text:
    City of Palos Heights, a Municipal Corporation, Plaintiff-Appellant, v. Philomena Pakel, Defendant-Appellee.
    Gen. No. 53,034.
    First District, Second Division.
    February 10, 1970.

      Warren L. Swanson, of Chicago (Larry S. Bauer, of counsel), for appellant.
    Edwin J. Belz, of Chicago, for appellee.
   MR. JUSTICE LYONS

delivered the opinion of the court.

The city of Palos Heights (hereinafter referred to as the City) appeals from a judgment order finding the defendant, Philomena Pakel, not guilty of violating a specific section of the City’s zoning ordinance.

This action was commenced by the City when it filed a quasi-criminal complaint against the defendant. The complaint itself is a printed form containing a few words and many blank lines to be filled in by the pleader. Evidence at the trial showed that this complaint was signed by the City’s chief of police on instructions of the City, apparently without advice of counsel. In its complaint, the City alleged that the defendant, on or about September 28, 1966, and each day thereafter, caused to be constructed and continued to maintain at Palos Heights, Illinois, an accessory building in violation of the front yard setback limits as provided in its zoning ordinance. The particular zoning ordinance allegedly violated was specified in the complaint.

Summons was served on the defendant and she filed her answer alleging that she was the owner of a home located on a corner lot in the City of Palos Heights; that on or about July 25, 1966, and by and through Oko Pool Company, she applied to the City of Palos Heights for a permit to install a swimming pool in her backyard and an accessory filtration building in a portion of her front yard; that attached to this application for a building permit was a sketch showing the location of the swimming pool and accessory building on her property, a copy of which sketch was attached to her answer as an exhibit and expressly made a part thereof; that on or about August 1, 1966, the City issued such a permit to the Oko Pool Company; and that, relying on this permit, the defendant had the swimming pool fully installed and the accessory building was being erected when the City stopped all further work on the latter structure. The defendant also denied that her accessory building violated the front yard limits of the City’s zoning ordinance.

At the trial of these issues before the court without a jury, the City presented five witnesses material to the issues in this appeal. They were: Mrs. Henrietta Mar jan, the City Clerk; Patrick Harris, the chief building inspector; Joseph Studnicka, a licensed land surveyor whose firm prepared a plat of survey of the defendant’s property for the City; John Johansen, a City alderman and chairman of the building and license committee; and Howard Turna, the chief of police who signed the complaint. The testimony of two of the defendant’s witnesses is material on appeal; namely, Mr. Oko, the swimming pool contractor, and the defendant herself.

Mrs. Mar jan testified that section 6.4 of the City’s zoning ordinance requires a thirty-foot front yard setback and that when a house is located on a corner lot, as is defendant’s, this setback is required in the yard fronting on each street. At the request of defendant’s counsel, the court took judicial notice of the City’s ordinances. Thereafter, an application for building permit signed by Mr. Oko was admitted into evidence without objection. Mrs. Mar jan identified the document as an application to build a swimming pool; stated it was filed with her office by Mr. Oko; and that she processed it by giving it, along with the plans and specifications, to the building inspector for his review and approval.

A permit was issued to Mr. Oko authorizing the construction of a swimming pool. Subsequently, a conversation was held in Mrs. Marjan’s office between Mr. Harris, the building inspector, Mr. Oko as agent for the defendant, and Mrs. Marjan. The subject of this conversation was the size of the building which would cover the filtration equipment required by the swimming pool. Mr. Oko was asked to state the size of this contemplated structure and he said that it would be built no higher than a kitchen table and, when completed, would resemble a picnic table.

A sketch of the defendant’s home, swimming pool, and filtration structure was admitted into evidence without objection. Mrs. Marjan identified the sketch as being submitted by Mr. Oko after the City had issued the permit. We note that this is the same sketch which was incorporated by reference into the defendant’s answer. From the record we observe that this document is composed of a rough drawing of the defendant’s home and swimming pool giving their respective dimensions. Also included is a square figure with the word “FILTRATION” printed within it. Setback lines are also shown. Based upon its position in this sketch, the figure marked “FILTRATION” is shown to be in plain violation of the City’s front yard setback ordinance.

In concluding her testimony, Mrs. Marjan referred again to the application for building permit, which had earlier been admitted into evidence, and noted that the application showed no carpentry work was to be done in connection with the swimming pool. The sketch, a copy of which was attached to the defendant’s answer, came to her office about one month after the permit had issued for construction of the swimming pool. She did not know that the filtration plant was to be put in the front yard until the building inspector brought this to her attention.

The City’s chief building inspector, Patrick Harris, testified that the day after he received the application for building permit, he and Walter Lysek, chief electrician for the City, went to the defendant’s home and saw that Oko had already staked out the pool in the backyard preparatory to excavation; that a filtration system was a part of the pool; and that at the site Lysek asked Oko where this system was to be placed on the defendant’s land. Oko pointed to a position in the backyard and received the permit the next day.

Harris also identified a group exhibit which was submitted to the City by Oko and which contained plans for the swimming pool. He said that this exhibit showed a filtration unit as part of the pool. The size of this unit was about 3' x 3' x 3'. It rested on a concrete slab. The plans did not show where the filtration plant was to be placed and did not call for an accessory building. Harris visited the site on many occasions after the permit was issued. On one such visit he saw the filtration plant where it presently stands. There was no building over it and it stood 3' x 3' x 3'.

In August, 1966, Harris again visited the site and met a man there who was constructing a building over the filtration plant. Harris stated that the size of the building was about 12 feet high and 14 feet long. There was no siding on the structure yet but the studs were up and a few boards were on the roof. He told the man that such a building could not be erected there and showed him the zoning ordinance. The man identified himself as the defendant’s father-in-law and said he was through for the day. A few days later Harris again told the defendant’s father-in-law to stop working on the structure or he would be subject to a fine. Harris then put a stop-work order on the filtration building.

This witness also identified a plat of survey which was shown to him by counsel for the City and said that the filtration building shown on the plat is in the same location as when he viewed it on the defendant’s property. The measurements shown on the plat were substantially the same as he and Mr. Johansen, an alderman and chairman of the Building Commission, had measured with a tape when they together went to the site after the stop-work order had been placed on it. Harris did not return to the site until the day before he testified. At that time he noticed that the building was still standing. In conclusion, he testified that there are hedges approximately five or six feet high in the defendant’s front yard. The filtration building stands within the hedges and approximately two or three feet from the defendant’s home. The upper portion of the building is visible above the hedges, however. It is not located in the defendant’s backyard.

Joseph Studnicka testified that he is a civil engineer and licensed land surveyor and identified an exhibit, shown to him by the City’s attorney, as a survey made by his firm on which are shown measurements specifically locating, by feet, the structures located on defendant’s property. The survey was admitted into evidence without objection. Studnicka stated that a one-story frame structure was shown on the plat and that the northernmost wall of this building was 14.33 feet from the defendant’s building line. (Under the City’s front yard setback ordinance, it must be at least 30 feet.)

John Johansen stated that he is an alderman in the City of Palos Heights and chairman of the building and license committee; that after the stop-work order was placed on the filtration structure, he went to the defendant’s property with the chief building inspector, Harris; and that Harris measured the distance from the lot line to the filtration building and found it to be about fifteen feet.

Howard Turna stated that he is Chief of Police, City of Palos Heights, and that he signed the quasi-criminal complaint against the defendant on instructions of the City.

Alex Oko testified for the defendant and stated that he was employed by the defendant to construct a swimming pool on her property; that he followed the City’s swimming pool ordinance which specified that filtration equipment must be located at least ten feet away from any side property line; and that the redwood filtration building involved in the instant case meets this requirement. He went on to say that the building is 8' x 10' or 10' x 12' and is about nine feet tall. It contains a one HP pump, an earth filter, vacuum cleaner equipment for the pool, diatomaceous earth bags of 100 lbs. each and approximately 32" high, and a 3' x 3' x 3' heater. Oko did state that he had nothing to do with the building of this structure. In conclusion, he testified that if he placed the filtration equipment anywhere else, it would still be in violation of the front yard setback ordinance and that it was necessary that the equipment be covered and protected from the elements.

The defendant testified that her father-in-law was a former contractor before his retirement and he erected the structure over the filtration equipment; that the pool and the accessories cost about $10,000; and that the lumber for the filtration building cost her $200 but her father-in-law was not charging her for his labor. She did say that the filtration equipment is embedded in a concrete slab and that although she did not have a permit for the construction of a building over the filtration equipment, she thought the swimming pool permit was applicable to this accessory building.

At the conclusion of all the testimony, the trial court found the defendant not guilty stating that since the concrete slab upon which the filtration equipment rests was approved by the City, everything above the slab, including the building, must also be in conformity with the City’s ordinances.

In this appeal, the City contends that the judgment should be reversed because: (1) the defendant’s filtration building is in violation of the City’s front yard setback ordinance; (2) the issuance of a building permit for a swimming pool and for a concrete slab to mount the filtration equipment did not permit the erection of a building to house the equipment; and (3) the building permit could not properly issue for the construction of a building in violation of the zoning ordinance. The defendant urges that the judgment must be affirmed because the City did not properly preserve the record in that it failed to include therein the ordinances, application for permit, and the plat of survey. Going to the merits of this litigation, the defendant contends that the pool ordinance controls the disposition of this case or alternatively, the doctrine of equitable estoppel must be applied against the municipality.

We do not agree with the defendant’s contention that the judgment should be affirmed because the City failed to present a complete record to this court. At the request of counsel for the defendant, the trial court took judicial notice of the City’s ordinances. Under the Judicial Notice Act, Ill Rev Stats (1967), c 51, § 48(b), this court shall do the same. We therefore note that section 6.4 of the City’s zoning ordinance requires a front yard depth of at least thirty (30) feet; that where lots have a double frontage (i. e., corner lots), the required front yard shall be provided on both streets; and that no accessory building shall project beyond the front yard line on either street. The pleadings in this record indicate that a rough sketch, either prepared by Mr. Oko or apparently for his use, was attached to the defendant’s answer as an exhibit and incorporated therein by reference. This document unmistakenly shows the defendant’s filtration structure to be in violation of the City’s front yard setback ordinance. Furthermore, the testimony of the witnesses for the City, clearly indicates the defendant’s building to be a continuing violation of the City’s setback ordinance. Although it would have been better practice for the plaintiff to include the application for permit, the plat of survey, and the City’s zoning ordinance in the record and in its excerpts from record, we hold that, within the facts of this case, we can reach an adjudication on the merits.

Although the City initially contends that the judgment should be reversed because the defendant’s filtration building is in violation of its front yard setback ordinance, we take this argument to mean that the judgment should be reversed because it is opposed to the manifest weight of the evidence. We apply this civil rule of law to the facts herein because it is apparent to us that this action was commenced in an attempt to recover only a monetary penalty from the defendant thereby inducing her to remove the nine or twelve-foot high filtration structure, which is presently located in her front yard. A prosecution for the violation of a municipal ordinance and to recover a fine therefor, while quasi-criminal in nature, is civil in form and is tried and reviewed as a civil proceeding. City of Highland Park v. Curtis, 83 Ill App2d 218, 226 NE2d 870 (1967).

We note that the quasi-criminal complaint filed against the defendant does not contain a prayer for relief. It does contain a reference to section 6.4 of the City’s zoning ordinance, the setback section, but this section does not contain in it the penalty for its violation. We have taken judicial notice of the City’s complete zoning ordinance and note that none of the substantive sections contain a penalty clause therein. The penalty for violation is shown in a separate penalty provision, section 10.12-1 of the City’s zoning ordinance, which provides, in relevant part, that:

“Any person, . . . who violates, disobeys, omits, neglects, or refuses to comply with or resists the enforcement of any of the provisions of this ordinance shall be subject to a fine of not more than two hundred dollars ($200) or imprisonment for not more than six (6) months, or both, for each offense; and each day a violation continues to exist shall constitute a separate offense.”

Section 10.12-1 of the zoning ordinance, the penalty section, is not mentioned in the quasi-criminal complaint.

Since the instant complaint does not contain a prayer for relief, we cannot tell from its face if it was brought to imprison or fine the defendant. However, no motion to dismiss the complaint on this ground was made in the trial court and the defendant makes no such argument in this court. It is apparent to us, as apparently it was to the defendant and her counsel, that only a fine was sought from her. For example, she was served with a summons. and not with a warrant after the complaint was filed; she was never arrested; and her counsel filed an answer to the complaint which is, of course, not normally done in a criminal prosecution.

Failure to include a prayer for relief in the present complaint was apparently due to the fact that it was prepared by a layman without legal assistance and the form complaint does not contain an express prayer for relief section. A ground for liability is contained on its face, however, since the defendant is said to have committed a zoning violation by causing to be constructed and continuing to maintain an accessory building in violation of the City’s front yard setback ordinance which is expressly cited in the complaint. This is not a case in which the complaint fails to state any ground of liability which the law will recognize. In any. event, under section 42(3) of the Civil Practice Act, Ill Rev Stats (1967), c 110, § 42(3), which is applicable to the instant case, this defect in a pleading which otherwise states a ground of liability recognized by law was waived by the defendant when no objection was made in the trial court. Gustafson v. Consumers Sales Agency, 414 Ill 235, 110 NE2d 865 (1953).

We come now to the manifest weight point. Previous decisions of this court have stated that a judgment is opposed to the manifest weight of the evidence where the opposite conclusion is clearly evident, plain or indisputable. Schneiderman v. Interstate Transit Lines, Inc., 331 Ill App 143, 147, 72 NE2d 705, 706 (1947); Jenkins v. Hechtman, 83 Ill App2d 72, 226 NE2d 383 (1967). We hold that the judgment of the trial court finding the defendant not guilty of a zoning violation is opposed to the manifest weight of the evidence. Testimony presented by the witnesses for the City showed the defendant’s filtration structure to be located well within the thirty foot front yard setback area. This evidence was corroborated by the sketch incorporated by reference into the defendant’s answer which showed the building to be in clear violation of the applicable zoning ordinance. The City concedes that a permit issued for the construction of a swimming pool, by implication, also authorizes the erection of filtration equipment required for the proper operation of a pool and that such equipment must be covered to protect it against the weather. It contends, however, that the owner of the premises cannot erect a building over the equipment so as to be in violation of the setback ordinance and that a permit for the construction of a swimming pool does not reasonably extend to the erection of such a structure.

The City would not object to a 4' x 4' x 4' covering over the filtration equipment. We note that such an enclosure would protect the equipment from the effects of inclement weather and would rest unobtrusively in the front yard hedges of the defendant. The City presented testimony indicating that Mr. Oko, in speaking about the size of the contemplated building, said it would be constructed no higher than a kitchen table and, when completed, would resemble a picnic table. When almost completed by the defendant’s father-in-law and not Oko, the building was nine or twelve feet in height. Such a structure is an accessory building and, where presently located, is in violation of the City’s zoning ordinance.

At trial, the defendant relied upon the pool ordinance which states that every portion of an outdoor private residential swimming pool or its appurtenant equipment (pumps, filters, etc.) must be located at least ten feet from the side property line. The defendant contends that the pool ordinance is applicable to this case and since its equipment and building were not located within the prohibited ten-foot side yard area, the not guilty judgment must stand. We hold that the pool ordinance is not applicable here. By its express terms, this ordinance pertains only to the pool or its "appurtenant equipment. It does not authorize the erection of a building outside of the ten-foot side yard area. When the defendant caused a building, nine or twelve feet in height, to be constructed over the equipment, she brought herself within the provisions of the front yard setback zoning ordinance. The latter ordinance controls the disposition of this case. Since we have held that the permit for construction of the swimming pool did not authorize the erection of a building over the filtration equipment, it becomes unnecessary to reach the equitable estoppel issue raised by the defendant.

Because the complaint does not contain a prayer for relief, we hereby, on our own motion, order the City to amend its complaint by adding a prayer seeking the recovery of a specific monetary penalty. Our action is taken pursuant to Supreme Court Rule 362(f), Ill Rev Stats (1967), c 110A, § 362(f), which states: “The reviewing court may, of its own motion, before or after submission of the case for decision, order amendment to be made.” Such amendment is necessary and results in no prejudice to the defendant who, by her actions, has indicated that she was defending a civil suit brought against her in an attempt to collect a monetary penalty thereby inducing her to remove the present filtration structure.

The judgment of the trial court finding the defendant not guilty is vacated and the cause is remanded with directions to enter a judgment in an amount which the trial court considers justified in the circumstances.

Judgment vacated and cause remanded with directions.

McCORMICK, P. J. and BURKE, J., concur.


source: Caselaw Access Project

author: JUSTICE LYONS.

license: Public Domain

text:
    People of the State of Illinois, Plaintiff-Appellee, v. C. W. Hampton, Defendant-Appellant.
    Gen. No. 53,678.
    First District, Second Division.
    February 10, 1970.
    Robert Wolff and Howard Levine, of Harvey, and Jeffrey Schulman, of Chicago (Wolff & Levine, of Harvey and Jeffrey Schulman, of Chicago, of counsel), for appellant; Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Richard E. Zulkey, Assistant State’s Attorneys, of counsel), for appellee.
   Opinion of

JUSTICE LYONS.

Not to be published in full.


author: MR. PRESIDING JUSTICE McCORMICK

text:
    John F. Booth, Plaintiff-Appellee, Cross-Appellant, v. Cole Corporation and June C. Stern, d/b/a M. M. Cole Publishing Company, Defendants-Appellants, Cross-Appellees.
    Gen. No. 53,828.
    First District, Second Division.
    February 10, 1970.

      Altheimer, Gray, Naiburg, Strasburger & Lawton, of Chicago (Joseph J. Strasburger, Lionel G. Gross, Howard L. Kastel, and Roger B. Harris, of counsel), for appellants.
    Stone, Epstein, Lynch and Corby, of Chicago (Bernard M. Epstein, of counsel), for appellee.
   MR. PRESIDING JUSTICE McCORMICK

delivered the opinion of the court.

In 1923, when John Booth was fifteen years old, he began working for Morris Cole, owner of a music publishing business then known as M. M. Cole Publishing Company. In 1935 the name of the company was changed to the Cole Corporation, and in 1964 was again changed back to M. M. Cole Publishing Company as a sole proprietorship of June Stern.

In 1958 the Cole Corporation executed pension contracts with John Booth and two other employees, Ambrosine Schuham and Charles Fine. Booth’s contract provided in substance that when the corporation retired him he would receive $50 a week for the rest of his life, with payments to cease upon his death. At the time Booth was receiving $100 a week. Morris Cole died a few months after the contract was made, and his widow, Leona Cole, continued to operate the business until her death in 1963.

Leona Cole’s estate was distributed through use of a “family settlement agreement” in which the corporate assets were given to her two children; the music publishing business to June Stern, and beneficial ownership of the building to Charles Cole. Max Becker, a certified public accountant, and the executor of Leona Cole’s estate, testified that this method of distribution was chosen in order to minimize estate taxes. He stated that the contract with the plaintiff in no way affected the decision as to the method of distribution.

The “family settlement agreement” amounted to a liquidation of the corporation. The executors of the estate were secured against claims by the deposit by June and Charles of over $300,000 with the executors. The plaintiff asserts that the corporate liquidation accelerated his right to receive his pension funds and that the corporation treated the pension contract as a matured debt when it set aside $42,149.46 in the estate tax return for the contingent liability of the “Booth contract.” (The Internal Revenue Service reduced this figure to $34,-730.78.) Plaintiff contends that he was retired when the corporation was liquidated; that his debt matured at that time, and that he is therefore now entitled to a lump sum payment based on the weekly pension payments multiplied by his life expectancy.

The theory of plaintiff’s case rests upon the alteration in the form of ownership of the Cole business. Had Leona Cole simply given each child one half of the stock in the existing corporation, Booth would have remained in the employ of the same entity; however, for tax purposes the assets were distributed to June and Charles in kind. The plaintiff contends that such distribution amounted to a breach of Cole Corporation’s obligation to him, thereby maturing the contract and making immediately due approximately $34,000. He argues that he could not be required to remain in the employ of any other than a corporate successor of Cole Corporation to be eligible for his pension rights, and that the sole proprietorship of June Stern was not such a successor.

While the 1958 agreement stated that “Booth has been serving the Corporation as Stock Manager more than thirty-five (35) years last past; . . . .” that statement technically was inaccurate, since from 1923 to 1935 Booth had worked for the M. M. Cole Publishing Company, which then became the Cole Corporation, and he had worked for that company from 1935 to the time of the 1958 contract. Thus, he had really worked for the Cole Corporation twenty-three years at the time of the contract, although he had been in the employ of the company business for thirty-five years at the time of the 1958 contract.

We call attention to this fact in order to show that the contracting parties themselves were apparently not concerned about the name under which the family business was continuing or the technical form of ownership of the business. It then appears that when the contract stated that Booth had worked for “the Corporation” for thirty-five years, it was meant that he had been with the family organization for that long, although the organization had undergone a technical alteration in name and perhaps in form of ownership.

We believe this is relevant because the plaintiff has based most of his argument on the fact that subsequent to the 1958 contract with “the Corporation” the form of ownership was changed to a sole proprietorship, which alteration amounted to a breach of his pension contract with “the Corporation.” We feel, however, that the parties showed their intent that the form of ownership not be considered a critical factor; rather, the important question was whether Booth worked for the family company, regardless of the form.

Our conclusion is not reached only because of the loose terminology in the contract, but we consider that the contract also provided for the performance of the corporation’s obligation by “heirs, executors, administrators, or successors.” The chancellor seized upon this language to determine that the contract intended that the obligation to pay Booth the pension would not terminate upon Booth’s death, but rather, that the pension should be payable to Booth’s “heirs, executors, administrators, or successors.” However, this interpretation is contrary to the language of the contract which states: “Beginning with the first week of such retirement and continuing thereafter until his death, . . . the Corporation shall pay to Booth the weekly sum of Fifty ($50.00) Dollars. Upon the death of Booth during his retirement . . . payments provided hereunder shall cease and terminate. It is not intended by the parties that the benefits of this agreement be assigned or anticipated or made available to anybody other than Booth, so that any payments to be made hereunder shall cease and terminate with the death of said Booth.” It is true that the last clause reads, “This agreement shall be binding upon the parties hereto, their heirs, executors, administrators, or successors.” However, it would be a wholly unjustified conclusion to say that the “binding” clause shows that the payments were to go to Booth’s heirs upon his death. The contract could hardly be made more clear on the point that the obligation to make the. pension payments to Booth was to cease upon his death.

It would appear that the purpose of the “binding” clause was to make the obligation one which would be imposed on any subsequent successor in interest of the Cole Corporation, which conclusion is consistent with the general tenor of the contract. The parties appear to have used the term “corporation” loosely with reference to the Cole family business, and the pension contract seems to have carried through in the same manner. In other words, regardless of the form of ownership, those carrying on the business would still be bound by the contract.

The trial judge concluded that the contract had not matured and accelerated; nevertheless, the judgment gave the plaintiff practically all he was seeking, under a different theory. The court determined that the 1958 pension contract “does not accurately express the intention of the parties” and that “the attorney who drafted this extraordinary document was guilty of mistake or fraud.” According to this view, the court reformed the contract to include, inter alla, the following:

1) The plaintiff was to have the right to retire at any time he chose although his employer could retire him only after he reached the age of 65;

2) The plaintiff was to be paid $300 per month until a total of $35,000 was paid him, and if he died prior to the total payment the balance was to be paid to his heirs;

3) The defendants were required to deposit $35,000 in trust to secure the monthly payments to plaintiff.

This interpretation then was not a contingent obligation to pay $50 a week to Booth during his lifetime after his retirement from the company or involuntary disability, but was instead a matter of an absolute obligation to pay $35,000. These reformations were in error and the trial court’s decretal orders to that effect are reversed.

The plaintiff had petitioned for allowance of attorney’s fees and expenses; the trial court denied the request, and plaintiff cross-appealed for attorney’s fees. On this matter we feel the trial court was correct, and the plaintiff is not entitled to the attorney’s fees.

Reformation is a remedy which must be employed carefully and misuse of its application can lead to far more damage than would be occasioned by allowing the instrument to remain unchanged. It should be reformed only when clear and convincing evidence compels the conclusion that the instrument as it stands does not properly reflect the true intent of the parties involved, and that there has been either a mutual mistake or a mistake of one of the parties, and a fraud perpetrated upon him by the other side.

With reference to the applicable standards regarding the use of reformation, see Hyman-Michaels Co. v. Massachusetts Bonding & Insurance Co., 9 Ill App2d 13, 20, 132 NE2d 347; Michigan Mut. Liability Co. v. Type & Press Co. of Illinois, 62 Ill App2d 364, 371, 210 NE2d 787. For cases discussing mistake and fraud, see Hyman-Michaels, supra; Almer Coe & Co., Inc. v. American Nat. Bank & Trust Co. of Chicago, 44 Ill App2d 104, Ill, 194 NE2d 14; and Harley v. Magnolia Petroleum Co., 378 Ill 19, 28, 37 NE2d 760.

The facts in the case before us do not justify the use of remedy of reformation. The trial court said it had looked at the pension contracts executed in 1958 with two other employees (Charles Fine and Ambrosine Schuham) and the Fine contract was received in evidence. Both the Booth and Fine contracts provided for weekly retirement payments of $50, but the Fine contract provided that upon Fine’s death the weekly payments were to continue thereafter for the life of his wife, and upon her death all payments were to cease. The 1958 agreement with Schuham was not in evidence. The minor difference between the Booth and Fine contracts could be explained on several grounds, but whatever the reason, it does not justify the conclusion that the Booth contract was unconscionable. We know of no rule of law which compels an employer to enter into identical agreements with all employees or have a court compel an employer to grant to all employees precisely the same benefits.

In 1962 the Cole Corporation executed a new pension contract with Schuham to replace the 1958 contract, and in 1964 a new contract was executed with Fine to replace its 1958 contract. By that time Morris Cole, the author of all the 1958 contracts, had been dead for years, yet the trial court relied on the content of those documents to determine the true intent of the 1958 Booth contract. That contract was clear on its face; there were no ambiguities and no evidence that the document included or failed to include any erroneous provisions, nor was there any evidence of fraud. Under these conditions the trial court should have looked only at the Booth contract.

The trial court set out certain conclusions of law which, after detailing the provisions in the 1962 and 1964 contracts of Schuham and Fine, respectively, said: “Thus, the Court is provided with a guide to the intentions of Morris Cole with respect to the contract as expressed by his heirs and successors.” We fail to see how those contracts could serve as an aid in determining what Morris Cole meant by the contract he negotiated on behalf of the corporation in 1958. The 1958 Booth contract speaks for itself, and it is not within the province of the court to rewrite contracts simply because of its disapproval of some of the provisions contained therein.

Prior to trial the court entered an order directing that $55,000 then held by Max Becker as executor for the estate of Leona Cole, be held by Becker in custodia legis subject to further court order. The defendants have requested that this order, the decree, a subsequent order waiving the requirement of posting bond in regard to the custodia, legis, and the order which modified and diminished the conditions upon which plaintiff’s rights are predicated, all be reversed and the cause remanded with instructions that an order be entered dismissing plaintiff’s suit. However, the defendants also made the following statement in their brief:

“Alternatively, should this Court feel it necessary, defendants suggest that a decree might be entered providing that plaintiff may commence receiving his $50 per week payment at a specified date—such as upon attaining customary retirement age of 65. Such decree might also provide, as defendants proposed in the Court below, for the making of a security deposit with a bank or trust company in an amount sufficient to ensure that adequate funds would always be available for payment of plaintiff’s weekly pension benefits in the event of default by defendant.”

In the trial court defendants offered “to permit the plaintiff to retire immediately, or at any time he chooses, and to commence receiving his $50.00 weekly payments, even though plaintiff has not yet reached normal retirement age and has only just attained age 60.” At another time counsel for defendants said: “We recognize we have an obligation on retirement to pay him $50.00 a week and have offered and undertaken to assume it. We do so again and reaffirm it in open court to retire him immediately.” The defendants draw this court’s attention to their offers made in the trial court, but now say that “since plaintiff at the date of this writing is only 61 years old, and since defendants have incurred significant expenses in connection with this appeal, they would prefer not to be required to commence paying plaintiff’s benefits until he attains age 65.”

We recognize that the 1958 contract contains no cutoff age at which Booth could retire and still obtain the pension benefits. Under the terms of the contract he could obtain the benefits only by being retired by the company or by becoming permanently disabled. Nevertheless, the defendants have asserted in open court and before this court that they would be willing to retire Booth, thus commencing his payments. They now attempt to amend the lower court offer by making payments commence when the plaintiff is 65, rather than immediately. We feel that their being compelled to undergo substantial costs since the initial offer was made is not sufficient reason to require our having payments postponed. Accordingly, we are adopting the defendants’ alternative suggestion and reversing the trial court’s orders and decrees pertaining to the reformation, and are remanding the cause with instructions to enter an order providing that the payments of $50 a week to John F. Booth shall commence immediately. Payments are to be made by June C. Stern, d/b/a M. M. Cole Publishing Company, and the obligation is to be binding on heirs, executors and administrators of Mrs. Stem.

The decree shall also provide that a security deposit of $35,000 be deposited with a bank or trust company to insure that adequate funds will always be available for payment of plaintiff’s weekly pension benefits. This judgment is to replace all decrees, judgments and orders relative to the custodia legis fund.

On the issue regarding his right to obtain attorney’s fees, plaintiff argues that the court had before it custody of a part of the trust funds—the $55,000 ordered held in custodia legis—and thus, out of that fund the plaintiff’s claims should be paid so that equity can be done to his rights. This argument is based on the notion that the court had before it an instrument which required the court’s interpretation, and that the attorney’s services consisted primarily, if not entirely, upon obtaining an interpretation of the instrument.

All cases cited by plaintiff on this issue have involved interpretation of wills. However, we do not feel that we need reach the question of whether this rule is restricted to will contest cases, since in the present matter the trust fund was not a necessary part of the suit. The trial court apparently entered the order solely as a protective device for the plaintiff, but further stated that an interpretation of the “family settlement agreement” from which the $55,000 was ordered held in cmtodia, legis was not necessary to the disposition of the case. The trial court correctly denied the plaintiff’s motion for attorney’s fees.

Affirmed in part, reversed in part, and remanded with directions.

LYONS and BURKE, JJ., concur.

       The trial court entered an order allowing Booth to retire "without prejudice” to his claims under the pension contract.


author: MR. JUSTICE DRUCKER

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Jack Howard, Jr., Defendant-Appellant.
    Gen. No. 53,720.
    First District, Fourth Division.
    February 11, 1970.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Saul H. Brauner, Norman W. Fishman, and James J. Doherty, Assistant Public Defenders, of counsel), for appellant.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Thomas Holum, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE DRUCKER

delivered the opinion of the court.

The defendant was convicted, after a jury trial, of the crimes of deviate sexual assault and robbery. Judgment was entered and he was sentenced to a term of twelve to fourteen years for deviate sexual assault and fifteen to twenty years for robbery, the sentences to run concurrently. On appeal defendant contends that he was not proven guilty beyond a reasonable doubt because his alibi was corroborated by work records and his identification was vague and uncertain.

Testimony of Jacqueline Flynn, the complaining witness:

On January 26, 1967, she lived at 719 West 17th Place. She left her home at approximately 7:55 a. m. to go to work, and as she was walking east on 17th Place she noticed a man across the street walking west. No one else was on the street. She saw the man cross the street. As she kept walking she took a quick look behind her and suddenly there was a hand over her mouth. She screamed and he told her, “If you scream you MF, I’ll kill you.” She said, “Take my money,” or “Don’t hurt me!” She held out her purse and he took it. She had $5 in her wallet. He then took her by the shoulders and across a yard underneath a staircase. She had a good look at his face when she held out her purse. She was only three or four feet from him. She wears glasses and she had them on when the crime occurred. It was bright outside when she left for work. The man was a foot and a half from her while underneath the staircase. She then described the deviate sexual assault.

During the assault she noticed a brilliant gold ring on her assailant’s left little finger. During direct examination the defendant held up his left hand and she looked at the ring he was wearing. It was similar to the one he was wearing on January 27, 1967, in its outside shape, and it also had a rose in the center. It was worn on the same left hand little finger.

After the assault and robbery she ran to a convent across the street. She grabbed some children who were right outside the convent and asked them to help her. They took her to the door where she rang the bell and was let in by a sister. It was about fifteen minutes from the time she left home until she ran to the convent.

At 8:30 a. m. the police came to the convent. She described her assailant as a male Negro, about five-nine or five-ten in height, 165 to 170 pounds in weight, and twenty-three to twenty-five years old. He had on a three-quarter length dark gray coat, black wash pants which were turning gray, and the gold ring.

She was shown photos of suspects the Saturday after the day she was attacked. She did not see anyone that looked like the man who attacked her.

On February 21, 1967, she was brought to the police station where she viewed a lineup of five Negro men. They were all about the same height and build and all wore work clothes. She identified the defendant as her assailant. She did not see him wearing a gold ring as she was not looking for it.

Testimony of William Buegel, called by the State:

He did not know about the assault on the complaining witness but he had been given the defendant’s description by numerous persons. He saw the defendant at 8:05 a. m., on February 21, 1967, at the corner of 18th Street and Racine and went for the police.

Testimony of Frank Argentine, called by the State:

He is a police officer. On February 21, 1967, William Buegel and he had the occasion to see the defendant and placed him under arrest. On his police report he wrote that the defendant was five foot nine in height, weighed 185 pounds and was eighteen years old.

It was stipulated that the defendant is currently eighteen years old.

Testimony of Jack Howard, Jr., the defendant:

He lives at 1427 South Trumbull. He is eighteen years old and at the time of his arrest he was seventeen years old. On January 26, 1967, he was employed by Polo Food Company at 117 South Water Street. He worked from 8:00 a. m. to 4:30 p. m., Monday through Friday.

On January 26, 1967, he got to work about 7:55 a. m. and punched in for work at two or three minutes after eight. He always takes the bus from his home to 18th and Racine and walks north on Racine to 14th Place and then turns right (east) and walks two blocks to the food company.

When he enters the front door of the company he has to show his identification card to a security guard. He then goes to the locker room, changes clothes and goes upstairs to punch the time clock. It takes about five or six minutes from entering the building, getting a fresh coat and hat, changing clothes and punching the clock.

He denied that he committed either the deviate sexual assault or the robbery. He never saw the complaining witness on January 26, 1967. The first time he ever saw her was on February 21, 1967, at the Maxwell Police Station when he participated in a lineup.

He is five feet eleven and weighs about 190 pounds. He got to work about 7:55 a. m. on January 26, 1967. He was arrested on February 21, 1967. He was about five blocks from work at the time of his arrest. It would take him about ten minutes to walk the five blocks to work. He did not work on January 27, 1967. He left work on January 26,1967, at 1:00 or 1:30 p. m.

Testimony of William J. Robinson, called by the defense: He is the personnel director for the South Water Market Polo Food Company. In response to a subpoena he brought the personnel records of the defendant. On January 26, 1967, the defendant punched in at approximately 8:06 a. m. “I say approximately because of the way our time clock works.” The clock punches every six-tenths of an hour. If the time card says 8.1 it would be any time for the period of six minutes after eight to eleven minutes and fifty-nine seconds after eight.

An employee receives a fresh hat and coat for work only once a week, and on Thursday, January 26, 1967, they would already have their coat and hat. An employee would keep the same hat and coat unless it was so torn that a foreman would have to get him a new one.

If a man were in a hurry the whole procedure of changing clothes and punching in would not take very long. A man in a hurry could punch his time card first, before putting on his hat and coat. It is possible for some other employee to have punched the defendant’s time card. The defendant did not work on January 27, 1967, but his time card was punched for that date and then crossed out and initialled by the superintendent. The defendant’s time card for January 26, 1967, showed that someone punched it out at approximately 10:15 a. m.

In his opinion it would be “rather difficult” for a person who left the 700 block of 17th Place at four or five minutes after eight to get to the plant and punch his time card at 8.1 (8:06 to 8:12 a. m.).

He had no personal knowledge when the defendant punched in on January 26, 1967, since he was not employed at Polo Foods on that date. To the best of his knowledge the time clocks are accurate but he did not know the condition of the time clocks on January 26, 1967.

Opinion

Defendant contends that he was not proven guilty beyond a reasonable doubt. He argues that his alibi evidence was corroborated by his work records for January 26, 1967. The complaining witness testified that the crime took place around 7:55 a. m. and about fifteen minutes elapsed from the time she left her home until she came to the convent. The defendant testified that on January 26, 1967, he arrived at Polo Foods, approximately five blocks from where the assault occurred, at about five minutes to eight and punched his time card at 8:03 a. m. In an attempt to corroborate this testimony the defendant offered the testimony of William Robinson. However, Mr. Robinson testified that the defendant punched in at 8.1, or between 8:06 and 8:12 a. m.

In People v. Silvia, 389 Ill 346, 353, 59 NE2d 821, the court stated:

A reasonable doubt is not raised merely because the evidence is conflicting or because there is some evidence of an alibi. (People v. Bote, 379 Ill 245; People v. Katsovitz, 363 Ill 187.) When the evidence offered to establish an alibi, even though taken to be true, does not cover the entire period when the crime was alleged to have been perpetrated, it is not convincing. (People v. Bote, 379 Ill 245; People v. Mitchell, 368 Ill 399; People v. Schladweiler, 315 Ill 553.) The reasonable doubt as to the guilt of defendant arising out of the evidence of a defense of alibi must come from the fact that the evidence tends to show the impossibility or improbability of the presence of defendant at the time of the commission of the crime.

While the testimony of the defendant and Mr. Robinson taken together appears to cover the entire period of the crime, the jury could reasonably have found otherwise. The complaining witness testified “it was about 15 minutes from the time I left the house that I came to the convent.” After her assailant fled, she pulled up her undergarments, ran across the street and grabbed some children who were outside the convent and asked for help. They took her to the door and she rang the bell and was let in by a sister. From this evidence the jury could reasonably infer that the assault and robbery took less than fifteen minutes. The jury could find that the defendant did not arrive at work on January 26, 1967, at 7:55 a. m. and punch in at 8:03 a. m. but rather fled the scene of this crime several minutes after eight and punched in at 8:11 a. m. which would still be within the range of the register’s 8.1. The defendant testified that he was capable of walking a five-block distance in ten minutes, and the jury could also find that he was capable of traversing this same distance within a much shorter time period if he had just committed an assault and robbery. Therefore, the defendant’s evidence, if disbelieved by the jury (as it was), does not cover the entire period of the crime and does not show, the improbability or impossibility of his presence at the scene of the crime.

We would also note that the testimony of the defendant and that of his . own witness, Mr. Robinson, is conflicting. The defendant testified that he punched in on January 26, 1967, at 8:03 a. m. but his time card registered 8.1, or between 8:06 and 8:12 a. m. The defendant also testified that he left work at 1:00 or 1:30 p. m. but his time card indicated that his card was punched out at 10:15 a. m. Furthermore, the defendant testified that he had to wait in line to receive a fresh hat and coat, but Mr. Robinson testified that an employee would not have to wait in line since he would have received a fresh hat and coat earlier in the week. Also, contrary to the defendant’s testimony, Mr. Robinson stated that if a man was in a hurry he could punch the time clock first and then change clothes. Finally, the defendant testified that he did not work on January 27, 1967, but his time card was punched in for that day and later was crossed out and initialled by the superintendent. This fact may well have been coupled by the jury with Robinson’s testimony that it would have been possible for someone else to have punched in defendant’s time card for the morning of January 26.

The credibility of witnesses and the weight to be given their testimony are for the jury to decide. The verdict of a jury will not be disturbed unless it is clearly contrary to the weight of the evidence or is so unsatisfactory as to cause a reasonable doubt of guilt. People v. Tribbett, 41 Ill2d 267, 242 NE2d 249, and People v. Peto, 38 Ill2d 45, 230 NE2d 236. We find that the decision by the jury was supported by the evidence and was not so unsatisfactory as to cause a reasonable doubt of guilt.

The defendant also argues that his identification was vague and uncertain. He cites People v. Cullotta, 32 I112d 502, 207 NE2d 444, in support of this claim. In Cullotta the defendant was identified by two policemen who had but a fleeting glance of him at a store as they drove by in their squad cars. In the instant case, however, the complaining witness had an adequate opportunity to observe her assailant. She testified that she had a good look at his face since it was a bright day; that she was about three or four feet from him when she gave him her purse; that she was wearing her glasses when the incident took place; that she observed the defendant throughout the entire assault since she was only eighteen inches from him under the staircase; and that the defendant was wearing a brilliant gold ring with a rose in the center on his left little finger. In court she testified that when the defendant held up his left hand he had a gold ring on his left little finger which looked “similar” in its “outside shape” to the one he was wearing when she was assaulted and that it had a rose in its center.

The complaining witness described the defendant to police as a male Negro, about five foot nine or ten, weighing 165 to 170 pounds, approximately twenty-three to twenty-five years old. In People v. Ruth, 113 Ill App2d 28, 33,251 NE2d 744, this court stated:

The testimony of one witness alone, if it is positive and the witness credible, is sufficient to convict, even though the testimony is contradicted. People v. Cox, 22 Ill2d 534, 177 NE2d 211 (1961). And the adequacy of the identification raises a question of the credibility of the witnesses which is a matter for the determination of the jury, sitting as triers of fact with the superior opportunity not only to hear the testimony of the witnesses but to observe their demeanor while on the witness stand. People v. Jackson, 28 Ill2d 566, 192 NE2d 873 (1963); People v. Evans, 25 Ill2d 194,184 NE2d 836 (1962).

Even though there were minor discrepancies between the complaining witness’ physical identification of the defendant and his actual weight, height and age, the jury had the opportunity to weigh the complaining witness’ description with defendant’s actual physical characteristics as he sat in the courtroom; We find that the identification evidence in this record is clearly sufficient to support the jury’s finding of guilt beyond a reasonable doubt.

The judgment is affirmed.

Affirmed.

ENGLISH and LEIGHTON, JJ., concur.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Henry Lee Johnson, Defendant-Appellant.
    Gen. Nos. 53,577, 53,578, 53,754. (Consolidated.)
    First District, Second Division.
    February 16, 1970.
    Howard T. Savage, of Chicago, for appellant; Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Thomas Holum, Assistant State’s Attorneys, of counsel), for appellee.
   Opinion by

JUSTICE LYONS.

Not to be published in full.


author: MR. JUSTICE SCHWARTZ

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Willie Fleming, Defendant-Appellant.
    Gen. No. 52,762.
    First District, Third Division.
    February 19, 1970.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Shelvin Singer and James J. Doherty, Assistant Public Defenders, of counsel), for appellant.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and John R. McClory, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE SCHWARTZ

delivered the opinion of the court.

Defendant was indicted on two counts of theft, each involving property which exceeded $150 in value. In a jury trial he was found guilty on both counts and after a hearing in aggravation and mitigation, was sentenced to serve concurrent terms of eight to ten years. On appeal he contends: (1) the two counts should not have been joined for trial, (2) there was a material and prejudicial variance between the indictment and the evidence presented at the trial, and (3) the trial court abused its discretion in admitting into evidence certain rebuttal testimony by the State. Prior to trial the defendant made a motion for severance of the two counts. The trial court denied it on the ground that joinder for trial would not be prejudicial to the interests of the accused. Thereupon the defendant moved that a mistrial be declared for failure to sever, which motion was also denied.

The first witness for the State was Pat Stefanelli, owner of a used car lot in Cicero, Illinois. He testified that defendant came to his lot on August 12, 1966, as a prospective customer and was shown a 1962 Chevrolet Impala convertible. After inspecting the automobile the defendant told the witness he would return the next day to leave a deposit on the car. When Stefanelli got to the lot the following morning, the Chevrolet he had shown the defendant was missing.

Roland Currington, a witness for the State, testified that he began negotiations with defendant in March, 1967, for the purchase of a 1962 Chevrolet Impala convertible, which resulted in his paying defendant $150 in cash and some clothing for the car. In late April, 1967 while driving the car Currington was stopped by the police. He told the police officers that he bought the car from defendant.

Police detective Barney Morgan testified that a check by the Chicago Police Department of the serial number of the car found in Currington’s possession revealed it to be the same car which had disappeared from Stefanelli’s lot approximately eight months earlier. With that critical link established the State rested its case in chief.

Defendant then moved for a directed verdict. When that was denied he moved for a mistrial on the ground that he was surprised by testimony that the alleged sale took place in April, 1967, rather than on March 20, 1967, the date alleged in the indictment and on which he had based an alibi defense. That motion was also denied.

Defendant on direct examination testified that he had never driven a 1962 Chevrolet and had never negotiated the sale of a car with Currington, whom he knew only as a patron of a tavern they both frequented. On cross-examination defendant testified that he had never been in a 1962 Chevrolet with one Ora Brunt and that he had once purchased a city vehicle tax sticker for a 1954 Buick but that it was stolen when the Buick was damaged by vandals. The defense then rested.

In rebuttal the State recalled Detective Morgan to the witness stand. He testified that the vehicle sticker found on the Chevrolet was registered to defendant for a 1954 Buick. Ora Brunt was then called by the State and testified that in April, 1967, defendant attempted to sell her a 1962 Chevrolet, that she rode in the car with defendant and Currington in mid-April and that she ultimately paid defendant $80 to apply on a price of $600 for the car. Objection to that testimony was interposed by defendant on the ground that it was evidence of another crime. The objection was overruled. The last witness called was George McDonald, who testified that he was employed as a mechanic and that in January, 1967, he saw the defendant driving a 1962 Chevrolet Impala convertible at the service station where he worked. He performed some minor repair work on the car at that time.

We proceed to consideration of defendant’s contention that the two counts were improperly joined in that they charge separate offenses which are not part of the same transaction. Count I charged defendant with “obtaining and exerting” control over the property of Stefanelli. The evidence admitted on that count related to the circumstances surrounding disappearance of the car in August, 1966, and its sale in March, 1967, eight months later. Count II charged theft by deception in selling the same car to Currington and receiving cash and clothing in return. The evidence presented by the State in support of that charge was substantially the same as that used to establish the offense set forth in Count I. The State admits in its brief that the charges relate to two separate acts, but argues that the acts were so interrelated as to constitute a single transaction.

The propriety of joining separate offenses in separate counts of a single indictment is controlled by section 111-4 (a) of the Criminal Code (Ill Rev Stats, c 38, § 111-4 (a) (1967)). That section reads as follows:

“Two or more offenses may be charged in the same indictment, information or complaint in a separate count for each offense if the offenses charged, whether felonies or misdemeanors or both, are based on the same act or on two or more acts which are part of the same comprehensive transaction.”

The comments which accompany that section reveal it is intended as substantially a restatement and codification of former Illinois law. Committee Comments, Ill Rev Stats, c 38, § 111-4 (1963).

The Illinois cases which preceded enactment of the statute establish the rule that a defendant cannot, over his objection properly made, be placed on trial in an indictment charging separate offenses when it affirmatively appears they are not part of one and the same transaction, but are separate and distinct both in law and fact. People v. Stingley, 414 Ill 398, 111 NE2d 548; People v. Borelli, 392 Ill 481, 64 NE2d 719; People v. Perrello, 350 Ill 231, 182 NE 748; People v. Gray, 251 Ill 431, 96 NE 268. A defendant cannot be forced to trial on disassociated felonies. People v. Woods, 23 Ill2d 471, 179 NE2d 11. We must determine the issue in the light of those authorities.

In the case at bar the two offenses charged in the indictment were separated by a period of approximately eight months. The object of the theft charged in Count I was an automobile, whereas the theft charged in Count II involved cash and clothing. The victims of the two thefts are not linked by any general underlying scheme or plan on the part of the defendant. The only visible thread of continuity between the two offenses is that the same automobile played a role in each. Such an incidental connection cannot satisfy the plain meaning of the present statutory requirement that the separate offenses charged in a single indictment should arise out of the same “comprehensive transaction.” We therefore conclude that defendant’s motion for severance should have been granted. Since a new trial is necessary by reason of our holding on the defendant’s first contention, we will discuss briefly the issues here joined which may arise on a second trial.

Defendant contends there was a material variance between the allegation in the indictment as to the date of the offense charged in Count II and the evidence admitted at the trial. The indictment alleges that the theft from Currington occurred on March 20, 1967, whereas the proof showed that the first payment by Currington did not occur until the end of April. Defendant urges the materiality of that error on the ground that an alibi defense had been prepared based on the date of March 20, 1967. In People v. Johnson, 404 Ill 33, 87 NE2d 864, the precise question was in-valved. In that case the defendant argued that he could not be guilty as charged since on the date alleged in the indictment he was in the Vermilion County jail. The court found that contention to be without merit, citing People v. Taylor, 391 Ill 11, 62 NE2d 683, for the rule that proof of the precise date as alleged is unnecessary unless the allegation of a special time is an essential ingredient of the crime or the running of the statute of limitations is involved.

It is also contended that the testimony of Ora Brunt and George McDonald was not proper in rebuttal since it failed to meet any new issue raised by the direct evidence of defendant and was merely cumulative of the State’s case in chief. The function of rebuttal evidence is to explain, repel, contradict or disprove the evidence of the adversary. People v. Bell, 328 Ill 446, 159 NE 807; People v. Karmazinas, 80 Ill App2d 322, 224 NE2d 287. When defendant took the stand in his own behalf he denied ever having driven a 1962 Chevrolet. On cross-examination he denied ever having been in such a car with Ora Brunt. The State properly offered evidence in rebuttal. People v. Davis, 10 Ill2d 430, 140 NE2d 675. That such evidence may also have been admissible in chief does not preclude its admission in rebuttal. People v. Nettles, 107 Ill App2d 143, 246 NE2d 29. The testimony of the State’s witnesses in rebuttal, to the extent that it sought to rebut the defendant’s testimony that he had not driven a 1962 Chevrolet, was properly admitted. The further testimony of Ora Brunt, however, relating to cash payments to the defendant for a 1962 Chevrolet relates to another offense and should have been excluded. Such testimony neither explains nor is in reply to defendant’s evidence and is highly prejudicial.

Because of the errors hereinbefore set forth the judgment must be reversed and the cause remanded for such other and further proceedings as are consistent with the views herein expressed.

Judgment reversed and cause remanded.

DEMPSEY, P. J. and McNAMARA, J., concur.


author: MR. PRESIDING JUSTICE DEMPSEY

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Zachariah Smith, Defendant-Appellant.
    Gen. No. 53,284.
    First District, Third Division.
    February 19, 1970.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Nunzio D. Tisci, James N. Gramenos, and James J. Doherty, Assistant Public Defenders, of counsel), for appellant.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Kenneth L. Gillis, Special Assistant State’s Attorney and Elmer C. Kissane, Assistant State’s Attorney, of counsel), for appellee.
   MR. PRESIDING JUSTICE DEMPSEY

delivered the opinion of the court.

In a nonjury trial the defendant, Zachariah Smith, was found guilty of murdering Holice Malone and was sentenced to a term of fourteen to fifteen years in the penitentiary. He contends that the State did not prove beyond all reasonable doubt that he killed Malone, but that if he did kill him the homicide was voluntary manslaughter, not murder.

Malone was stabbed to death in a Chicago tavern. The State’s evidence showed that Malone and his friend Henry Edwards entered the tavern at approximately 10:30 p. m. They and three acquaintances who were already there purchased a pint bottle of wine and drank it in the washroom. The tavern was small—25' x 25'—■ and was crowded with about thirty men and women. Malone was in the washroom only a few minutes and when he came out he walked toward the front door where Edwards was waiting for him. As he made his way down the aisle he brushed against Smith as the latter turned away from the bar. Words passed between them and Smith pulled out a brown-handled knife and stabbed Malone. Malone grabbed his chest and staggered back. Smith advanced toward him but someone stepped in between them and said, “Leave him alone, he is hurt.”

Malone staggered out the door and fell on the sidewalk. Smith, with the knife still in his hand, followed Malone out the door and headed down the street. Edwards followed him. A block from the tavern Edwards stopped a passing police car and, pointing to Smith, said, “That man just stabbed a friend of mine and he still has a knife on him.” The officers jumped out of the car, approached Smith, announced they were police officers, and told him to stop and to drop the knife he was holding. After being warned twice, and after mumbling that the man shouldn’t have been bothering him, he dropped the open knife. The police arrested him and returned to the tavern. They found Malone lying bleeding on the curb and took him to a hospital where he was pronounced dead.

The arresting officer and an investigating officer testified that Smith had been drinking, and a microanalyst for the police department testified that there were traces of human blood on the blade of the knife Smith dropped.

Smith denied the stabbing. He testified that someone bumped into him as he stood at the bar and that after a brief conversation with this person he left the bar and played the jukebox which was on the opposite wall. He said that Malone came up, turned him around and asked, “Want to get it over with?” Smith answered, “It is all over, man,” and they shook hands. He said that they both walked away but that Malone turned and came toward him as if he were going to hit him. Malone backed him up against the wall and Smith held his hands up in the air. Smith had nothing in his hands and he did not know whether Malone had anything in his. He said that as Malone rushed toward him several persons dove between them.

Smith testified that he then turned and walked out of the tavern, unaware that Malone had been hurt. He denied having a knife in his hand during the argument and said that the only one he carried was a small pocketknife on a key chain which was attached to his belt. He said that if he had a knife in his hand someone must have put it there. He gave the same explanation for the knife he was carrying when he was arrested.

The bartender and two tavern patrons testified on Smith’s behalf. Each said that the altercation took place near the jukebox, rather than near the bar where the State’s evidence placed it. They said that Malone advanced on Smith as if he wanted to fight; however, they saw no fighting. Two of the witnesses said they saw Malone leave the tavern before Smith; one said Smith left first. All said that they saw no knife in Smith’s hands, nor did they see Smith make a forward motion, like a knife thrust, toward Malone.

The bartender also testified that one of the patrons handed him a small knife attached to a key chain which had been picked up from the floor. The defendant’s wife testified that this knife was the only one her husband ever carried and that she had never seen the one he had in his possession at the time of his arrest.

Smith argues that his guilt was not proved beyond a reasonable doubt since three witnesses said they did not see him stab Malone and only one witness, Edwards, said that he did; that Edwards’ testimony should be viewed skeptically because he was a friend of Malone and his testimony was not corroborated by independent witnesses who were present when the stabbing took place; further, that Edwards was standing near the door and the bartender testified that a person standing there could not see what took place at the jukebox because two telephone booths would obstruct his view.

It matters not that the State presented only one occurrence witness whereas the defense presented three; the testimony of one witness is sufficient to support a conviction if it is positive and the witness credible. People v. Johnson, 24 Ill2d 195, 181 NE2d 164 (1962); People v. Uselding, 107 Ill App2d 305, 247 NE2d 35 (1969). Although the friendship between Edwards and the deceased was a factor to be considered by the trial court in weighing the evidence, such friendship would not destroy Edwards’ credibility. The court believed his testimony that Malone and Smith encountered each other near the bar, that he saw Smith stab Malone with a brown-handled knife and walk out of the tavern with the knife in his hand. Although Edwards’ testimony was not corroborated by other patrons, it was corroborated by the arresting officer and by evidentiary facts and circumstances. Malone died from a stab wound in the heart; when Smith was arrested walking away from the scene of the crime he was clutching the brown-handled knife in his right hand; the knife was found to bear traces of human blood; when arrested Smith muttered that the man should not have bothered him; a small knife and key chain belonging to him were found on the tavern floor—which suggests that they were pulled from his pocket or brushed from his belt when he reached for the larger knife. Smith was the only person arguing with Malone and, as the court noted in reviewing the testimony, there was no evidence that any person other than Smith was close enough to have stabbed him.

In a nonjury trial, the trial court must draw the factual conclusions from conflicting testimony and weigh the credibility of the various witnesses. A reviewing court will not interfere with the court’s judgment unless the State’s evidence is so unsatisfactory that it is of the opinion that guilt has not been established beyond a reasonable doubt. People v. Vail, 74 Ill App2d 308, 221 NE2d 165 (1966). The evidence does not justify a reasonable doubt of the defendant’s guilt. The testimony of the State’s eyewitness, corroborated in part by the police officer and substantiated by surrounding facts, was far more believable than Smith’s testimony that someone put the knife in his hand after Malone was stabbed.

In view of Smith’s avowal that he did not stab Malone, his alternative contention that he stabbed him intentionally is incongruous. Nevertheless, a defendant may advance inconsistent defenses and Smith’s contention that the killing was voluntary manslaughter must be considered. Voluntary manslaughter is committed if the person who does the killing either unreasonably believes that such action is necessary to defend himself against death or great bodily harm, or if he is acting under a sudden and intense passion resulting from serious provocation by the individual killed. Ill Rev Stats 1967, c 38, § 9-2 (b) and (a)(1). The mental state of the accused at the time of the killing is an essential ingredient in determining if an intentional killing is voluntary manslaughter rather than murder. Since Smith did not testify to his fears or feelings, the objective circumstances must be examined to ascertain whether they could have induced in him the belief that he faced the loss of life or grievous bodily harm, or if they could have aroused in him an uncontrollable passion. If they could have done either, it must be determined if his belief was reasonable or if the provocation was serious enough to excite an intense passion in a reasonable person.

There is no evidence that Smith was threatened with imminent death or great bodily harm, or that the surrounding circumstances were such that he could reasonably believe he was so threatened. Malone brandished no weapon; neither in word nor manner did he threaten the life or limb of the defendant. Considering the occurrence in the light of all the defense testimony, the most that occurred between the parties was their bumping into each other and Malone’s hovering near Smith “dancing up and down like a boxer,” acting “like he wanted to fight him” or that “he was going to bop him.” Nor were the words and actions of Malone the kind that would excite a sudden and intense passion in a reasonable person; they did not constitute the serious provocation which would justify reducing the killing from murder to manslaughter.

The trial court stated that it found no evidence that the stabbing was done under sudden passion or with serious provocation. Neither Smith’s testimony nor the evidence extrinsic to his testimony warrants a contrary conclusion. The judgment of conviction is affirmed.

Affirmed.

SCHWARTZ and McNAMARA, JJ., concur.


text:
    Winifred Wells, Plaintiff-Appellant, v. Board of Education of Community Consolidated School District No. 64, Cook County, Illinois, Defendant-Appellee.
    Gen. No. 53,536.
    First District, Third Division.
    February 19, 1970.

      Norman, Engelhardt, Holland, Billick, Franke & Lauritzen, of Chicago (Ralph Miller and Allyn J. Franke, of counsel), for appellee.
    Ligtenberg, DeJong & Leahy, of Chicago (John Ligtenberg, Andrew J. Leahy and Mary Lee Cullen Leahy, of counsel), for appellant.
   MR. JUSTICE SCHWARTZ

delivered the opinion of the court.

This action was brought by Winifred Wells, a public school teacher, to recover damages suffered as a consequence of her wrongful discharge by defendant (Board). In an earlier appeal (85 Ill App2d 312, 230 NE2d 6) we affirmed an order of the trial court which directed the Board to reinstate the plaintiff. She was reinstated and then sued for damages for her wrongful discharge. On this appeal plaintiff contends that the damages which the trial court awarded are not adequate. -Defendant has cross-appealed contending that the damage award is excessive. The facts follow.

Plaintiff was first employed by the Board for the 1961-62 school term as a teacher of trainable mentally handicapped children. Before the expiration of her contract in 1962 Dr. Plimpton, superintendent of the school district, recommended to the Board that she be reemployed for the 1962-63 school term. The Board agreed and offered plaintiff a contract for that term, which she accepted. Early in 1963 the superintendent informed the Board that he, the principal and the assistant-principal of the school in which plaintiff taught recommended against her reemployment for the 1963-64 school term, pointing out that she would achieve contractual continued service (tenure) if she were reemployed. The Board however offered plaintiff a contract for that school term and she accepted. The terms of that contract provided that plaintiff remain at the ninth teaching experience salary level, instead of advancing to the tenth level. Each teaching experience salary level is assigned a decimal index number. The higher the experience level, the larger the index number so that a teacher credited with ten years of teaching experience would earn more than one who was credited with nine years’ experience. When plaintiff was employed for the 1961-62 school term she was credited with the equivalent of seven years’ teaching experience and placed on the eighth level of the salary schedule. She was advanced to the ninth experience level for the 1962-63 school term, which is where she remained for the 1963-64 term. The effect of retaining plaintiff at the ninth level was to reduce the amount of the increase she would have received had she been advanced to the tenth level. In February 1964 the superintendent renewed his objection to the plaintiff’s continued employment and the Board resolved not to reemploy her for the 1964-65 school term. It was that discharge which was involved in the prior litigation. The one basis for the prior decision was that plaintiff was entitled to notice prior to her discharge so that she could have an opportunity to correct her alleged faults.

Plaintiff was reemployed by defendant at the commencement of the 1968-69 school term. Her damages are therefore limited to a four-year period, that is, the school terms of 1964-65, 1965-66, 1966-67 and 1967-68. The trial court in computing damages assumed (1) that plaintiff would remain at the ninth teaching experience salary level throughout the four-year period (the same teaching experience level at which she had been working for the two school terms preceding her discharge), (2) the “base salary” figure for each of the four years would be the same as that actually used by the Board in computing the salaries of its regularly employed teachers during those years, rather than the “base salary” figure used in computing the plaintiff’s salary for the 1963-64 school term, (3) plaintiff would receive the $300 special education additive which she had been receiving for teaching handicapped children for each of the four years, and (4) plaintiff’s earnings from other sources during the period would be set off against the salary she would otherwise have received from defendant.

Plaintiff contends that the Board improperly held her on the ninth teaching experience salary level for the 1963-64 school term and that the trial court should have computed damages on the assumption that she should have been on the tenth experience level for that term and would have “automatically” advanced one level for each school term thereafter. Following her discharge, the plaintiff accepted employment in Waukesha, Wisconsin as a public school teacher. Waukesha is approximately 90 miles from her home in Park Ridge, Illinois. Plaintiff also contends it was error to set off those earnings against the salary she would have received from the defendant.

In its cross-appeal the Board contends that the trial court should have used the “base salary” figure paid to plaintiff for the 1963-64 school term for each of the four years that she was not in its employ and further, that the $300 special education additive included in her salary while she was employed by the Board should not be included as an element of damages.

Plaintiff’s contention that she was entitled to advance one teaching experience level on the salary schedule after each school term rests on her assertion that such advancement is really “automatic” even though the controlling salary schedule expressly conditions it upon the joint recommendation of her principal and superintendent and the approval of the Board. She cites this court’s opinion in Miller v. Board of Education of School Disk No. 132, 98 Ill App2d 305, 240 NE2d 471, as authority for that proposition. There the plaintiff was wrongfully discharged from his position as a public school teacher. He brought an action for reinstatement and damages. We held that the amount of lost wages would be “that amount a teacher would normally have received had he not been discharged less the amount he earned or reasonably should have earned in mitigation.” In determining whether in the normal course of events the plaintiff could reasonably have expected to advance a teaching experience level on the salary schedule, the court looked beyond the terms of the schedule to the actual practice prevailing in the school district. Defendant’s district superintendent, who had been so employed for approximately eighteen years, testified that although the defendant reserved the right to withhold experience increments, he did not recall a single instance in which it took such action and it was on that evidence that this court concluded there was no basis for withholding the experience increments the plaintiff would normally have received.

In the instant case defendant’s district superintendent testified that the practice in the district was to have each school principal interview the teachers under him who were not going to be recommended for advancement, to inform them of that fact and to suggest that such teachers either “make a test case out of this” or seek employment elsewhere. During the 1963-64 school term there were two teachers who remained at the teaching experience salary level they had attained the preceding school term. There were many others who took their principal’s “suggestion” and did not seek reemployment. The evidence as to the prevailing practice in defendant’s school district supports the trial court’s conclusion that plaintiff could not reasonably have expected to advance an experience level in the salary schedule during the period of her absence. Nor was the Board acting improperly when it offered plaintiff a position for the 1963-64 school term at the same experience level as in the preceding term. Plaintiff accepted the offer and worked through the 1963-64 term on that basis.

We proceed to consider plaintiff’s contention that it was error for the trial court to set off her earnings as a teacher in a Waukesha, Wisconsin school district against the salary she would otherwise have received from the defendant. Since plaintiff earned the right to contractual continued service (tenure) in accordance with the provisions of the School Code (see our opinion in 85 Ill App2d 312, 230 NE2d 6), she was entitled to damages for her wrongful discharge under the terms of section 24-12 of the Code. Ill Rev Stats, c 122, § 24-12 (1963). While conceding that a person who has been wrongfully discharged cannot recover what he might reasonably have earned in other employment of like nature, plaintiff contends it would be unreasonable for her to move to another locality to secure employment and hence that it was error to set off wages arising from employment in such locality when she has voluntarily relocated. Several cases are cited which hold that a wrongfully discharged employee is under no duty to move to another locality in order to mitigate his damages, but we are referred to no authority for the proposition that wages earned in another locality should not be set off against the amount that would otherwise be due. Even if we assume that the plaintiff was not duty bound to accept employment in Wisconsin, it would be a nonsequitur to say that having done so, her earnings would therefore not operate to mitigate the damages otherwise due her from the defendant.

The law is clear that a wrongfully discharged employee can recover only the difference between what he would have received had he been permitted to complete the contract and what he earned, or could reasonably have earned in the interval between his wrongful discharge and the date on which his contract would have been completed. Mount Hope Cemetery Ass’n v. Weidenmann, 139 Ill 67, 28 NE 834; Trustees of Soldiers’ Orphans’ Home v. Shaffer, 63 Ill 243; Patrick v. McAleenan Boiler Co., 136 Ill App 563. The same holds true with respect to the amount of wages recoverable by a wrongfully discharged public school teacher who has achieved tenure. Miller v. Board of Education of School Dist. No. 132, supra; Compton v. School Directors of Dist. No. 14, 8 Ill App2d 243, 131 NE2d 544. It would be tantamount to the imposition of punitive damages to hold the defendant liable for more than the actual damages sustained by the plaintiff. The trial court correctly allowed the set off of her Waukesha earnings.

The Board raises two points in its cross-appeal: (1) that the “base salary” figure used in computing plaintiff’s salary for the 1963-64 term should likewise have been used by the trial court in computing her salary for each of the four school terms here involved and (2) that the $300 special education additive for teaching handicapped children which was included in her salary for the 1961-62, 1962-63 and 1963-64 school terms should not have been included in the computation of her salary for any of the four years of her absence. There is no merit in either contention. The uncontradicted evidence shows that the “base salary” figure increased each school term and was uniformly used as the initial figure from which other components of a teacher’s gross salary were computed. Under the test set out in Miller, supra, the evidence was sufficient for the trial court to find that the “base salary” figures actually used in computing teachers’ salaries in each of the four years of the plaintiff’s enforced absence were such as would normally have been used in computing her salary had she not been wrongfully discharged, and the same can be said of the trial court’s decision to include the $300 special education additive for each of the four years.

The judgment of the trial court is affirmed.

Judgment affirmed.

DEMPSEY, P. J. and McNAMARA, J., concur.