immunity Act (Ill Rev Stats 1965, c 85, par 2-109).

The motion alleged that under the terms of the Indemnification Statute, in case of injury caused to the person by a deputy sheriff while engaged in the performance of his duties, and without contributory negligence of the injured person, the county shall indemnify the deputy for any judgment recovered against him as a result of such injury, except where the injury results from the wilful misconduct of the deputy; that the plaintiff was injured by virtue of the wilful misconduct of Williams; and that under the terms of section 2-109 of the Tort Immunity Act, a local public entity is not liable for an injury resulting from an act or omission of its employee where the employee is not liable. The trial court dismissed the complaint and entered judgment for the County. This appeal followed.

I concur with the majority opinion with reference to its interpretation of the effect of the decision of Hutchings v. Kraject, 34 Ill2d 379, 215 NE2d 274 (1966) upon the Indemnification Statute, and agree generally that the Tort Immunity Act and the Indemnification Statute are in pari materia to the extent that they deal with the subject matter of the ultimate responsibility of a governmental entity or its employees, in certain instances, in their relation to third parties. To this extent the enactments should be construed together. However, I dissent from the construction of the majority of the court with reference to the two enactments.

Generally, a governmental entity acts, or fails to act, through its employees. Therefore, most governmental liability depends on the doctrine of respondeat superior. Under the liberal provisions of the Civil Practice Act, I can see no reason for concluding that the plaintiff cannot sue the County directly, without joining Williams as a party defendant, for the wilful and wanton conduct of the deputy which occurred in the performance of his duties.

If an action is brought against a governmental employee, individually, arising out of an act or omission within the scope of his employment, the Tort Immunity Act provides that the governmental entity may elect to either appear and defend the claim or completely indemnify the employee for all costs and judgments or settlements. (Tort Immunity Act, section 2-302.)

And, when a governmental entity is sued directly for an act or omission of an employee, it may assert any defense that would be available to a private person (Tort Immunity Act, section 2-110), and it may assert non-liability of the employee as an absolute defense. (Tort Immunity Act, section 2-109.) Thus, the Act contemplates that either the governmental entity or the employee, or both, may be sued pursuant to its provisions, for the act or omission of an employee.

The majority opinion construction of sections 2-109 and 2-202 of the Tort Immunity Act is unwarranted. These sections should be interpreted in a manner consistent with the procedure normally followed in suits against principals for the wrongful acts of their agents. It should be sufficient for recovery against a public entity to prove that an employee would be liable even though no employee is defendant in the action.

The Tort Immunity Act is predicated upon the Molitor rule of liability. The purpose of the Act seems to be to specify exemptions to the general principle of governmental liability.

Section 2-202 of the Tort Immunity Act provides that:

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

Under this section, the legislature granted immunity to local public employees for an act or omission in the execution or enforcement of any law, if the act or omission constituted simple negligence. It followed the Molitor rule of liability for an act or omission which constituted wilful and wanton negligence. It would, thus, appear that the complaint asserted a cause of action in which Williams would be liable under section 2-202, which deals with immunity of public employees.

Under section 2-109 of the Act, which deals with immunity of local public entities, “a local public entity is not liable for an injury resulting from an act or omission of its employees where the employee is not liable.” Thus, an employee, such as Williams, would appear to be liable only for an act or omission which constituted wilful and wanton negligence; and, consequently, the County would be liable only in event the act or omission constituted wilful and wanton negligence. Under section 2-109, there could be no liability on the part of the County if Williams were guilty of simple negligence only.

In the light of these provisions, it seems that the legislature intended that the County could be sued directly in the case at bar, without joining Williams as a party defendant. The question which arises is whether the provisions of the Indemnification Statute, when considered in pari materia with the provisions of the Tort Immunity Act to the extent heretofore indicated, require a different construction. I think not!

It appears unreasonable to permit the provisions of the Indemnification Statute — a single paragraph in the Corporate Name and Powers General Act, which deals with the subject of indemnity by a single governmental entity (the County) — to override the provisions of the Tort Immunity Act, which covers the spectrum of the immunity of all local governmental entities and governmental employees.

The Indemnification Statute, as originally amended in 1959, purported to deal only with the question of immunity. It provided for nonliability of the county. Subsequently, it was again amended in 1966 to provide both for the immunity of the county and the indemnity of a sheriff or deputy sheriff in certain cases. As the majority opinion points out, that portion of the statute which purported to deal with immunity was held to be unconstitutional by the Supreme Court in Hutchings v. Kraject, supra. There remained, as the only valid portion, that part' of the statute dealing with indemnification. Subsequently, the legislature, in 1967, again amended the statute, removing all reference to immunity, and addressed itself solely to the problem of indemnification. This history, including the subsequent legislation (Lubezny v. Ball, 389 Ill 263, 266, 59 NE2d 645 (1945); Radford v. Cosmopolitan Nat. Bank of Chicago, 52 Ill App2d 240, 247, 201 NE2d 622 (1964)) vividly illustrates that the Indemnification Statute is just that — it deals with the question of indemnity of a sheriff or deputy by a county, a question we are not concerned with here. It does not grant, and should not be a basis for granting immunity.

It would seem more appropriate to subordinate the provisions of the Indemnification Statute, and to construe the two enactments to provide that the plaintiff may have a cause of action in the case at bar directly against the County for the wilful and wanton conduct of Williams in the performance of his duties as deputy sheriff, without the necessity of joining Williams as a party; and that indemnification is precluded under the provisions of the Indemnification Statute in event the injury resulted from the wilful and wanton misconduct of the sheriff or his deputy. Under this construction, the County could be held liable for the wilful misconduct of its sheriff or deputies and could be compelled to pay the judgment against it in such case; also, it would be compelled to indemnify such officer for any judgment recovered against him for an injury caused by his act or omission, which constituted simple negligence. Consequently, I would reverse and remand the cause for further pleadings and trial, all consistent with the views expressed herein.

Under the statutory construction — either of the majority opinion or as I have suggested — the Indemnification Statute requires indemnity for all law enforcement activities of sheriffs and deputies which are immune from liability under section 2-202 of the Tort Immunity Act; namely, acts or omissions based on simple negligence, but forbids indemnity in those cases in which such officers are liable under that section; namely, acts or omissions which constitute wilful and wanton negligence. This, in my opinion, permits sections 2-202, 2-109 and 2-302 of the Tort Immunity Act and the Indemnification Statute to remain as an undigested and indigestible lump in the middle of our law — a circumstance which should not exist and which should receive legislative attention.

This litigation, and that reflected in Hutchings v. Kraject, supra; Harvey v. Clyde Park Dist., 32 Ill2d 60, 203 NE2d 573 (1965), and similar cases, lies in the wake of the Molitor decision. The law in the area of governmental immunity and liability, is in dire need of further clarification with reference to the problem involved in this litigation. The clarification needed requires more than interstitial overhauling through judicial construction : it demands legislative modification!


source: Caselaw Access Project

author: GOLDENHERSH, P. J.

license: Public Domain

text:
    Dorothy Jones, Plaintiff-Appellee, v. Granite City Steel Company, Defendant-Appellant.
    Gen. No. 67-93.
    Fifth District.
    January 20, 1969.

      Gordon Burroughs, Burroughs, Simpson & Burroughs, and Leon Scroggins, of Edwardsville, and Emerson Baetz, of Alton, for appellant.
    Burton C. Bernard and Joseph R. Davidson, of Granite City, for appellee.
   GOLDENHERSH, P. J.

Defendant appeals from the judgment of the Circuit Court of Madison County in the amount of $70,000 entered upon a jury verdict in plaintiff’s action for personal injuries.

Plaintiff was employed as a cashier by Clyde Chiles, who operated a cafeteria in a building leased from defendant, and situated in defendant’s main plant premises in Granite City.

On the date in question, shortly before 3:00 p. m., plaintiff parked her car in a parking lot outside the main plant premises, walked through the gate, and in a southerly direction to the cafeteria. She entered through a door at the northwest corner of the building. This door was for use by Chiles’ employees, and a door located on the south side of the building was used by the customers (principally defendant’s employees). There was an area to the west of the building where defendant permitted cars to be parked, but plaintiff did not have a permit to drive inside defendant’s main plant.

At 11:00 p. m. plaintiff was “checked out” by her Supervisor, Mrs. Bargiel, Mrs Bargiel’s car was parked to the west of the cafeteria building. After checking plaintiff out, she went to her car and waited for plaintiff to join her. Plaintiff was going to ride with her to the lot outside the main gate where her car was parked. Plaintiff testified that this was her usual manner of leaving defendant’s premises.

Plaintiff left the building through the employees’ door, and started toward Mrs. Bargiel’s car. Mrs. Luedtke, the cashier then on duty, called to her from a window on the west side of the building, south of the employees’ door. Plaintiff started toward the window, fell in a hole, and was injured. Plaintiff’s exhibit 3, a photograph, shows a hole or depression, and an exposed metal pipe, located under a window, and a short distance from the west wall of the building.

Defendant does not seek a new trial, and relying on the contentions hereafter discussed, argues the judgment should be reversed. Defendant concedes that plaintiff was the invitee of defendant while she was about her job, but contends that she was such invitee only to the extent of the premises which were her place of work, and to the extent of the usual and customary way of getting to and from her work. Defendant argues that the hole into which plaintiff fell was so close to the windowsill as to be “virtually under it,” there was not, and had never been, a pathway alongside the building, the hole was 50 feet from the course plaintiff took to leave her place of work, and in the opposite direction from the course she should have followed to leave defendant’s premises; that while in the area in which she was injured she was no longer an invitee, and defendant owed her no duty of due care.

Plaintiff testified that no one had ever told her where she should, or should not, walk. Mr. Maupin, manager of the cafeteria, testified that no one acting for defendant had ever told him where to walk, and he had not told plaintiff where to walk. He also stated that he customarily parked his car in the area west of the building, and had, many times, at night, walked near the depression where plaintiff fell.

In Pauckner v. Wakem, 231 Ill 276, 83 NE 202, the Supreme Court held that an invitation to come upon premises must be held broad enough to give the invitee “the protection of the law while lawfully upon that portion of the premises reasonably embraced within the object of his visit.” 1. c. 282, 83 NE I. c. 205.

The owner owes the duty to exercise reasonable care to keep in a safe condition those portions of the premises within the scope of the invitation, which include those areas which it is necessary or convenient for the invitee to use in the course of the business which is the purpose of the invitation, and those portions of the premises where the presence of the invitee should reasonably be anticipated. Packard v. Kennedy, 4 Ill App2d 177, 124 NE2d 55. When, or whether, an invitee has lost that status is ordinarily a question for the trier of facts. Larson v. Illinois Cent. R. Co., 2 Ill App2d 102, 118 NE2d 886. The owner is under a duty to provide an invitee reasonably safe means of ingress and egress, even when the route chosen is not the customary one, but is one which is allowed by the owner. Packard v. Kennedy (supra).

Defendant argues that the facts are not in dispute, and the issue is one of law, and not of fact. We have examined the authorities cited by defendant in support of this contention (Briney v. Illinois Cent. R. Co., 401 Ill 181, 81 NE2d 866; Brett v. Century Petroleum, Inc., 302 Ill App 99, 23 NE2d 359; Mount Greenwood Cemetery Ass’n v. Hildebrand, 126 Ill App 399; and Jones v. Schmidt, 349 Ill App 336, 110 NE2d 688) and do not find them persuasive. In Briney v. Illinois Cent. R. Co., and Brett v. Century Petroleum, Inc., there was no evidentiary basis for a finding that the defendants should reasonably have expected the plaintiffs to enter upon the portions of the premises where they were injured. Mount Greenwood Cemetery Ass’n v. Hildebrand is so clearly distinguishable on the facts as to require no further comment. In Jones v. Schmidt, the Appellate Court specifically stated that it was a question of fact for the jury to decide whether the invitation was limited to a certain place (page 340).

In this case plaintiff’s work required her presence in the building leased to her employer. Although there were separate doors for Chiles’ employees and the customers who patronized the cafeteria, there is no evidence that plaintiff could not freely, and at will, enter or leave by either door. Upon the evidence adduced it was a fact issue as to whether defendant might reasonably expect that plaintiff would traverse the area to the west of the building to enter the automobile of her fellow employee, talk to someone through the window, walk around the building, or enter or leave through the customers’ door. The invitation extended over the portion of defendant’s premises which it might reasonably expect her to enter, and in the absence of an express limitation, cannot be restricted as a matter of law to a runway extending from the north gate of defendant’s plant to the northwest door of the cafeteria building. In its instructions, tendered and given, defendant presented the question as one of fact for the jury. There is sufficient evidence to support the verdict, and the trial court properly denied defendant’s motions for directed verdict.

Defendant contends that assuming, arguendo, that plaintiff was within the scope of her invitation at the time she suffered the injury, she was guilty of contributory negligence as a matter of law.

Plaintiff testified that when she heard her name called she was 6 or 7 feet from the building, there was light coming through the windows on that side of the building, in the area about 6 feet from the side of the building she could not see what was on the ground. She stated “I was looking in front of me, where I was going, my foot went down in the hole and it got caught.”

On cross-examination she testified that she could not see the ground upon which she was walking, she was looking towards the lighted window; she did not see what she fell over.

The cafeteria manager testified that the “device” over which plaintiff fell was about a foot from the building, and there is no path there. He stated further that the area is illuminated, “you could walk around the building without any trouble.”

Mrs. Bargiel testified that the inside of the cafeteria is always lighted and it shines out some.

An engineer employed by defendant testified that the area was lighted by a streetlight, turned on and off by sunlight through a photoelectric cell.

In our opinion the evidence presented a fact issue for the jury as to whether plaintiff was contributorily negligent. Packard v. Kennedy (supra). Applying the rule of Pedrick v. Peoria & Eastern R. Co., 37 Ill2d 494, 229 NE2d 504, we hold that the trial court correctly submitted this issue to the jury and did not err in denying defendant’s post-trial motions.

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

Judgment affirmed.

EBERSPACHER and MORAN, JJ., concur.


author: MORAN, J.

text:
    George Spees, Plaintiff-Appellant, v. Elmer Stapleton, Defendant-Appellee.
    Gen. No. 67-141.
    Fifth District.
    January 20, 1969.

      Harris, Holbrook & Lambert, of Marion, for appellant.

      Donald R. Mitchell and William Kent Brandon, of Murphysboro, for appellee.
   MORAN, J.

George Spees filed suit for personal injuries against Elmer Stapleton in the Circuit Court of Williamson County. After the depositions of both Spees and Stapleton were taken, Stapleton filed a motion for summary judgment on the ground that the undisputed facts contained in the depositions attached to his motion barred Spees’s suit because his injuries arose out of and in the course of his employment. Ill Rev Stats (1967), c 48, par 138.5 (a). The trial court granted Stapleton’s motion and entered judgment in favor of Stapleton and against Spees. Spees appeals.

The essential facts testified to in the depositions are undisputed and reveal that Spees and Stapleton were employed by the Central Illinois Public Service Company on February 25, 1965, the time of the accident. Both parties, along with thirteen other employees, assembled for work each day at a gas plant maintained by the Central Illinois Public Service Company on Route 37, north of Marion. From this starting place employees would pick up the company trucks and begin their daily duties.

The accident occurred at about 7:30 a. m., on the company parking lot. A six-inch snowfall had occurred the night before the accident with drifts four and five feet high in places. Spees arrived at work shortly before 7:30 a. m., intending to watch the usual morning game of washers which the employees played. Thirteen of the fifteen employees arrived at the plant about 7:30 a. m., either to engage in or to watch the game of washers. Work did not begin until 8:00 a. m., and this was strictly adhered to.

After parking his pickup truck on the parking lot, Spees started inside the building when he noticed that Stapleton had driven onto the parking lot and became stuck in the snow. At this point he called to Stapleton and offered to pull him out. Stapleton answered, “All right.”

While Stapleton was rocking his car back and forth in an effort to free it, Spees drove his truck behind Stapleton’s car, leaving eight to ten feet between the two vehicles. Spees got out and started to hitch a chain from his truck to Stapleton’s car in order to pull him out. While Spees was looking toward his truck, Stapleton drove his car back into Spees, pinning him to the front bumper of the truck.

Stapleton testified that after Spees offered to aid him that he did not pay any more attention to him because he thought that if Spees were going to give him a pull, he would first give some kind of notice before tieing on. Stapleton further stated that his windows were covered with steam and moisture on the inside and he could only see through the front windshield; that at no time before the impact did he ever apply his brakes, honk his horn, or give a signal of any kind; that he understood that Spees was going to pull him from the rear with a chain; and that it was about three or four minutes from the time he had the conversation with Spees until the accident occurred.

As a result of the accident, Spees sustained a broken leg and was off work for eleven weeks. His leg still builds up pressure and he has pain behind the knee. Spees testified that he did not file for workmen’s compensation because he was not hurt on the job and that he did not make any claim against Central Illinois Public Service Company.

Appellant contends that this accidental injury did not arise out of or in the course of his employment so as to render the provisions of the Workmen’s Compensation Act applicable and bar this common-law action.

The phrases, “arising out of” and “in the course of” the employment, are used conjunctively in our Act (Ill Rev Stats 1967, c 48, § 138.2; Chmelik v. Vana, 31 Ill2d 272, 201 NE2d 434) thus requiring the presence of both elements to make the Workmen’s Compensation Act applicable.

The words, “arising out of” refer to the origin or cause of the accident and presuppose a causal connection between the employment and the accidental injury, and in order for an injury to come within the Act it must have had its origin in some risk connected with or incidental to the employment, so that there is a causal connection between the employment and the injury. Chmelik v. Vana, supra. Spees’ offer to pull Stapleton out of the snow is in no way connected with his employment. Any danger which might exist from the performance of this good deed was not peculiar to the employment and could not be said to flow as a natural consequence from it. The offer of assistance subjected Spees to no more of a risk than that to which the public would be subjected. Anyone could have entered the parking lot for the purpose of aiding Stapleton.

The words, “in the course of the employment,” refer to time, place and circumstances under which the accident occurred and it is stated generally that an accidental injury is received in the course of the employment when it occurs within the period of the employment at a place where the employee may reasonably be in the performance of his duties, and while he is fulfilling those duties or engaged in something incidental thereto. Chmelik v. Vana, supra.

The requirement of time has been extended to include a reasonable time before commencing and after concluding actual employment. Chmelik v. Vana, supra. What is a reasonable time is difficult to ascertain and will vary depending on the facts of each particular case. In this case we cannot say that thirty minutes is a reasonable time. Both parties admit that the only reason they arrived as early as they did was because of the washer game. This was a purely personal motive and in no way advanced the employer’s work. The practice of commencing work promptly at 8:00 a. m., including any preparation for leaving the plant, was strictly adhered to. For the purposes of their employment there was thus no reason for an employee to arrive thirty minutes early.

The requirement of place has been extended to include parking lots provided by the employer for the employees. DeHoyos v. Industrial Commission, 26 Ill2d 110, 185 NE2d 885. The reason for the inclusion of company parking lots is that the employee is there subjected to hazards to which the general public is not exposed. Such a conclusion makes it incumbent upon the employer to maintain a safe parking lot. No one is charging in this case that the parking lot was unsafe. This accidental injury was not the result of the fact that Spees was on the parking lot, but rather from the fact that he elected to aid Stapleton. The requirement of place is met only when it can be said that the employee is where he reasonably should be and is in some way in the performance of his duties. This performance includes even walking from the parking lot to the plant because the employment necessarily requires this action but does not include a personal venture which is not incidental to the employment.

The employee must also be fulfilling his duties or engaged in something incidental thereto. There is no question here that Spees had not yet begun his duties. And, unless an accident occurs while the claimant is actually performing the duties of his job, a risk is not considered incidental to his employment unless he is exposed to that risk to a greater degree than other members of the public. Revere Paint & Varnish Corp. v. Industrial Commission, 41 Ill2d 59, 242 NE2d 1. Spees was not so exposed.

We therefore conclude that where an employee is injured while assisting a fellow employee in a personal matter on the company parking lot thirty minutes before starting time, such injury does not arise out of or in the course of the employment so as to render the Workmen’s Compensation Act applicable.

Our view of the case makes it unnecessary to consider other arguments raised on appeal.

The summary judgment of the Circuit Court of Williamson County is accordingly reversed and the cause remanded for further proceedings not inconsistent with this opinion.

Reversed and remanded.

EBERSPACHER and GOLDENHERSH, JJ., concur.


author: MR. PRESIDING JUSTICE ABRAHAMSON

text:
    Marie S. Nehrbass, Plaintiff-Appellant, v. The Village Tavern of Long Grove, Inc., an Illinois Corporation, Defendant-Appellee.
    Gen. No. 67-172.
    Second Judicial District.
    January 20, 1969.

      Hubachek, Kelly, Miller, Rauch & Kirby, William T. Kirby, and Alan O. Amos, of Chicago, for appellant.
    Kaufman, Wasneski and Yastrow, of Waukegan, for appellee.
   MR. PRESIDING JUSTICE ABRAHAMSON

delivered the opinion of the court.

This is an appeal from the Circuit Court of Lake County. The action was brought by plaintiff pursuant to c 24, § 11-13-15 (Ill Rev Stats 1967) against the defendant to enjoin an alleged violation of the Zoning Ordinance of the Village of Long Grove, Illinois. No questions were raised on the pleadings. The case was submitted to the trial judge on a “Stipulation of Uncontested Facts.” Plaintiff appeals from the trial court’s dismissal of her complaint.

Marie S. Nehrbass, plaintiff, owns a dress shop and a restaurant in the Village of Long Grove, immediately adjacent to the premises owned by defendant and upon which defendant operates a tavern and restaurant known as the Village Tavern. At the time the zoning ordinance in question was adopted, on November 18, 1957, the frame building on the defendant’s property was being used as a tavern and restaurant and continues to be so used. Defendant acquired the premises known as the Village Tavern in June of 1962. It also acquired a vacant parcel of land between the tavern and plaintiff’s building. The trial court found that:

“In 1963 defendant sought and obtained a building permit for an ‘addition for the Village Tavern’ and in accordance with the plans and specifications submitted to the Village constructed a one-room addition to his existing frame building. Such construction externally gives the appearance of two additional and separate store fronts, but internally consists of one large room with ingress to the existing frame building through an arch opening eight feet by seven feet. The new construction was occupied from the date of completion until July 15, 1964, by three tenants and thereafter defendant took possession and installed tables in the new addition and is now serving alcoholic beverages and food in said addition with kitchen and bar facilities located in the old building .. . .”

It is plaintiff’s position that defendant is operating in violation of Section III E of the ordinance which provides that no building or tract of land shall be devoted to any use other than one which is specified as permitted or special use in Section VI in the zoning district. In the alternative, plaintiff argues that Section VI B-2 g is unconstitutional and therefore the Village Tavern is a nonconforming use and may not be expanded.

Defendant denies any violation of the Long Grove Zoning Ordinance and contends that plaintiff, having shown no special damages, lacks a standing to sue and, further, may not use c 24, § 11-13-15 (111 Rev Stats 1967) as a vehicle for attacking the validity of the zoning ordinance.

Long Grove is a small village in Lake County with a distinctly rural atmosphere. In the Preamble of its Zoning Ordinance it stressed that the Village was incorporated for the purpose of preserving a semirural mode of living. The Zoning Ordinance created two residential districts, both single-family, one providing for not less than three acres per residence, the other not less than two acres per residence. Two business districts were created, one designated as the “Antique Center” and the other as a local shopping center. The provisions delineating the Antique Center provide as follows:

“B. ANTIQUE CENTER
“1. General Conditions
“a) Each business establishment is restricted to not more than 5000 square feet of floor area.
“2. Permitted Uses — B1 District
“a) Antique Shops
“b) Art and School Supply Stores and Studios
“c) Gift Shops
“d) Professional Offices
“e) Restaurants and Tea Rooms
“f) Accessory uses
“g) One tavern, an existing use.”

The provisions covering the local shopping center provide for barbershops, beauty parlors, candy and ice-cream stores, clothes pressing establishments, dry-goods stores, drugstores, dry-cleaning and laundry receiving stations, food stores, grocery stores, meat markets, bakeries and delicatessens, g'arden supply and seed stores and businesses of similar character. No taverns are permitted.

The reasoning behind plaintiff’s first contention seems to be that since the expansion of the permitted use took place, at least in part, on a piece of adjoining property, that this was a violation of the zoning ordinance. This reasoning implies that the zoning ordinance has not zoned a district in which various uses may exist but has zoned the area on a lot to lot basis. The rationale of plaintiff’s alternative argument is that the zoning ordinance, by using the phrase “one tavern” is attempting to create a monopoly, which it may not do, and that the ordinance insofar as it refers to the tavern is void and therefore the Village Tavern is a nonconforming use and may not be expanded or enlarged.

In support of this contention plaintiff cites Suburban Ready-Mix v. Village of Wheeling, 25 Ill2d 548, 185 NE2d 665. In that case the Village Zoning Ordinance in its industrial district had provided for concrete ready-mix plants. At the time there was only one concrete ready-mix plant in operation in the Village. Subsequently, an amendment to the Zoning Ordinance was adopted prohibiting concrete mixing plants in an industrial district. Plaintiff, who owned property adjacent to the existing concrete mixing plant, applied for permission to construct a concrete mixing plant on his property, which permission was denied. The trial court held that the amendatory ordinance was invalid, as a zoning ordinance should not discriminate in favor of any citizen, and that this ordinance created a special privilege. The Supreme Court on appeal held that the amendatory ordinance was not void in its entirety but was merely invalid insofar as it prohibited concrete mixing plants within the industrial area. The Court did not, as plaintiff would have us do, invalidate a portion of the ordinance relating to the existing concrete mixing plant; it simply held that it was invalid as to others who wished to operate similar plants in areas zoned industrially. In that case the Supreme Court said at p 552:

“Even if it did not operate to create a monopoly, in view of the existing plant, the ordinance in the case at bar exceeds the limits of the powers delegated by statute. In its effect it does not merely classify for the purpose of location but excludes or prohibits from all districts. Such a prohibition is beyond the authority prescribed by statute. Under the applicable provisions the village is authorized to divide the municipality into districts and to prohibit uses ‘incompatible with the character of the districts.’ (Citation omitted.) There is no intimation that the ready-mix concrete business is not a lawful one, and as this court observed in People ex rel. Trust Company of Chicago v. Village of Skokie, 408 111 397, ‘nowhere does the legislature grant to municipalities the power to wholly restrict a lawful business from their boundaries.’ (Citation omitted.) Moreover, there is nothing about a ready-mix concrete plant that is ‘incompatible with’ an industrial district, so as to justify a municipality in prohibiting it therefrom.
“Since the amendatory ordinance in this case purports to exclude a number of other uses, none of which is involved here, the judgment of the circuit court was too broad in declaring it void in its entirety. The judgment is modified so as to declare the amendatory ordinance invalid insofar as it prohibits concrete mixing plants and/or concrete mixing equipment.”

Applying the rationale of the above decision to the zoning ordinance before us would not require us to hold that the ordinance is unconstitutional with regard to its reference to taverns and therefore the Village Tavern is a nonconforming use which may not be expanded, but rather it would lead us to hold that, to the extent the ordinance attempts to exclude the establishment of other taverns in this district, it is unconstitutional and therefore anyone securing the necessary license from the Liquor Control Board would have the right to operate a tavern within this particular zoning district. The Village Tavern, being a conforming use, could be expanded in the same manner as any other conforming use could be expanded.

In view of our finding that the enlargement of the Village Tavern is not prohibited by the zoning ordinance of the Village of Long Grove, we need not consider the various contentions of the defendant with regard to the standing of the plaintiff to have maintained this action.

The judgment of the trial court is affirmed.

Judgment affirmed.

MORAN and DAVIS, JJ., concur.


author: EBERSPACHER, J.

text:
    People of the State of Illinois, Appellee, v. Eugene Luther Hazen, Defendant-Appellant.
    Gen. No. 68-4.
    Fifth District.
    January 20, 1969.

      Robert H. Rice, of East St. Louis, for appellant.
    Joseph W. Hickman, State’s Attorney of Franklin County, of Benton, for appellee.
   EBERSPACHER, J.

The defendant, Eugene Luther Hazen, was indicted upon the charge of Theft of Property in excess of $150 in value. The case was tried before a jury which returned a verdict finding the defendant guilty. The defendant has appealed from the judgment upon that verdict.

The nature of alleged errors, as well as the result that we reach, does not require that we summarize the testimony. It is sufficient to note the defense presented by the defendant was alibi. The defendant sought to establish that on the day of the alleged offense he was in the states of Florida and Georgia and could not have possibly committed the theft alleged to have occurred in Benton, Franklin County, Illinois.

In his effort to reverse the conviction the defendant alleges that the Court erred in giving two instructions, its refusal to give another instruction and the admission of certain testimony.

The first instruction complained of by the defendant is People’s Instruction No. 5, which provided as follows:

“It is not necessary that the jury believe that every incriminating fact or circumstance in evidence before them has been proved beyond a reasonable doubt, but that it is sufficient if the jury believe from the evidence in the case that every material allegation in the indictment in manner and form as charged therein has been proved beyond a reasonable doubt.”

This same instruction was given in People v. Berne, 384 Ill 334, 51 NE2d 578 (1944) and resulted in the Supreme Court’s reversal of the conviction. The Court concluded in the Berne case:

“That such an instruction is erroneous has been consistently followed since the rule was first announced. ... It is thoroughly established it is reversible error to give instructions which tell the jury it may consider proof of guilt established beyond reasonable doubt if the jury believes the material allegations in the indictment have been proved, unless there is an instruction defining the material allegations of the indictment.” (384 Ill 339-340.)

In the present case there was no instruction given to the jury defining the material allegations of the indictment.

In response to the allegation of error the People have argued that the defendant made an insufficient objection at the instruction conference and that the defendant made the same error by tendering and the Court giving an instruction which also referred to the material allegations of the indictment without defining them. Both of the arguments are without merit. Our examination of the record of the instruction conference reveals that the defendant objected on the grounds that the instruction was misleading and was an incorrect statement of the law. The fact that the defendant further stated that this would be a good instruction if it were reworded does not diminish the sufficiency of the objection. The error is not in the instruction itself, but the failure to give a second or additional instruction stating what the “material allegations” were. By the same token the error is not cured by the defendant making the same error. Accordingly, the conviction must be reversed.

Inasmuch as our decision will require a new trial of this cause we shall comment briefly on the remaining allegations of error in order to prevent their reoccurrence at a second trial.

On the question of alibi the following instruction was given:

“The Court instructs the jury that where an alibi is relied on as a defense in order to maintain it, it is incumbent on the defendant to support it by such facts and circumstances as are sufficient when considered in connection with all the other evidence in the case to create in the minds of the jury a reasonable doubt of the truth of the charge against the defendant.”

Alibi instructions have been particularly bothersome and have led to a multitude of reversals. (See the cases collected in People v. Pearson, 19 Ill2d 609, 169 NE2d 252 (1960).) In the instant case it is our opinion that the language used in the instruction, particularly the phrase “. . . in order to maintain it, it is incumbent on the defendant . . .” speaks in the language of burden of proof and runs counter to the basic notion that the defendant’s guilt must be established beyond a reasonable doubt. People v. Fisher, 295 Ill 250, 260, 129 NE 196 (1920); People v. Pearson, supra.

We further note that the Illinois pattern instructions in criminal cases which became effective January 1, 1969, pursuant to Supreme Court Rule 451, do not contain an alibi instruction and contain a Committee recommendation that no instruction be given on the subject. Illinois Pattern Jury Instructions — Criminal, section 24.05.

We see no need in passing on the instruction refused by the Court which also pertained to alibi.

The last allegation of error raised by the defendant has to do with the admission of certain testimony. During the People’s evidence a law enforcement officer was permitted to testify, over objection, as to the contents of a radio message he received immediately prior to his arrest of the defendant. The same officer further testified as to his conversation with another law enforcement officer concerning the identity of the defendant. The second officer later testified that the complaining witness upon viewing the defendant after his arrest nodded his head in response to a prearranged signal which related to the identity of the defendant.

Such evidence is clearly hearsay and should not be permitted at any new trial that may be had in this cause. People v. Wright, 65 Ill App2d 23, 212 NE2d 126 (1965); People v. Harrison, 25 Ill2d 407, 185 NE2d 244 (1962).

The judgment of the Circuit Court of Franklin County is reversed and the cause is remanded for a new trial.

Reversed and remanded.

GOLDENHERSH and MORAN, JJ., concur.


text:
    Corine Scoggins, Plaintiff-Appellee, v. Village of Hartford, Illinois, a Municipal Corporation, Defendant-Appellant.
    Gen. No. 68-28.
    Fifth District.
    January 20, 1969.

      Coppinger and Carter, of Alton (John B. Coppinger, of counsel), for appellant.
    Hoagland, Maucker, Bernard & Almeter, of Alton (James K. Almeter, of counsel), for appellee.
   GOLDENHERSH, P. J.

Defendant, Village of Hartford, appeals from the judgment of the Circuit Court of Madison County entered in compliance with the mandate of this court. (See Scoggins v. Village of Hartford, 86 Ill App2d 233, 229 NE2d 550.) As stated in that opinion, by agreement of the parties, the issues of liability and damages were tried to a jury, and the issues with respect to a purported release were tried to the court. The jury returned a verdict for the plaintiff, but the court found that the release barred recovery. Thereupon the court entered judgment for plaintiff on the verdict, nunc pro tunc, and immediately thereafter vacated that judgment, and entered judgment in favor of the defendant. On appeal this court reversed the judgment and remanded the cause with directions to reinstate the judgment on the verdict.

The record shows that the mandate of this court was issued on September 12, 1967, and filed in the office of the Circuit Clerk of Madison County on September 13, 1967. On October 11, 1967, defendant filed its post-trial motion praying entry of judgment n. o. v., or alternatively, for a new trial. On December 20, 1967, the trial court denied the motion and entered final judgment. Notice of Appeal was filed on January 19,1968.

Defendant contends that the trial court summarily denied its post-trial motion without considering the errors charged therein, and argues that the cause should be remanded with directions to consider, and decide, the matters raised in its motion.

Plaintiff’s contention is twofold, first, that defendant has waived its right to appeal because of its failure to file a post-trial motion within SO days after the verdict was returned, and second, the motion filed after remand was premature in that it was filed prior to the entry of judgment as directed by the mandate.

Section 68.1(3) of the Civil Practice Act (c 110, HI Rev Stats 1967) provides that post-trial motions must be filed within 30 days after the entry of judgment. The judgment previously entered on the verdict was vacated immediately, and there was no reason for defendant to file a post-trial motion at that time. In filing its motion within 30 days of the date on which the mandate was filed in the circuit court, defendant complied with the statute.

As to plaintiff’s second contention, the mandate directed the circuit court “to reinstate the judgment entered on the verdict.” This was a ministerial act to be performed by the circuit clerk, chapter 25, section 14, 111 Rev Stats 1967, and defendant was not required to wait until it was performed to file its motion.

In its order, the trial court refers to cases cited in Volume 3, section 1000 of Illinois Law and Practice. Upon examining those authorities, we conclude that the trial court denied the post-trial motion without considering the errors charged, under the misapprehension that our mandate was intended to empower it only to enter the judgment, and thereafter conduct no further proceedings.

The author of both this, and the prior opinion, in retrospect, perceives the wisdom of including in the mandate a directive for further proceedings in accordance therewith, and the results of the failure so to do. The trial court correctly followed the mandate, and the resultant error was caused, not by the trial court, but by this court.

Having concluded that the defendant’s post-trial motion was timely filed at the first instance when it was confronted with an adverse judgment, justice requires that the trial court be given an opportunity to consider the errors charged, free of the compulsion engendered by the omission from our prior mandate.

For the reasons set forth the judgment of the Circuit Court of Madison County is reversed, and the cause remanded with directions to consider, and rule upon defendant’s post-trial motion, and for further proceedings consistent with this opinion.

Judgment reversed and remanded with directions.

MORAN and EBERSPACHER, JJ., concur.


text:
    Linda Johnson, a Minor, by Her Father and Next Friend, Lace M. Johnson, Plaintiffs-Appellants, v. James C. Cunningham, Defendant-Appellee. Lace M. Johnson, Plaintiff-Appellant, v. James C. Cunningham, Defendant-Appellee.
    Gen. Nos. 68-79, 68-80.
    Second District.
    January 23, 1969.

      John P. Graves, Jr., Gilbert, Powers & Graves, of Rockford, for appellants.
    Maynard, Maynard and Brassfield, of Rockford, for appellee.
   MR. PRESIDING JUSTICE ABRAHAMSON

delivered the opinion of the court.

On December 18, 1964, between 7:30 and 8:00 p. m., an automobile driven by the plaintiff, Lace Johnson, was struck by one driven by the defendant, James Cunningham, in the intersection of Leland and Wilson Avenues in Loves Park, Winnebago County. Lace Johnson and his minor daughter, Linda, who was riding with him, were injured as a result of the accident and separate suits were brought against the defendant that alleged the accident was caused by his negligence and sought recovery against him for the injuries suffered and damage to the Johnson automobile. The suits were consolidated for trial and at its conclusion the jury returned a verdict that found the defendant not guilty in both suits and a special finding that Lace Johnson was guilty of contributory negligence. Judgment was entered on the verdicts and, after denial of post-trial motions, this appeal followed.

Lace Johnson testified he was driving north on Leland Avenue (a north-south street) on the occasion in question and had reduced his speed to approximately fifteen miles per hour as he approached the intersection with Wilson Avenue since he intended to stop at the northeast corner and drop off his daughter. He first observed the Cunningham auto westbound on Wilson (an east-west street) when he was 40 feet south of the intersection and “thought” he had ample time to clear the intersection since Cunningham was about 200 feet east of it. The next time he observed the other car was just before the impact. He further testified that his front bumper was across Wilson at the moment of impact.

Steven Blankenship testified for the plaintiff that he was waiting with his girl friend for their mutual friend, Linda Johnson, on the northwest corner of Wilson and Leland Avenues about 50 feet from the intersection and observed the accident. Blankenship first saw the Cunningham automobile when it was 60 feet east of the intersection and “coming very fast.” He stated that the Johnson car had reached the north edge of the intersection by that time. One second later the impact occurred.

Lace Johnson had given a statement to a court reporter 10 days after the accident to the effect he recalled nothing that occurred either immediately prior to or at the time of impact. Blankenship had also given prior statements inconsistent with his testimony during the trial.

Cunningham testified that he was driving west on Wilson about 30 miles per hour. When he was approximately 60 feet from the intersection, he turned his head slightly to the right to observe a southbound vehicle on Leland that then made a left turn onto Wilson. He first saw the Johnson car when it was “not in the intersection but pretty close to it.” His front bumper struck the right side of the Johnson car.

The evidence further disclosed that both Leland and Wilson Avenues are narrow, blacktopped roads with no curbs and no traffic controls at the intersection. A police officer investigated the accident and concluded that the impact occurred about 4 feet west of the east edge of Leland and 8 feet south of the north edge of Wilson. Both cars came to rest a considerable distance from the point of impact.

This appeal is based on the plaintiffs’ contention that they were denied a fair trial because of the improper conduct and comments of the defense counsel during the trial; the refusal of the trial court to permit the impeachment of a defense witness; the elicitation of prejudicial testimony during an improper cross-examination conducted by defense counsel; and an erroneous instruction given the jury by the trial court.

The plaintiffs urge that defense counsel engaged in a calculated and persistent effort to demean and degrade the attorney for the plaintiffs before the jury and cite numerous instances to support that contention. They point out that defense counsel, during a voir dire examination conducted by plaintiffs’ attorney, characterized a short preliminary statement as a “half hour examination” ; during the trial reprimanded his opponent for making a “speech”; remarked that a question posed by the plaintiffs’ attorney that elicited an unresponsive answer “should not have been asked”; and that on other occasions had laughed at the attorney for the plaintiffs, and made insinuations that he was guilty of unspecified misconduct. It is certainly true that trial attorneys should not engage in personal vituperation however long, however arduous and however close the character of the litigation. “Abuse of opposing counsel . . . has no proper place in a trial.” Eizerman v. Behn, 9 Ill App2d 263, 287, 132 NE2d 788.

We have carefully reviewed the record in regard to these instances of alleged abuse by defense counsel of his opponent. We find that the remarks on some occasions were not consistent with the decorum of a trial but that they had shown no pattern of personal attack or vituperation. We are unable to find any insinuations, implied or otherwise, that the attorney for the defendant was guilty of misconduct. While we deplore any instances of personal criticism between trial counsel during the course of a trial, we would not be realistic if we did not recognize that during a 4-day trial frayed nerves will occasionally permit sharp exchanges to occur. The instances in this case were few, brief, isolated and not of such a character to prejudice the plaintiffs by the degradation of their counsel.

In addition to the personal attack on counsel, the plaintiffs complain that they were prejudiced by the implication that Lace Johnson was present when a court reporter took the inconsistent statement made by Steven Blankenship prior to trial. However, it is clear that the witness referred to an adjustor named Walter Johnson and the jury was so informed. Similarly, the occasional confusion in the use of terms “deposition” for “statements” and “certainty” for “reasonable medical certainty” during the testimony of some witnesses was quickly and effectively corrected.

Plaintiffs further contend prejudice resulted by defense counsel’s and the Court’s description of certain written evidence as “illegible.” Shortly after the accident, Cunningham had been interviewed by an agent of Johnson. The agent then wrote out a statement in his own hand and it was signed by Cunningham. It was admitted into evidence over objection since Cunningham himself was illiterate. When the statement was first produced during the trial, defense counsel remarked that he had not previously seen it and, later, that the copy previously furnished him pursuant to a pretrial motion was illegible. The trial court, at the request of the plaintiffs, then advised the jury that the document previously furnished the attorney for the defendant was a copy of the statement signed by Cunningham and added that it was “rather illegible.” Plaintiffs argue that this gratuitous comment by the court compounded the wrong in view of the august position held by the bench in the eyes of the jury. The comment was unnecessary but not every comment or “unguarded expression” of a trial judge is reversible error unless prejudice is clearly shown. Northern Illinois Gas Co. v. Wienrank, 66 Ill App2d 60, 76, 213 NE2d 411. We find none here.

It is necessary to consider the trial as a whole to determine if a party has been denied his constitutional right to a fair trial by the misconduct of the other litigant or his counsel. The trial court is, of course, in a unique position to make this determination since it has heard all the testimony, all of the argument, observed the parties and their counsel and their effect on the jury. For this reason the sound rule exists that the question rests within the sound discretion of the trial court and will not be disturbed unless it is clear that the court has abused that discretion. West Chicago St. R. Co. v. Annis, 165 Ill 475, 46 NE 264; Owen v. Willett Truck Leasing Corp., 61 Ill App2d 395, 402, 209 NE2d 868; Eizerman v. Behn, supra. Although we have not discussed all of the instances raised in the plaintiffs’ brief, we have reviewed the record as a whole and agree with the conclusion of the trial court that the plaintiffs were not denied a fair trial by the prejudicial conduct of counsel.

During the course of his cross-examination of Lace Johnson and Steven Blankenship, the attorney for the defendant used a court reporter’s statement for purposes of impeachment. The court reporter, Harry Libby, was later called to testify as to the authenticity of his transcribed statements which had been taken in Gregg shorthand. In his cross-examination of Libby, the plaintiffs’ attorney attempted to bring out that a symbol contained in the reporter’s notes was not a “no,” as contended by the witness, but some other word. Libby explained that the notation was the Gregg Symbol for “no” but that it was taken down under adverse conditions and, as a consequence, was somewhat distorted. Libby circled the notation in his transcript at the direction of the plaintiffs’ attorney.

At the close of the defendant’s case, plaintiffs’ counsel sought to introduce that page of Libby’s notes that included the circled symbol into evidence and asked leave to call another Gregg reporter or to testify himself that the symbol was not a “no” under the Gregg system. The trial court rebuked the attorney for his dilatory tactics and did not permit either the introduction of the pertinent page into evidence or any further testimony to impeach Libby.

The record indicates that these lawsuits were filed approximately 2 and one-half years before trial. Libby’s notes were available to the plaintiffs at any time through normal discovery procedures. A further delay to obtain an additional witness on the last day of trial would have been completely unreasonable under these circumstances. Although counsel stated that he had been a court reporter in the U. S. Army, his credentials as an expert were extremely dubious and the ruling of the trial court was well within its discretionary control of the conduct of a lawsuit.

Next, it is argued that the cross-examination of David Korf, a deputy sheriff of Winnebago County, was improper. Korf arrived at the scene shortly after the accident and testified as to road conditions and the position of the automobiles. He also testified, on direct examination, as to a conversation he had with Cunningham 10 days after the accident and related a substantial portion of that conversation. On cross-examination, Korf was asked, and, over objection, answered as to the balanee of his conversation with Cunningham. It is well established that where one party brings out a portion of a conversation, the other party may cross-examine on all of the conversation. People v. Nakutin, 364 Ill 563, 5 NE2d 78. Korf was also cross-examined, however, about a conversation he had with Steven Blankenship. He testified, over objection, that Blankenship had not informed him as to the speed of Cunningham’s car and that Blankenship did tell him that he had looked up just at the time of the impact. At the trial, plaintiffs objected that the questions relative to Korf’s conversation with Blankenship were “leading and suggestive” and beyond the scope of the direct examination. On appeal, the plaintiffs contend the matter was inadmissible as hearsay. The defendant contends that the conversation was admissible to impeach Blankenship who had testified that he observed the accident and that Cunningham’s car was traveling between 40 and 45 miles per hour. Normally, the scope of cross-examination is left to the trial court. While ordinarily cross-examination should be confined to matters brought out in direct examination, the trial judge has wide discretion and may permit other pertinent matters to be elicited. Young v. Miller, 79 Ill App2d 463, 223 NE2d 854. We do not feel the trial court abused its discretion in permitting Korf to be cross-examined relative to his conversations with Blankenship.

We will not consider the final point raised by the plaintiffs relative to the instructions since none of the instructions are abstracted. People v. Donald, 29 Ill2d 283, 194 NE2d 227; People v. Habdas, 94 Ill App2d 330, 236 NE2d 731.

For the reasons given, the judgment of the trial court will be affirmed.

Judgment affirmed.

MORAN and SEIDENFELD, JJ., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Roy Curtis Cleveland, Defendant-Appellant.
    Gen. No. 68-84.
    Second Judicial District.
    January 23, 1969.
    Rehearing denied February 20, 1969.

      John R. Snively, of Rockford, for appellant.
    William R. Nash, State’s Attorney, of Rockford, and Keith S. Morse, Assistant State’s Attorney, for appellee.
   MR. PRESIDING JUSTICE ABRAHAMSON

delivered the opinion of the court.

This is an appeal from an order of the Circuit Court of Winnebago County granting the defendant probation.

The defendant, Roy Curtis Cleveland, was indicted for the offense of theft on December 14, 1966. On January 4, 1967, the defendant entered a plea of not guilty. Various motions were filed by the defendant, including a request for a Bill of Particulars. By stipulation of the State and the defendant, an auditor’s report would be allowed to stand in lieu of a Bill of Particulars. Although submitted to defendant and the court, this report was not made a part of the record. On July 17, 1967, defendant withdrew his plea of not guilty and entered a plea of guilty. This plea was accepted. Leave was granted the defendant to file a petition for probation and the case was continued to October 31, 1967. On that date defendant was admitted to probation for a period of five years, conditioned upon his confinement to the Illinois State Farm at Vandalia, Illinois, for a term of five months beginning on November 27, 1967, and also that within 30 days from his release therefrom that a final amount of restitution be determined by agreement of the defendant or by court order; that within 90 days after the amount of restitution had been established by agreement or by order of court, the amount should be paid in full.

The defendant was, at the time of trial, a man of 72 years of age, a resident of Cherry Valley, Illinois, and, prior to the indictment, had been the treasurer and a member of the Board of Trustees of the Cherry Valley Fire Protection District.

The indictment returned herein provided:

“That on the 30th day of September, 1966, in the County of Winnebago and State of Illinois, one Roy Curtis Cleveland committed the offense of Theft, in that he knowingly obtained unauthorized control over certain checks and money of the legal money and currency of the United States of America, having a value exceeding One Hundred Fifty Dollars ($150.00), the property of Cherry Valley Fire Protection District, a municipal corporation, Roy Curtis Cleveland thereby intending to deprive Cherry Valley Fire Protection District, a municipal corporation, permanently of the use or benefit of said property, in violation of Paragraph 16-1, Chapter 38, Illinois Revised Statutes.”

Defendant appealed directly to the Supreme Court of this state. The Court found that defendant’s assertions of constitutional claims were lacking in substance and transferred the appeal to this Court.

The defendant’s contention that the indictment fails to contain on the face some words to the effect that the Grand Jury was duly selected and sworn and made the presentment of the indictment has heretofore been passed upon by this court in People v. Marks, 63 Ill App2d 384, 387, 211 NE2d 548, wherein we found there was no necessity of reciting on the face of an indictment compliance with Criminal Law and Procedure, c 38, § 112, par 1-4 (Ill Rev Stats 1965) nor does the Legislature so require.

Section 16-1 of the Criminal Code (c 38, § 16-1, 111 Rev Stats 1965) provides:

“A person commits theft when he knowingly:
“(a) Obtains or exerts unauthorized control over property of the owner; or
“(b) Obtains by deception control over property of the owner; or
“(c) Obtains by threat control over property of the owner; or
“ (d) Obtains control over stolen property knowing the property to have been stolen by another, and
“(1) Intends to deprive the owner permanently of the use or benefit of the property; or
“(2) Knowingly uses, conceals or abandons the property in such manner as to deprive the owner permanently of such use or benefit ; or
“(3) Uses, conceals, or abandons the property knowing such use, concealment or abandonment probably will deprive the owner permanently of such use or benefit. . . .”

Defendant contends that the statute is unconstitutional in that it is vague, indefinite and uncertain. Section 16-1 defines the two elements necessary to constitute a theft — a proscribed act and the requisite intent. A combination of any one of the enumerated acts and any one of the enumerated mental states describes the prohibited offense. People v. Jackson, 66 Ill App2d 276, 279, 214 NE2d 316. The test to be applied to a statute is whether it is sufficiently definite and certain to enable all men to know what acts are proscribed and what conduct will make them liable to punishment. People v. Patrick, 38 Ill2d 255, 257, 258, 230 NE2d 843; People v. Williams, 79 Ill App2d 56, 59, 60, 222 NE2d 915. We find that section 16-1 (a) adequately apprises the defendant of the charge against him and encompasses the highly technical description of embezzlement by a public officer before codification, namely that the defendant knowingly exerted unauthorized control over the property of another. The codification, by the Committee Comments, was to abolish completely the labels and highly technical distinctions which have developed through centuries of case law and statutory amendments.

Defendant’s second and third contentions are interrelated in that they are both based on the position that the statute does not sufficiently define the elements necessary to define theft. Defendant contends that if the statute is insufficient, the trial court did not gain jurisdiction. He then contends that if the statute insufficiently defines the offense, then an indictment charging in the language of the statute is deficient. As stated above, we have found the statute sufficiently defines the elements necessary to constitute theft. Therefore, we find the trial court had jurisdiction and that the indictment framed in the language of the statute is sufficient. People v. Patrick, supra; People v. Robinson, 372 Ill 503, 506, 24 NE2d 376; People v. Jackson, 66 Ill App2d 276, 280, 214 NE2d 316.

Defendant next contends that the provisions of the Code of Criminal Procedure of 1963, c 38, § 117-2 (111 Rev Stats 1963) are void and unconstitutional in that it leaves to the discretion of the judge to require the defendant to serve a portion of his sentence in confinement before being released on probation. The provisions of this section constitute no material change to the previous law as stated in chapter 38, section 787 (Ill Rev Stats 1961). It was proper to require defendant to serve six months in confinement at the Illinois State Farm at Vandalia, Illinois, as a condition of his probation. People v. Adams, 342 Ill App 625, 632, 97 NE2d 581.

Finally, the defendant contends that the court’s order relative to restitution is void and constitutes imprisonment for debt. This contention appears premature in that there has been no breach of the requirement of restitution at this time. In support of this contention defendant relies upon People v. Prell, 299 Ill App 130, 133, 19 NE2d 637. We find this case to be inapplicable to the facts before us. In that case the order of probation complained of required the defendant to pay $500 as the supposed damages inflicted in an automobile accident as a result of defendant’s wilful and wanton driving. The court held at page 133 that such payment “could not be regarded as restitution ‘within the meaning of the law ....’” We find that the trial court did not abuse its discretion by making restitution a condition of probation.

For the above stated reasons we find the decision of the trial court should be affirmed.

Judgment affirmed.

MORAN and SEIDENFELD, JJ., concur.


author: MR. JUSTICE SEIDENFELD

text:
    In the Matter of the Petition of the Village of Long Grove, Illinois, for a Local Improvement, etc., Special Assessment No. I, Petitioner-Appellee, (Roy C. Anderson, et al., Objectors-Appellants).
    Gen. No. 68-Ill.
    Second Judicial District.
    January 20, 1969.

      Morrison and Nemanich, of Waukegan, for appellants.
    M. R. Conzelman, of Waukegan, for appellee.
   MR. JUSTICE SEIDENFELD

delivered the opinion of the court.

Roy C. Anderson, Bernard A. Raupp and Arthur Reimers, appeal from an order dismissing their objections to the petition of the Village of Long Grove for a Local Improvement and a Special Assessment thereunder without a hearing on the merits of the objections. The trial court found that there was no just reason for delaying enforcement or appeal of said order.

The objectors were not residents of the Village, nor was any of their property assessed in the Special Assessment proceedings. The sole issue is whether the owners of real estate located outside the corporate limits of a municipality but adjacent to a proposed public improvement have the right to file objections in Special Assessment proceedings, attacking its propriety and legality and claiming damages.

The appeal involves an interpretation of part of the Local Improvement Act, which is Ill Rev Stats 1967, c 24, § 9-2-55. The objectors claim that the term “real estate affected” as set out in the statute includes real estate which may be damaged by the Local Improvement; and that owners of real estate which is located outside the corporate limits of a municipality whose properties may be damaged by a proposed public improvement have a constitutional and statutory right to object in the Special Assessment proceedings. The Village contends that the only person who may object is one who is assessed in the proceedings; that persons who are not residents of the Village and who own no real estate being assessed have no standing to file objections.

The objectors are property owners whose properties are located outside of the Village limits, but which abut on the boundaries of a proposed sewer plant, which facility does not serve them.

We find that the objectors have no standing in the proceeding below and that their objections were properly dismissed by the trial court without a hearing on the merits.

The Local Improvement Act constitutes a complete code or plan governing the making of local improvements and the statute must be followed strictly in order to give the court jurisdiction to enforce the collection of the assessments. City of Chicago v. Jerome, 301 Ill 587, 590, 134 NE 92 (1922); In re Village of Westchester v. Williamson, 61 Ill App2d 25, 31, 208 NE2d 879 (1965). A local improvement is a public improvement which, by reason of its being confined to a locality, enhances the value of adjacent property, as distinguished from benefits diffused by it throughout the municipality; and the test as to whether such an improvement is local is whether it specially benefits the property assessed. Loeffler v. City of Chicago, 246 Ill 43, 52, 92 NE 586 (1910). A special assessment judgment is a judgment in rem against the property finally assessed. Gibler v. City of Mattoon, 167 Ill 18, 20, 47 NE 319 (1897).

In order to give the objectors standing to object in this proceeding, they would have us read section 9-2-55 of the Local Improvement Act (supra) so that the term “affected by an assessment” would be interpreted to mean “affected or damaged by an improvement.” In view of the nature and purpose of the Local Improvement Act, such an interpretation would do complete violence to and be repugnant to the statutory language. The default provisions in the second paragraph of the same section are also framed with reference to the property named in the assessment. Section 9-2-47 of the Act (Ill Rev Stats 1967, c 24) provides for the sending of notices to persons paying the taxes on the respective parcels assessed in the assessment roll.

Nor can the objectors properly rely upon section 9-2-24 of the Act (Ill Rev Stats 1967, c 24) for their position that “affected” also includes “or damaged.” For that section refers only to a situation where property must be taken or damaged for an improvement, in the nature of condemnation, and has no relevance to the facts here in which the property on which the sewer plant is to be located is already owned by the Village. In this case no land of the objectors is being taken.

That standing to object is based upon ownership of property assessed is further made clear by the case of City of Chicago v. Ridge Park Dist., 317 Ill 123, 125, 147 NE 803 (1925). There, the filing of a petition to condemn certain lots short of the actual acquisition of the property by the Park District was held to give the District insufficient interest to object to an assessment.

In Gibler v. City of Mattoon (supra, page 21), persons who were not shown by the record to be property owners of the property on the assessment roll were held to have no standing to object and were characterized by the court as “mere intermeddlers.”

The objectors have cited the case of City of Chicago v. Sanitary Dist. of Chicago, 272 Ill 37, 111 NE 491 (1916), but this is an Eminent Domain case involving the right of the City to condemn the property in a Sanitary District, and we find no relevance to the present case. Objectors also cite the case of Gorin v. McFarland, 80 Ill App2d 398, 224 NE2d 615 (1967). This involved the construction of a charitable trust and there was no question that the defendant was a proper party and had standing to file the motion to dismiss. Again we do not find that this is any authority for the position taken by the objectors here.

The objectors argue that the effect of the trial court’s action in refusing to allow their intervention in the present proceedings is to deprive them of a remedy to right a wrong which may be suffered by them because of the location, design or operation of the sewer plant, contrary to various constitutional provisions. We do not perceive that the ruling below has that effect. If the objectors are aggrieved or become aggrieved they are not deprived by this proceeding of any rights which they may have to redress those grievances. They merely do not have a standing to use the special statutory proceedings involved here as a forum for urging wrongs or remedies.

We, therefore, affirm the judgment of the court below.

Affirmed.

ABRAHAMSON and DAVIS, JJ., concur.

       “9-2-55 Objections. Any person interested in any real estate to be affected by an assessment, may appear and file objections to the report, by the time mentioned in the specified notice, or in case of incomplete notice then as specified in the last preceding section, or within such further time as the court may allow. The court may make such order in regard to the time of filing these objections as may be made in cases at law in regard to filing pleas, but no prior rule need be taken therefor unless directed by the court.
      “As to all lots, blocks, tracts, and parcels of land, to the assessment of which objections are not filed within the specified time, or such other time as may be ordered by the court, default may be entered, and the assessment may be confirmed by the court, notwithstanding the fact that objections may be pending and undisposed of as to other property.”


author: SMITH, J.

text:
    James Wade, Sheriff in and for the County of Pike in the State of Illinois, Plaintiff-Appellant, v. The County of Pike in the State of Illinois, Marshal Roberts, Supervisor of Assessments in and for the County of Pike in the State of Illinois, The Board of County Supervisors of Pike County, Illinois, and Glenn Secrest, Chairman of the Board of County Supervisors of Pike County, Illinois, Defendants-Appellees.
    Gen. No. 10,980.
    Fourth District.
    January 23, 1969.
    Hutchens & Mann, of Winchester (Richard E. Mann, of counsel), for appellant.
    Cecil J. Burrows, State’s Attorney, of Pittsfield, and Grigsby & Irving, of Pittsfield (Brice Irving, of counsel), for appellees.
   SMITH, J.

Who’s who in Pike County who can tell whom what part of the courthouse he may occupy? Specifically, is “who” the Sheriff or the County Board of Supervisors? The Circuit Court said it was the Board and the Sheriff appeals. Courtrooms are not involved.

The Sheriff, as such, is a very ancient officer. If antiquity were our sole criterion he would win hands down, for as to him the Board of Supervisors is a very modern invention indeed.

True, section 14 of the Sheriffs Act (§14, c 125, III Rev Stats 1967) when read with section 24 might seem to point oppositely. It says the Sheriff, “shall have the custody and care of the courthouse and jail of his county, except as is otherwise provided,” and section 24 reads that when he goes out of office “he shall deliver to his successor . . . possession of the courthouse and jail of his county . . . .” However, before we come to any quick conclusions we must read these sections in the context of the statute concerning the Board.

Section 24 of the Counties Act (§ 303, c 34, Ill Rev Stats 1967) where pertinent, provides:

“Each county shall have power—
“First — To purchase and hold the real and personal estate necessary for the uses of the county, . . . ;” and Section 26 (§432) says:
“It shall be the duty of the county board of each county:
“First — To erect or otherwise provide when necessary, and the finances of the county will justify it, and keep in repair, a suitable courthouse, jail and other necessary county buildings, and to provide proper rooms and offices for the accommodation of the county board, State’s attorney, county clerk, county treasurer, recorder and sheriff, and to provide suitable furniture therefor. . . .”

Both parties find solace in Dahnke v. People, 168 Ill 102, 48 NE 137, as well they might, but a close rereading we think favors the Board. In Dahnke the precise question was: Who was who in Cook County who could tell judges to sit there? It’s a quaint and interesting opinion. Even in 1894 there were more judges than courtrooms. In an attempt at solution, the County Board “assumed” the assignment and it came to pass that a certain judge holding court in a given room left to hold court elsewhere, and a second judge took possession— even though it had not been “assigned” to him by the Board. While such judge was using it, it was assigned to still another, though he seems to have tarried when it came to removing himself. In any event, he adjourned court one evening (in the preempted courtroom) for the day after tomorrow, and in the interim, Dahnke, acting for the Board, changed the lock on the door. When the day after tomorrow arrived, the judge, the sheriff and his bailiffs, parties, their attorneys and witnesses were denied admittance. As one might have thought, Dahnke was held in contempt. His appeal was not a success. Our Supreme Court held that the Board lacked power “to assign the courtrooms in the courthouse,” and quoted with approval the view expressed by the locked-out judge:

“ ‘As real estate simply, the courthouse is in the care and custody of the county board. As a courthouse, it is in the custody and care of the sheriff. As real estate the county board controls the title, and keeps the building and its furniture in repair. As a courthouse, the sheriff who is himself an officer of the court, guards and cares for it. Should the building cease to be a courthouse, it would revert to the care and custody of the county board like the other real estate. . . . The custody of the courthouse by the sheriff is the custody of an officer of the courts, who is subject to their control. In other words, it is the custody of the courts themselves. The sheriff himself has no power to control the use of the courtrooms by the courts or judges thereof. . . . ’”

and the Appellate Court:

“ ‘The custody and control, which the county board is entitled to exercise, under the authority of the constitution and the statutes, are such as attach to and flow from the ownership of the courthouse by the county; those of the sheriff are such as attach to and flow from the inherent powers and duties of his office at common law, and as recognized by the constitution and declared by the statutes, as the attendant upon the court, and as the court’s executive officer.’ (Dahnke v. People, 57 Ill App 619.) ”

We cannot view this case as authority for the Sheriff, as he thinks we should, as courtrooms qua courtrooms are something quite different from just plain rooms. We read this case to mean that if a room is a “courtroom,” it is the judges and no one else “who” determine to whom it will be assigned. That Dahnke’s (and the Board’s) quest for purgation went unrequited certainly does not mean that the Sheriff has the power to assign either courtrooms or just plain rooms. Dahnke stands for the limited proposition that only judges can shove judges around. This is a far cry from saying that Sheriffs can designate the lodgement for others in the courthouse.

“Custody and care” is not the same as providing “proper rooms and offices.” “Custody and care” gives to the Sheriff only the right to possess the courthouse in a custodial capacity. It is with the County Board where ultimate power lies. Hardin v. County of Sangamon, 71 Ill App 108, is apropos — though a mere Appellate Court case and earlier than Dahnke. There the County Board sought to eject an abstracter. We quote:

“A custodian, as curator or janitor, of such buildings was indispensable, and for the reasons stated the sheriff was most appropriately made such ex officio, but there was no necessity, nor any reason, for any of the purposes of his appointment, that he should supersede the owners in their actual or legal possession.”

And

“The law does not recognize any estate or interest of the sheriff, possessory or other, in the courthouse or jail. They are purely public buildings, belonging wholly to the county as a body corporate, dedicated to public uses only, in which, therefore, while so used, no other person, natural or artificial, private or official, can have any exclusive proprietory right. The sheriff’s relation to them is only that of one employed and paid to take care of them for these uses, as a part of his official duty, and all the possession he has, being merely incidental to that part of his duty, is, in fact and law the possession of the county.”

Accordingly the Circuit Court was correct in declaring that it is the Board “who” have the power to control occupancy of those lawfully entitled to such.

The order appealed from is affirmed.

Affirmed.

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