author: MR. JUSTICE THOMAS J. MORAN

text:
    Robert D. Marian and Phyllis J. Marian, Plaintiffs-Appellees, v. Lena Pellet Company, an Illinois Corporation, Defendant-Appellant.
    Gen. No. 69-113.
    Second District.
    February 25, 1970.

      Holtan and Garrity, of Freeport, for appellant.
    Knight, Ingrassia and Schirger, of Rockford, for appellees.
   MR. JUSTICE THOMAS J. MORAN

delivered the opinion of the court.

This action was brought by a dairy farmer for the death of one cow and damage to his dairy herd, allegedly caused by the presence of arsenic in feed pellets provided by the defendant feed company. The defendant appeals from a jury verdict against it.

Defendant complains that the trial court erred in failing to grant its motion for a directed verdict at the close of the plaintiffs5 case; at the close of all of the evidence; and for failing to enter judgment notwithstanding the verdict or grant a new trial as requested in its post-trial motion. Complaint is also made that the court erred in instructing the jury on circumstantial evidence.

The plaintiffs are dairy farmers in Orangeville, Illinois. Robert Marian is a well-trained and qualified dairy farmer. In 1966 he had about forty head of dairy cows, 37 or 38 of which were registered. In September of 1966 he changed the feed of his herd which was provided in bulk by the defendant. From September 17, 1966, to February, 1967, the entire grain ration of the herd was Lena Pellets. Approximately two tons of pellets were delivered every four days. During this period the cows were also fed the plaintiffs5 own hay and silage.

On December 8, 1966, he observed his first sick cow; thereafter, there were sixteen other cows that had become sick. On that date he called a local veterinary clinic and Dr. Kleeker, who regularly serviced the herd, came and examined the sick cow. It seemed that the sickness attacked the cows which were eating the most grain. The affected would go off their feed as soon as they freshened; they ran no temperature but some developed diarrhea. Other veterinarians looked at them, but none could determine the condition from which they suffered. Efforts by the veterinarians did not seem to help, and milk production fell off.

On February 17, 1967, the cow in question calved in the morning; that evening she went off her feed. The following morning she was found dead in the barn and there was no evidence that the cow died from calving. Her carcass, along with a sample of the feed pellets, were taken to the TJSDA laboratory in Madison, Wisconsin, where both were examined and reported upon.

Veterinarian Klecker testified that he was familiar with the plaintiffs’ farm and herd for almost ten years and that he serviced the herd in question between two and three times each month in an average year; that in December of 1966 he was called and found that the cows were off their feed and down on milk production, but had no fever; that he recommended the plaintiffs analyze the hay and silage or check the water for something toxic; that he suspected something toxic was affecting the herd; that the cows were checked by three veterinarians, however, they were unable to arrive at any type of medical opinion prior to February, 1967.

The doctor further testified that arsenic is not a part of dairy feed and is a severe poison to dairy cattle; that there are organic and inorganic sources of arsenic; that the effect of arsenic differs on various animals; that a certain level of organic arsenic may not kill one animal while only one-fourth of that same amount may be fatal to another; that four parts per million of arsenic in the liver of a cow might possibly be enough to kill a cow, depending on the form of the arsenic; that it is difficult to diagnose the effects of toxic arsenic on cows because the symptoms are obscure; you may get a poor hair coat, loss of appetite, emaciation, production affected ; that there should be no arsenic in feed for dairy cows; that there is absolutely no tolerance for arsenic in dairy feed and that he suspected the feed at the time.

Upon cross-examination the witness testified that he had made no special study of the effects of arsensic but that poisons had been studied in the course of his schooling; that he had seen poisoning cases involving other animals but had not seen it in the case of a cow before this; that inorganic arsenic is much more toxic than organic arsenic, but the report concerning the finding of the dead cow in question did not indicate whether the arsenic found in its liver was organic or inorganic; that he had recently read some professional article on arsenic poisoning; that if there was 0.3 parts per million of arsenic found in the liver of a cow the witness did not know for sure whether this would be toxic, but there is a wide variation in the different compounds; and that arsenic is accumulated in an animal but if the animal is separated from the source, in time it passes off.

The defendant produced Dr. Eveleth, a toxicologist with the Department of Agriculture for the State of Wisconsin. This witness testified that he had a long experience with toxicology and has devoted much of his time to the study of the effect of poisons; that he has been an expert in arsenic poisoning for over twenty years; that the first sign of arsenic poisoning in a dairy cow is a decrease in milk production and a lack of appetite; that within twenty-four hours or so the animal has loose diarrhea and there may be blood involved; that if a lethal dose is involved, the fourth stomach of the cow would be fiery red and the intestines the same way; that the intestinal contents will be high in arsenic and if the animal has lived long enough the liver and kidneys will contain considerable arsenic; that the animal will be depressed and give very little milk; and that she may drink considerable water, but the next thing is diarrhea and that either clears up, or the cow dies.

The witness referred to and read a report from the laboratory concerning the dead cow. The report was admitted without objection, relied upon by the parties and provided:

“The feed sample was negative for lead and showed .4 parts per million of arsenic. The cow showed a fibrinous pleuritis on necropsy with blood in the pleural cavity. The liver showed 4 P.P.M. of lead and the bowel content was negative. The liver showed .3 P.P.M. of arsenic and the bowel content 4.0 P.P.M. Over 5 P.P.M. of lead in the liver and kidney are considered toxic. Over 2 P.P.M. or arsenic in tissues are considered toxic.”

The witness was of the opinion that the fibrinous pleuritis with blood in the pleural cavity was not symptomatic of arsenic poisoning but symptomatic of shipping fever, or virus diseases with organism pasturella; that an animal would have to eat 30 to 31 thousand pounds of feed to kill it, if the feed contained 4 parts per million of arsenic; that in his opinion the presence of the fibrinous pleuritis would mean that the cow had been ill for some time; that if the animal had 4.0 parts per million of arsenic in the bowel content, she would still have to eat 3,000 pounds of the feed to get a toxic dose; that if it was found that the animal had 0.4 parts per million arsenic in the bowel content she would have had to eat 30,000 pounds; and that he did not consider toxic, %0fbs of one part per million of arsenic in the tissues of the liver. In his opinion, arsenic did not play a part in the death of the cow.

Upon cross-examination the witness testified that it is possible that one cow might be able to stand 8 parts per million of arsenic and another might not be able to withstand 4 parts per million of arsenic; that if a cow is slowly being poisoned by gradual accumulations of arsenic, the animal would not suddenly become ill; and that the United States Department of Agriculture does not recommend giving arsenic in dairy supplements.

Upon the close of the evidence, the plaintiff tendered IPI Instruction No. 1.03 concerning circumstantial evidence.

The jury returned a verdict of $10,000 in favor of the plaintiffs.

We have set forth in some detail the evidence introduced in the case and are unable to say that all of the evidence, when viewed in the aspect most favorable to the plaintiffs, so overwhelmingly favored the defendant in this case that no contrary verdict based on that evidence could ever stand. Pedrick v. Peoria & Eastern R. Co., 37 Ill2d 494, 510, 229 NE2d 504 (1967). The court properly denied the motions.

Defendant complained that IPI 1.03 concerning circumstantial evidence was given in error because no (relevant) circumstantial evidence was produced. We cannot agree with such premise. The defense doctor testified that in his opinion, the content of arsenic in the dead cow’s liver and tissues, as well as the feed, could not have caused the death of the cow. The treating veterinarian testified that in his opinion the cows were suffering from poisoning and any arsenic in their feed would adversely affect them, but that the precise amount that would be lethal varied from animal to animal. Both witnesses agreed that arsenic poisoning would cause cows to go off their feed, become weak, and result in diarrhea. The owner and treating veterinarian testified to the presence of these symptoms.

From these facts the jury could have reasonably inferred that the herd and the dead cow suffered from arsenic poisoning, or, that the arsenic did not have an effect upon the herd. It is for the jury to determine which inference it will draw from circumstantial evidence. Sherman v. City of Springfield, 111 Ill App2d 391, 405, 250 NE2d 537 (1969); American Nat. Bank & Trust Co. v. People’s Gas Light & Coke Co., 42 Ill App2d 163, 173, 191 NE2d 628 (1963).

The testimony is conflicting and the factual issue of causal connection close. It is not the function of this Court or judges to substitute their judgment for that of the jury. The determination of the credibility of the witnesses and the facts of the case are solely the function of the jury. This is particularly true in cases such as this where the issues are close. Tuskey v. Callos, 112 Ill App2d 213, 218, 250 NE2d 524 (1969); Gary v. Rogers, 104 Ill App2d 154, 158, 243 NE2d 665 (1968).

The jury was presented with the testimony of the treating veterinarian which was attacked by the testimony of an expert who had not treated or examined the herd, the dead cow or the feed. His testimony is based upon the laboratory report and his own expertise. It is the jury’s obligation and right to choose between the version which it felt was most credible and persuasive. This court will not disturb the finding of the jury.

Defendant directs our attention to the case of Bradley v. Consolidated Silver Mountain Mines, Inc., 162 Wash 198, 298, 324, 298 P 324 as authority for the proposition that the treating veterinarian was not properly qualified as an expert on arsenic poisoning and therefore, he should not have been allowed to testify with regard to the effects of arsenic poisoning on cows. We do not find that the case cited holds such a rule, nor do we find that it has application to the case at bar. No objection was made to the testimony of witness Klecker’s testimony regarding his findings and the condition of the herd. Furthermore, it must be remembered that this case is an action for damages to the herd and the property damage suffered by the plaintiffs by reason of the loss of production. The firsthand knowledge of veterinarian Klecker would certainly be admissible with regard to the condition of the herd. The testimony of both of the veterinarians agreed as to the effects of arsenic poisoning. There is no dispute that it was present in the feed pellets. The witnesses’ opinion of the effect of arsenic poisoning was admissible and the weight to be given the opinion was for the jury.

Judgment affirmed.

ABRAHAMSON and SEIDENFELD, JJ., concur.


source: Caselaw Access Project

author: MR. JUSTICE SEIDENFELD

license: Public Domain

text:
    Fox Lake Hills Property Owners Association, Plaintiff-Appellee, v. Fox Lake Hills, Inc., Defendant-Appellant.
    Gen. No. 69-38.
    Second District.
    February 26, 1970.
    Rehearing denied and supplemental opinion March 31, 1970.

      John F. Grady, of Waukegan, Michael 33. Roche and Richard W. Burke, of Chicago, for appellant.
    William E. Hartnett, of Waukegan, for appellee.
   MR. JUSTICE SEIDENFELD

delivered the opinion of the court.

This appeal by Fox Lake Hills, Inc., a subdivider, challenges the order of the trial court which declared in favor of Fox Lake Hills Property Owners Association that the subdivider was, alternatively, not empowered to amend subdivision restrictions and covenants under claimed reserved powers, or, if empowered, was estopped from exercising its power to amend.

The defendant subdivider in 1954 opened up “Fox Lake Hills” which was in parts separated by about one mile. One portion of the subdivision is called the “Chesney Area,” another the “Busse Area.” There were essentially similar covenants, conditions, restrictions and easements in both areas, and each area was subject to the following provision:

“‘(16) Every purchaser of a lot within the subdivision by the payment of the purchase price and acceptance of a deed therefore, agrees for himself, his heirs and assigns to become a member of the Fox Lake Hills Property Owners Association, a not for profit corporation. Every purchaser of a lot within the subdivision by the payment of the purchase price and acceptance of a deed therefor further agrees for himself, his heirs and assigns, to pay to the Fox Lake Hills Property Owners Association the assessments levied by said Association for the purpose and purposes for which it is organized, not to exceed $5.00 per annum for each unimproved lot and $10.00 per annum for each improved lot, said assessments to be payable to the treasurer of said Association at its office. In the event of default in payment of aforesaid assessment every such purchaser further agrees, authorizes and empowers the said Association, its officers, successors and assigns, to assert a lien against his or her lot and to file on behalf of said Association a Notice of Lien with the Office of the Recorder of Deeds of Lake County, Illinois, for the amount of said lien, which lien shall be and remain at all times inferior, junior and subordinate to the lien of any indebtedness secured by mortgage or trust deed.’ ”

Additionally, in the Chesney Area covenants and conditions, the following appeared:

««(20) Fox Lake Hills, its successors and assigns, shall have the right from time to time hereafter to alter, change, modify, revoke or delete, in whole or in part, any or all of the restrictions, covenants and conditions above set forth and contained in the Declaration of Restrictions filed of record in the Recorder’s Office, Lake County, Illinois, without the approval or consent of any property owner or owners or who may hereafter become owners of property in said subdivision.’ ”

The reservation of power in the subdivider was in the general recorded covenants and also repeated in hundreds of separate contracts of sale between the sub-divider and individual lot purchasers.

At a meeting of lot owners on October 14th, 1956, an attorney for the subdivider explained the differences between the restrictions in the Chesney and Busse contracts and led the discussion about the forming of a Property Owners Association. There was extensive discussion that there could be one or two associations. At a subsequent meeting, in 1957, the lot owners decided in favor of one association with weighted voting.

On December 1st, 1959, the subdivider conveyed the parks and beaches in both areas to the plaintiff Association.

Subsequently the Chesney area owners became dissatisfied with the single association, claiming that their dues were not being equitably used to maintain the parks and beaches in the Chesney area. In the latter part of 1962, the Chesney lot owners approached the subdivider and asked for a change in the Chesney restrictions so that they could have their own association. On the virtually unanimous petition of the lot owners in the Chesney area, the subdivider granted the request and exercised its reserved right under paragraph 20 above by amending the restriction contained in paragraph 16 above to release the Chesney owners from their future obligation to pay dues to the plaintiff Association. The recorded document accomplishing this was held void by the order below.

The complaint prayed that the subdivider’s change of restrictions be declared ineffective and that the defendant corporation pay the dues to the plaintiff on the Chesney area lots. The order appealed from held the reserved power of amendment exercised under paragraph 20 was invalid and the defendant estopped from using it.

The defendant argues that the relief granted was improper because neither the record owners of the Chesney lots nor the Chesney Shores Property Owners Association were made parties, and that their interests made them necessary parties; that the order was inequitable in that it worked a hardship on the Chesney owners with no benefit to others; that the right to revoke or delete any and all restrictions without the consent of the individual lot owners was properly reserved by the subdivider, and should have been held enforceable against the plaintiff Association suing as a third-party beneficiary. The subdivider finally argues that the plaintiff Association has failed to prove the elements of equitable estoppel to bar the use of an admittedly legal reserved power.

The general proposition of law that all persons having any substantial legal or beneficial interest in the subject matter of litigation must ordinarily be joined as parties is undisputed. Ragsdale v. Superior Oil Co., 40 Ill2d 68, 71, 237 NE2d 492 (1968); Georgeoff v. Spencer, 400 Ill 300, 302, 79 NE2d 596 (1948); Gaumer v. Snedeker, 330 Ill 511, 515, 162 NE 137 (1928); Burnham v. Roth, 244 Ill 344, 353, 91 NE 472 (1910). It is also undisputed that if an omitted interest is already effectively represented by parties to litigation, it need not be joined. Cales v. Dressier, 315 Ill 142, 149, 146 NE 162 (1925).

In the view which we have taken, neither the Chesney Association nor the owners of the lots in the Chesney area are necessary parties. It was the defendant subdivider’s act alone, requiring no consent by the express terms of the recorded covenants and restrictions, in attempting to exercise the reserved power that the judgment below struck down.

The particular covenants with which we are here concerned, we believe to have been intended for the benefit of the subdivider personally. The express reservation of the power to revoke the restrictions and conditions expressed in the recorded “Declaration of Restrictions and Conditions” viewed in its entirety, tends to negative any suggestions that the restrictions were imposed with the intention of creating a general or neighborhood plan of development for the benefit of all owners in the area. Generally, such reserved powers are construed as personal covenants which can be exercised only by the one who imposes the restriction, particularly when the power may be exercised by its terms without the consent of property owners. See 4 ALR3d 573, 574, Annotated. There is some implication of this intent in the unilateral act of the defendant in deleting the reserve power clause in the Busse area contracts.

The essential intent and purpose of the reservation by the subdivider of the power to change the covenants and other promises respecting the use of the land appears on the whole record to be to protect the sub-divider in the salability of its remaining lots. While it appears never to have been contemplated that the particular covenants with respect to the use of common parks and beaches would be subject to extinguishment by the exercise of such reserved power, no attempt is here involved to deprive any lot purchaser of such use. The promises incidental to such use, that is, the formation of an association or associations to maintain these common areas and to deal with common problems of a subdivision are incidental to the covenants to provide the common areas. As to such incidental provisions, the subdivider retained the power to transfer title to the common areas specifically under a paragraph 13 which expressly provided for a conveyance to the Fox Lake Hills Association.

The testimony with respect to the organizational meeting, held prior to recording the declaration, showed that the subdivider had no personal interest in the form of the association, or whether there would be one or two associations. This decision was to be solely that of the purchasers who were represented at the meeting. Once the wishes of the purchasers were demonstrated by the designation and creation of the Fox Lake Hills Association for all areas of the subdivision, the subdivider had no further substantive interest to protect in the reservation of his powers, in this respect. The later formal conveyance of the title to the common areas to the chosen association is consistent with this view. We believe that this conveyance satisfied the purpose of the reservation of powers as it applied to the incidental promises with respect to the vehicle by which the areas were to be maintained. There is no sufficient wording in section 20, in our view, when the entire series of covenants and restrictions are read with the record, to support a conclusion that the subdivider intended to retain the continuing right to detail changes or designate additional associations. This right was not at all essential for the subdivider’s protection or for his benefit.

There was no evidence that the subdivider ever misrepresented the nature of the covenants or Ms general power of revocation as applicable only to the Chesney area and not to the Busse area, and we do not feel that an estoppel can be based on this theory. However, estoppel may be based upon nonverbal acts inconsistent with the intent to enforce stated obligations. See ALI Reports, Restatement of the Law of Property, § 559, at page 3299.

The transfer of title to Fox Lake Hills Association, after the purchasers had chosen it as its sole association, was inconsistent with the intent to enforce the general reserved powers in that limited field thereafter.

A contrary result would create the anomalous position of having title to all of the common areas in one association, and the duty to maintain and collect assessments for the maintenance of a portion of the areas in another association which could not exercise physical control over the properties involved in the common easement. Certainly the Chesney owners are entitled to have their payments properly applied, but they are not without remedy against the Fox Lake Hills Association based on such premise. That is not involved in this suit. The payments which the Chesney owners have made to the Chesney Association are also subject to recovery by the Chesney owners and may be applied so that the Chesney owners will not be damaged by having lost the payments innocently made to a second association.

The judgment below is affirmed.

Affirmed.

DAVIS, P. J. and MORAN, J., concur.

SUPPLEMENT TO OPINION UPON DENIAL OF PETITION FOR REHEARING

The defendant, Fox Lake Hills, Inc., in its Petition for Rehearing has requested a clarification of the last sentence of the opinion,

“The payments which the Chesney owners have made to the Chesney Association are also subject to recovery by the Chesney owners and may be applied so that the Chesney owners will not be damaged by having lost the payments innocently made to a second association.”,

relative to the status of payments made by the Chesney owners which have been properly applied for the maintenance of the public areas in the Chesney area.

We, therefore, supplement the opinion by the addition of the following paragraph:

Further, to the extent annual payments so made to the Chesney Association have already been properly applied to expenses which otherwise would have been borne by the Fox Lake Hills Association, the Chesney owners are entitled to an offset against any annual payments claimed from them by the Fox Lake Hills Association.

and deny the Petition for Rehearing.

       It appeared that the reserved power was not in the Basse covenants and conditions for the reason that the mortgage company providing the financing in the Basse area insisted that it be deleted.

       A second document was recorded changing restriction 16 to require the Chesney owners to become members of and to pay dues in the future to the Chesney Shores Property Owners Association but the order below did not purport to affect this.

       The Busse area was given greater voting strength on the basis of the fact that there were 600 lots in that area and 400 lots in the Chesney area.

       (13) All beaches, parks and piers in said real estate shall not be used in any manner by the general public but shall be restricted solely to use by the owners and occupants of the lots in said real estate, their families and guests, provided:
      (a) That Fox Lake Hills, Inc., its successors or assigns, at any time hereafter reserve the right when owners of lots in said real estate have organized and created a property owners’ association for governing and regulating the affairs of the subdivision and when the same has been approved by Fox Lake Hills, Inc. to assign, transfer and set over unto such property owners’ association all or any portion of the right, title and interest of the undersigned in and to said beaches, parks and piers.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Melvin Bauswell, Defendant-Appellant.
    Gen. No. 69-127. (Abstract of Decision.)
    Second District.
    February 26, 1970.
    Kevin P. Connelly, Public Defender, of Wheaton,
    and John 0. Vogel, of Glen Ellyn, for appellant;
    William V. Hopf, State’s Attorney, of Wheaton, and Ralph J. Gust, Jr., Assistant State’s Attorney, for appellee.
   Opinion by JUSTICE SEIDENFELD. Not to be published in full.


author: GOLDENHERSH, J.

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Elder Mack, Defendant-Appellant.
    Gen. No. 69-137.
    Fifth District.
    February 26, 1970.

      Hoagland, Maucker, Bernard & Almeter, of Alton (Donald L. Smith, of counsel), for appellant.
    William J. Scott, Attorney General of State of Illinois, of Chicago, Morton E. Friedman, Assistant Attorney General, of Chicago, and R. W. Griffith, Jr., State’s Attorney, of Edwardsville, for appellee.
   GOLDENHERSH, J.

Defendant, Elder Mack, was tried by jury in the Circuit Court of Madison County, convicted of the crime of Murder and sentenced to the Illinois State Penitentiary for not less than 25 nor more than 65 years.

Robert Lee Lunsford testified that on Wednesday, June 19, 1968, at approximately 10:30 to 11:00 p. m., in response to a call from his daughter, he looked out a window and saw a taxicab standing in front of his home. Two doors of the cab were open. He went out to the cab and saw a man lying a short distance to its rear. He saw no one else in the vicinity of the cab. The police were called.

Delbert Clemons, a deputy sheriff of Madison County, was dispatched to investigate “a report of a cabdriver laying in the middle of the road,” and he and his “riding partner” arrived at the scene at 11:38 p. m. He found a taxicab sitting in the middle of the road, the motor was running and both front doors were open. He found a man lying 55 paces from the vehicle. He could see two wounds in the man’s back and one behind his right ear.

John One,sky, the riding partner, testified to substantially the same matters.

Demos Nicholas, a deputy sheriff, was present at the hospital when an autopsy was performed on the body of the cabdriver, identified as Swansey Martin. Dr. John Mueller, the pathologist, removed two bullets from the body and gave them to Nicholas. The bullets were placed in an envelope which was initialed by Nicholas and the doctor, and Nicholas delivered them to Chief Deputy Sheriff Frank Schmidt. He stated that a third bullet removed from the body was fragmented. Upon reference to his notes he testified he was in error when he stated he had given the envelope containing the bullets to Schmidt. He stated that on June 22, 1968, he took the bullets and a Rohm revolver to the St. Louis, Missouri Police Department. The revolver was test-fired in his presence and the slugs from the gun were compared to the two in the envelope.

The slugs removed from the body of the deceased were returned to the sheriff’s evidence room. On July 12, 1968, Nicholas took them and a different Rohm revolver to the St. Louis Police Department. He had been given the gun by Deputy Sheriff William (Dilly) Connors. He identified an envelope as containing several .22 caliber short bullets taken from the second gun. Further references to a weapon in this opinion are to this second revolver.

Dr. Mueller testified that upon examination of Martin’s body he found three lethal bullet wounds, one to the head and two to the chest wall. The two bullets from the chest cavity were recovered “fairly intact,” the bullet removed from the skull was fragmented. The two bullets were marked by use of a hemostat to make a slash across the base.

Robert Rizzi, a deputy sheriff, testified that on August 5, 1968, he received an envelope from the St. Louis Police Department, placed it in the evidence room, and when Nicholas returned from vacation he again took charge of the sheriff’s evidence room. This envelope contained a revolver, bullets taken from the revolver, and the two slugs removed from the body.

Detective Paul Reeder, a firearms examiner for the St. Louis Police Department, testified he received the revolver, bullets and slugs from Nicholas on July 12, 1968, and returned them to Rizzi on August 5, 1968.

Detective Joseph Brasser, a firearms examiner with the St. Louis Metropolitan Police Department, testified he had been with the police department for 15 years, had been trained for two years by another firearms examiner, was an instructor on firearms for 3 years, and had been a gunner’s mate in the Navy. He had been an examiner for 3% years. He described the method used in making a ballistics test and stated that in his opinion the slugs removed from the body were fired from the revolver.

On cross-examination he described the Rohm revolver as being a fairly common weapon of German origin, priced approximately $12 to $22. He stated that in comparing two such guns manufactured in close sequence the number, twist and width of the grooves would be the same but the striations would be different. The Rohm guns are peculiar in that they have 8 “lands” and “grooves” with a right twist.

William Connors testified that a lady named Betty Mack gave him the gun in question sometime in July and he gave it to Demos Nicholas. Nicholas made a record of the serial number.

A clerk in a store in Alton produced its record of firearm sales. An entry made by him showed the gun to have been sold to defendant on June 17, 1968. He identified defendant as the purchaser. The record showed the sale of six Rohm guns in a short period of time. The serial numbers indicated manufacture at approximately the same time.

Patricia Atwood, a driver and dispatcher for American Cab Company, testified that on June 19, 1968, at approximately 11:10 p. m., she had dispatched Martin’s cab to the area where the cab and body were found.

Mrs. Betty Mack, an aunt of the defendant, testified she was given the revolver or one -similar to it by defendant’s brother a day or two before she turned it over to Connors.

Mrs. Mary Mack, wife of defendant’s brother, George, testified that in June of 1968 she and George were living in Evanston. Defendant came to their home late one night in June and later told her he had given her husband a gun. She could not identify the gun in evidence as being the same one.

Marjorie Christeson testified that on June 19, 1968, at approximately 8:00 p. m. defendant and another man came to the taxicab office operated by the witness and her husband. With these two men as passengers, she dispatched a cab to an address in St. Louis. The cab was gone about 15 minutes.

Jack Canaday testified he drove the cab on the occasion described by Mrs. Christeson. He could not identify the defendant. He drove across the river to St. Louis and discharged his passengers at the “first crossover” of the highway. There were no buildings at the place where his passengers alighted from the cab.

Defendant testified that he had bought a gun similar to the one in evidence on a Monday. He placed it in his dresser and did not see it again until Wednesday or Thursday when he took it to his brother’s house in Chicago. He lived in Chicago for several weeks and then moved back to Alton with his brother and his wife. He denied being in the vicinity of the homicide. His room and dresser were open at times when he was not there.

Following defendant’s testimony, the court admitted, without objection, an exhibit showing defendant had been previously convicted of the offense of Theft and sentenced to the penitentiary.

We shall first consider defendant’s contention that The People failed to prove beyond a reasonable doubt that a crime had been committed and failed to prove that the accused had committed it. Defendant argues the trial court erred in denying his motions for directed verdict.

In our opinion the evidence of defendant’s purchase of the gun two days prior to the date of the shooting, the testimony of the firearms examiner and the evidence of defendant’s being in the Alton area on that night are sufficient to support the guilty verdict. As stated in The People v. Bernette, 30 Ill2d 359, 197 NE 2d 436, at page 367, “The jury need not be satisfied beyond a reasonable doubt as to each link in the chain of circumstances relied upon to establish guilt, but it is sufficient if all the evidence, taken together, satisfies the jury beyond a reasonable doubt of the accused’s guilt.”

Defendant next contends the slugs and pistol were admitted in evidence without proper foundation, arguing there is insufficient evidence that they were in the same condition at trial as at the time of the occurrence. He also contends the witness lacked the qualifications requisite to expression of an expert opinion. Both contentions are adequately answered in. The People v. Fisher, 340 Ill216, 236, 172 NE 743.

Defendant contends that certain testimony elicited from Mrs. Christeson and Jack Canaday, and a comment of the State’s Attorney during final argument, to all of which objections were sustained, were so prejudicial, that despite the court’s rulings he was deprived of a fair trial.

During the direct examination of Mrs. Christeson the record reflects the following:

Q. “Just relate what the conversation was between you and the Defendant.”

A. “As I remember it this boy askéd how much it was across the bridge.”

Q. “Did you dispatch the cab ?”

A. “Yes, I did.”

Q. “Did you do anything before you dispatched the cab?”

A. “Yes, I asked the driver to please leave his money with me.”

MR. TRONE: “I obj ect to that, Your Honor.”

THE COURT: “The objection is sustained and the answer is stricken and the Jury is instructed to disregard it.”

MR. SCROGGINS: “What did the driver do before he left?”

A. “He left his money with me — his bills, not his change.”

Q. “Why did he do that?”

MR.TRONE: “Iobject.”

THE COURT: “Objection sustained.”

MR. SCROGGINS: “Was the cab dispatched ?”

A. “Yes.”

Q. “Do you know how long the cab was gone? — just answer yes or no.”

A. “Approximately I would say, ten — maybe fifteen minutes; the next call came in at 8:10.”

Q. “When you dispatched the cab where did you dispatch the cab to ?”

A. “Just across the bridge into Missouri.”

MR. SCROGGINS: “Did you have another destination for this cab earlier, this same cab and these same people?”

MR.TRONE: “Iobject.”

THE COURT: “Obj ection overruled.”

MR. SCROGGINS: “The same people and the same cab, did you have a different destination earlier?”

A. “I was first asked . . .”

MR.TRONE: “Iobject.”

THE COURT: “The objection is sustained.”

MR. SCROGGINS: “Just state whether you had a different destination with these same two people and this cab ?”

A. “Yes.”

Q. “What destination was that?”

A. “St. Louis.”

Q. “Where in St. Louis?”

A. “Broadway and Taylor.”

Q. “When did this destination change?”

MR. TRONE: “I make obj ection to that.”

THE COURT: “The objection is sustained.”

The following appears in the direct examination of Jack Canaday:

Q. “Did you observe anything when you turned around and came back, you did turn around and come back?” A. “Yes.”

Q. “Did you observe anything when you turned around and came back?”

MR. TRONE: “I object.”

THE COURT: “Obj ection overruled.”

WITNESS: “Yes, I did.”

Q. “What did you observe ?”

A, “The same two men on the other side of the highway hitchhiking back to Alton.”

MR.TRONE: “Iobject.”

THE COURT: “The objection is sustained as to the last answer, the last part of that answer and the Jury is ordered to disregard it.”

MR. SCROGGINS: “Did you see any individuals when you turned the cab around ?”

A. “As I turned the cab around ?”

Q. “Yes.”

A. “No, sir. You see, I had to drive further up the road to the next crossover, the crossover on the other side of the divided highway.”

Q. “Did you see the two people then ?”

A. “Yes.”

Q. “What were they doing ?”

A. “They were hitchhiking.”

MR. TRONE: “I obj ect to that.”

THE COURT: “The obj eetion is sustained.”

During Canaday’s testimony on redirect the following occurred:

MR. SCROGGINS: “Did you do anything before you left the cab office?”

MR.TRONE: "Iobject.”

THE COURT: “Obj eetion sustained.”

During final argument the record shows the following:

“If you believe the testimony of Mrs. Christeson he went to a cab company in Alton in the company of another individual — that a destination was fixed in St. Louis — that the cabdriver was asked to remove the money from his pocket.”

MR.TRONE: “Iobject.”

THE COURT: “The objection is sustained.”

MR. SCROGGINS: “I submit to you, Ladies and Gentlemen of the Jury that Elder Mack bought a 22-caliber Rohm gun on the 17th day of June, 1968 — that he was in Alton, Illinois, on the 19th day of June, 1968— that he took one cab ride which was unsuccessful.” MR. TRONE: “I object to that, Your Honor.”

THE COURT: “Objection sustained as to that form of the argument.”

MR. SCROGGINS: “That he took a second cab ride.”

MR. TRONE: “I object to the reference that he is attempting to make.”

THE COURT: “It’s argument.”

This court is reluctant to reserve a judgment based upon evidence sufficient to sustain it, but it is our duty to do so when the record shows defendant did not receive a fair trial. It is true the court sustained the objections of defense counsel to the testimony of Mrs. Christeson that she had asked the cabdriver to leave his money with her, but in our opinion the cumulative effect of the insinuations of the questions and the argument are so prejudicial as to have effectively deprived defendant of a fair trial. The People v. Lewis, 313 Ill 312, 320, 145 NE 149. He is entitled to a trial by a jury uninfluenced by improper testimony or argument, and the judgment is accordingly reversed and the cause remanded for a new trial.

Defendant has argued other alleged errors which are not discussed for the reason that they are not likely to recur upon retrial. ¡

The court is appreciative of the excellent brief and argument of appointed counsel.

Judgment reversed and cause remanded for new trial.

MORAN and EBERSPACHER, JJ., concur.


author: RYAN, J.

text:
    Automobile Underwriters, Incorporated, Attorney-in-Fact for Subscribers at State Automobile Insurance Association, Plaintiff-Appellant, v. Hardware Mutual Casualty Company, a Mutual Insurance Company, Laura Koehl, Janet Koehl and Lawson M. Hopkins, d/b/a Hopkins Motor Sales and Service, Defendant-Appellant.
    Gen. No. 69-1.
    Third District.
    February 27, 1970.

      Westervelt, Johnson, Nicoll & Keller, and Heyl, Royster, Voelker & Allen, of Peoria, for appellant.
    Frederick W. Allen and McConnell, Kennedy, McConnell & Morris, of Peoria, for appellee.
   RYAN, J.

This case involves a dispute between two insurance companies as to which company is obligated to furnish defendant a defense in litigation which arose out of an automobile collision.

One, Grant, was test driving an automobile with a view to buying the same. The automobile was owned by Hopkins Motor Sales and Service. Grant was involved in an accident with another automobile, the occupants of which were injured and who subsequently sued both Grant and Hopkins. Hopkins’ insurer (defendant herein) refused to defend Grant. Grant’s insurer on a policy of automobile liability insurance covering another automobile sued Hopkins’ insurer for a declaratory judgment. The trial court held that the owner, Hopkins’ insurer was under no obligation to defend the driver Grant. We are of the opinion that the trial court was correct.

The dispute arose by virtue of apparently conflicting provisions of the two insurance policies. Grant’s policy issued by the plaintiff, Automobile Underwriters, Inc., agreed to pay all sums the insured became liable to pay as damages for bodily injury or property damage arising out of the use of "the owned automobile or any non-owned automobile.” An owned automobile is defined as including a temporary substitute automobile. “A non-owned automobile” is defined as “an automobile . . . not owned or furnished for the regular use of either the named insured . . . other than a temporary substitute automobile.” The policy then provides under the heading of “Other Insurance” as follows:

“. . . provided, however, the insurance with respect to a temporary substitute automobile or nonowned automobile shall be excess insurance over any other valid and collectible insurance.” (Emphasis added.)

Hopkins, the owner, had an automobile garage liability policy which had been issued by the defendant, Hardware Mutual Casualty Company, and which provides coverage for liability arising out of certain automobile accidents. Attached thereto was a document entitled “Limited Coverage for Certain Insured’s Endorsement.” This endorsement commences with the following recital:

“In consideration of the reduced rate of premium made applicable to the insurance under Part 1, it is agreed that this policy section is amended as follows:

“1. Paragraph 3 of ‘Persons Insured’ is amended to read as follows:

it

“ (3) (b) Any other person, but only if no other valid and collectible automobile, liability insurance, either primary or excess ... is available to such person; . . . .” (Emphasis added.)

The conflict arises by virtue of the italicized portions of the provisions of the two policies set forth above. The clause in plaintiff’s policy (driver Grant’s insurer) is commonly referred to as an “excess insurance” clause, while that in Hardware’s policy (owner Hopkins’ insurer) is referred to as an “escape” or “no liability” clause. The plaintiff has discussed the so-called majority view and minority view as these clauses have been interpreted by the courts. It is not necessary to detail these decisions in this opinion. They had been discussed at length by our Supreme Court in New Amsterdam Cas. Co. v. Certain Underwriters at Lloyds, London, 34 Ill2d 424, 216 NE2d 665. The New Amsterdam decision has aligned Illinois on the side of the majority view favoring “excess” clauses over “escape” or “no liability” clauses in insurance policies. In that case the court stated that the majority rule is: When the owner of an automobile has a policy with an omnibus clause, and the additional insured also has a nonownership policy which provides that it shall only constitute excess coverage over and above other valid collectible insurance, the owners’ insurer has the primary liability. Under this rule the courts give no application to the other insurance clause in the primary policy, which provides that if the additional insured has other valid and collectible insurance he shall not be covered by the primary policy. (Page 430.)

The “escape” clause involved in the New Amsterdam case provided that if any person entitled to indemnification thereunder “is also covered by other valid and collectible insurance, such other person . . . shall not be indemnified under this policy.”

The essential difference in this “escape clause” and the “escape clause” in Hardware’s policy in the case now before us is the inclusion in Hardware’s clause after the words “other valid and collectible automobile liability insurance” the further qualifying words “either primary or excess” These words were not in the “escape” or “no liability” clause which was interpreted in the New Amsterdam case. This difference, we conclude, renders the holding in the New Amsterdam case inapplicable in the case now under consideration. The decision in this case is in no manner designed to reduce or avoid the application of the decision in the New Amsterdam case. Our decision is solely applicable to the cause before this court and is rendered necessary by these specific facts of the case and language of the endorsement to Hardware’s policy set forth above.

In Indiana Lumbermens Mut. Ins. Co. v. Mitchell, 285 F Supp 969 (1968) the District Court for the Eastern District of Illinois had before it an “escape” clause which included identical language to that used in Hardware’s policy including the words “either primary or excess.” The court held that because of the inclusion of the restrictive language in the clause before it which was not involved in the New Amsterdam case, the policies in the two cases, were distinguishable and New Amsterdam was not controlling. This decision was affirmed by the Circuit Court of Appeals for the 7th Circuit in 409 F2d 392, where the court stated that it was this specific inclusion of “excess” insurance within the meaning of “other valid and collectible insurance” which relieved Lumbermens of the obligation to defend in that case.

In 7 Am Jur2d, Automobile Insurance, § 202, the authors define five different situations in which conflicts between insurers are involved. The fifth of these situations is stated thus:

(5) Where a “no liability” clause expressly designates the type of insurance with which it might conflict.

The authors then state how the courts have dealt with the various situations and with reference to the fifth the following is stated:

“In the fifth situation . . . where the ‘no liability’ clause expressly provides that the insurance does not apply to any loss covered by other specified types of insurance, including the ‘excess insurance’ type ... it has been held that the insurance company whose policy so provides will be absolved from liability.”

The situation in the case under consideration falls within the provisions of the fifth situation set forth above. Hardware’s policy has specifically provided that its insurance does not apply when other types of insurance including “excess insurance” are available. Excess insurance is available to the driver Grant under the terms of his own policy issued by the plaintiff. Therefore the insurance provided by Hardware’s policy “never came to life.” Indiana Lumbermens Mut. Ins. Co. v. Mitchell, supra.

In interpreting “escape” or “no liability” clauses similar to that involved in our case the following cases in other jurisdictions have reached the same conclusion. United States Fidelity & Guaranty Co. v. Dixie Auto Ins. Co., 292 F Supp 554 (Ala 1968); Continental Cas. Co. v. Weekes (Fla), 74 So2d 367 (1954); Government Employees Ins. Co. v. Globe Indemnity Co. (Ky), 415 SW 2d 581 (1967), and Faltersack v. Vanden Boogaard, 39 Wis2d 64, 158 NW2d 322 (1968).

The plaintiff attempts to distinguish the Indiana Lumbermens Hut. Ins. Co. case from the one now before us by calling out attention to the fact that in Lumbermens the driver was operating the garage’s automobile as a “temporary substitute automobile” while his vehicle was being repaired, noting that the driver was operating

it for his own use and benefit. Whereas in the case before us the driver Grant was operating not a “temporary substitute automobile” but a “nonowned automobile” which he was test driving to determine if he wanted to purchase it. Plaintiff insists that the driver Grant was not driving this automobile for his own use or benefit but for an ultimate benefit that would inure to the owner. ,

We cannot accept this distinction. By the provisions of the driver Grant’s policy the plaintiff insurer agreed to pay all sums which Grant became obligated to pay as damages arising out of the use of the owned automo'bile or any nonowned automobile. The policy defines “owned automobile” as including “temporary substitute automobile.” The policy defines a “nonowned automobile” as an automobile not owned by or furnished for the regular use of either the named insured, other than a temporary substitute automobile. Grant’s policy provides that the insurance with respect to a temporary substitute automobile or nonowned automobile shall be excess insurance.

Whether Grant was operating a “nonowned automobile” as in this case or a “temporary substitute automobile” as in the Lumbermen’s case, in either event his insurer agreed to indemnify him from any liability. The provisions of the “other insurance” clause in his policy provides that in either event the insurance shall be “excess insurance.” Since the endorsement on the defendant Hardware’s policy includes within the term “person insured” any other person but only if no other valid and collectible automobile liability insurance, either primary or excess is available, then by virtue of the availability of excess insurance under Grant’s policy he could not be considered a “person insured” under the defendant’s policy by virtue of this specific exclusion, regardless of whether he was driving a temporary substitute automobile or a nonowned automobile and regardless of who derived the benefits from the operation of the vehicle.

We are not confronted with the question of who should more logically bear the loss. We are confronted with the task of interpreting the contracts of insurance and determining liability and responsibility thereunder. We must make this determination from the language used in the policies. Where the terms of an insurance policy are clear and unambiguous the court must give effect to the intent of the parties to the contract in accordance with the clear expression of agreement. McCann v. Continental Cas. Co., 8 Ill2d 476, 134 NE2d 302. The principles involved in the construction of the insurance contracts are the same as those involved in construing other contracts. The contracts must be interpreted according to the sense and meaning of the terms which the parties use. Jensen v. New Amsterdam Ins. Co., 65 Ill App2d 407, 213 NE2d 141. The language of the endorsement to Hardware’s policy evidences an intent to limit or restrict the coverage afforded under the original policy of insurance. The limitation or restriction relates to the persons who will be considered within the class of “any other person” as that term is used in the policy in relation to “persons insured.” The endorsement plainly states that “any other person” is not a “person insured” under the policy if valid and collectible excess automobile liability insurance is available to such person. The consideration for this limitation or restriction as to the coverage is, in the language of the endorsement, “in consideration for the reduced rate of premium.” Indiana Lumbermens Mut. Ins. Co. v. Mitchell, 409 F2d 392.

It is disturbing to this court and we are sure to policy owners, to be constantly confronted with policies each purporting to exclude liability when two or more policies are involved. In the battle of exclusionary clauses, each being designed and redesigned to avoid liability in light of the latest judicial interpretation, the court may well ultimately find that justice and equity demand that it hold that each policy be intended to cover the loss and that the resulting loss be prorated among the companies involved. In view of the particular facts before this court and the language involved in the policies herein, we do not feel justified in invoking such a doctrine in this case.

We do not feel that the provisions of the Illinois Financial Responsibility Act (Ill Rev Stats 1965, c 95%, § 7-301 et seq.) must be read into Hardware’s policy as plaintiff contends. Section 7-317 (b) 2 of the Act provides that an owner’s policy of liability insurance shall insure the person named therein and any other person using or responsible for the use of said motor vehicle with the express or implied permission of the insured. Plaintiff’s position finds support in American Motorists Ins. Co. v. Kaplan, 209 Va 53, 161 SE2d 359 (1968); Wildman v. Government Employees’ Ins. Co., 48 Cal2d 31, 307 P2d 359 (1957); Republic Indemnity Co. of America v. Employers Liability Assur. Corp., 267 Cal App2d 121, 72 Cal Rptr 718 (1968). Plaintiff also relies on Landis v. New Amsterdam Cas. Co., 347 Ill App 560, 107 NE2d 187 (1952) wherein the court read the omnibus clause of the Financial Responsibility Act into the policy of insurance which insured a truck involved in an accident while being driven by a person not covered by the policy.

However, since the decision in the Landis case, there have been several Illinois decisions to the contrary. In McCann v. Continental Cas. Co., 6 Ill App2d 527, 128 NE2d 624, the court distinguished the Landis case finding that in Landis the insured vehicle was a truck; that the insurance carrier had issued a certificate that the policy complied with section 16 of the Illinois Truck Act (Ill Rev Stats 1951, c 95 1/4, par 253); that this certificate was filed with the Secretary of State and that the policy was a compulsory or required policy under the provisions of the Truck Act. The court, while agreeing with the results reached in the Landis case, would not adopt the reasoning thereof and held that the general omnibus clause of the Financial Responsibility Act would not be read into the insurance policy there under consideration. The court noted that there is not a general statutory provision making insurance compulsory in all cases nor is there a statute in this state requiring an omnibus clause in every policy of insurance. It noted that there is in the Financial Responsibility Act a requirement of an omnibus clause in the policy insuring all drivers only when that policy is used as proof of financial responsibility under the Act. The court concluded that since the insured had not been required by any statutory provision to furnish proof of his financial responsibility, the general omnibus clause of the statute would not be read into the insured’s automobile liability insurance policy. The Supreme Court affirmed the decision of the Appellate Court in 8 Ill2d 476, 134 NE2d 302. The Supreme Court also held that the language of the policy making the insurance afforded comply with the provisions of Financial Responsibility Laws does not incorporate the provisions of the Financial Responsibility Act into the policy by reference until something transpires which requires that the insured furnish proof of his financial responsibility and the policy of insurance is certified for that purpose under the Act. The decision of the McCann case has been followed in Stollery Bros. v. Inter-Insurance Exchange, 15 Ill App2d 179, 145 NE2d 768.

Nothing has been presented to the court in this case that would indicate that owner HopMns (defendant’s insured) had by his previous conduct brought himself within the purview of the Financial Responsibility Act or that the policy of insurance in question had been certified as proof of financial responsibility. Therefore, the decision in McCann controls this case. We hold that the general omnibus clause of the Financial Responsibility Act has not been incorporated into the policy of insurance of the defendant.

An annotation on this subject including a discussion of decisions to the contrary in other jurisdictions is contained in 8 ALRSrd 388.

Summarizing, we hold:

(1) That the terms of the restrictive endorsement in Hardware’s policy will prevail over the excess insurance provision of plaintiff’s policy;

(2) That the fact that the driver was driving a non-owned automobile instead of a temporary substitute automobile is not a distinction of consequence so far as the questions involved in this case are concerned and;

(3) That the omnibus clause of the Financial Respon-

sibility Act will not be read into the contract of insurance nor will it be incorporated therein by reference by the language used in the policy.

Accordingly, the decision of the trial court is af-

firmed.

Affirmed.

STOUDER and ALLOY, JJ., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Gerald F. Wallace, Defendant-Appellant.
    Gen. No. 69-160. (Abstract of Decision.)
    Second District.
    March 2, 1970.
    Dixon, Devine, Ray & Morin, of Dixon, for appellant;
    Albert N. Kennedy, State’s Attorney, of Dixon, for appellee.
   Opinion by JUSTICE ABRAHAMSON. Not to be published in full.


author: MR. JUSTICE ABRAHAMSON

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Robert Kearn McGary, Defendant-Appellant.
    Gen. No. 69-173.
    Second District.
    March 2, 1970.

      Reid, Ochsenschlager, Murphy and Hupp, of Aurora, for appellant.
    William Ketcham, State’s Attorney, of Geneva, and W. Ben Morgan, Assistant State’s Attorney, of Elgin, for appellee.
   MR. JUSTICE ABRAHAMSON

delivered the opinion of the court.

The defendant was indicted for the unlawful sale of narcotic drugs by the grand jury of Kane County. Thereafter, the attorney for the defendant filed a motion with the trial court to order the prosecution to furnish a list of all prosecution witnesses and their last known addresses, including home addresses. The trial judge ruled that the state must furnish a list of all witnesses and their last known addresses but that they need not furnish the home addresses of such witnesses who were state narcotic agents. The order further found that “. . . an immediate appeal from this Order may materially advance the ultimate termination of this litigation and that the defendant may take an immediate appeal from this Order. . . .”

Under section 304 of the Supreme Court Rules (Ill Rev Stats 1967, c 110A, par 304) an appeal “may be taken from a final judgment as to one or more but fewer than all of the parties or claims only if the trial court has made an express written finding that there is no just reason for delaying enforcement or appeal.” However, not all civil appeals rules apply to criminal appeals.

Section 612 of the Supreme Court Rules (Ill Rev Stats 1967, c 110A, par 612) enumerates those civil appeals rules that are applicable to criminal appeals and Rule 304 is not among them.

For that reason we must conclude that the order of the trial court was not appealable despite the language contained therein and that this appeal should be dismissed.

Appeal dismissed.

DAVIS, P. J. and MORAN, J., concur.


text:
    Dr. Gary L. Phillips, S.T.D., for Himself and on Behalf of All Similarly Situated, Plaintiff-Appellant, v. Village of Libertyville, a Municipal Corporation of Lake County, Illinois, et al., etc., Defendants-Appellees.
    Gen. No. 69-175.
    Second District.
    March 2, 1970.

      Thomas H. Ploss, of Libertyville, for appellant.
    Overholser, Flannery & Dunlap, of Libertyville, for appellees.
   MR. JUSTICE ABRAHAMSON

delivered the opinion of the court.

This class action for a declaratory judgment of the constitutionality of the Libertyville Fair Housing Ordinance, filed by Dr. Gary L. Phillips oh behalf of himself and others similarly situated, was transferred to this court by the Supreme Court of Illinois. No constitutional issue was presented on plaintiff’s direct appeal to that court, since the trial court had declined to rule on alleged constitutional questions, but had dismissed the complaint on the grounds that plaintiff lacked standing to seek a declaratory judgment, and that there was no actual controversy between plaintiff and defendants. It is, therefore, incumbent upon this court, under the transfer order, to determine whether a justiciable controversy is presented under the Declaratory Judgment Act, and whether the plaintiff has the legal standing to seek relief.

The facts respecting these issues are essentially not in dispute. At the time the complaint was filed plaintiff, a member of the clergy, had been a resident and elector of the Village of Libertyville for seven years. He was, and still is, an apartment dweller, but not a property owner. Plaintiff had participated with other residents in urging passage of a fair housing law in Libertyville. Initially, on June 11, 1968, the Village Council passed a broker-licensing type of fair housing law, (No. 68-0-19), which was repealed on August 27, 1968, when the Village passed the more comprehensive fair housing ordinance involved herein.

Plaintiff challenges the constitutionality of the following provisions contained in that ordinance: The appointment of a Human Relations Commission composed only of property owners in Libertyville; the prohibition of discriminatory acts in connection with the sale, lease or showing of real property only “to any financially qualified person,” with no standards set for the determination of financial qualifications; the requirements of “specific intent” to violate the law, a $25 filing fee before any complaint of discrimination may be heard by the Commission, and the application of strict rules of evidence at any Commission hearing; and the designation of any “unfounded” complaint as a violation of the ordinance.

Plaintiff instituted this declaratory judgment action shortly after the ordinance was passed, and before the defendant Village Board appointed a Human Relations Commission. The circuit court denied all motions interposed by plaintiff. It denied a temporary restraining order to prevent the appointment of a Commission under this ordinance; denied an amendment to the complaint alleging the appointment of the Commission; denied joinder of members thereof as parties defendant; denied the intervention of Lake County Migrant Council; denied a preliminary injunction after an alleged verbal attack on plaintiff by a Village Board member at a public hearing.

The court, however, sustained defendants’ motion to strike a major portion of the complaint, including allegations relating to the legislative history of the Liberty-ville Fair Housing Ordinance, to plaintiff’s participation in securing its passage, and to the conduct of the defendant Board manifesting an intent to bar plaintiff from serving on the Commission. The circuit court then sustained defendants’ motion to dismiss the complaint. In its oral opinion the court indicated that no ruling was being made upon the merits, but that the action was dismissed because plaintiff did not have sufficient standing to bring an action under the Declaratory Judgment Act.

In reviewing that judgment pursuant to the transfer order of the Illinois Supreme Court, we note first that the Illinois Declaratory Judgment Act (c 110, par 57.1, Ill Rev Stats 1967) provides that “the court may in cases of actual controversy make binding declarations of rights, having the force of final judgments whether or not any consequential relief is or could be claimed . . . including the determination of . . . the construction of any . . . municipal ordinance . . . and a declaration of the rights of the parties interested.”

Defendants, while admitting that the Illinois Declaratory Judgment Act permits a declaratory judgment, “whether or not any consequential relief is or could be claimed,” promptly read that clause out of the Act. Defendants argue that because plaintiff cannot demand his immediate seating on the Libertyville Human Relations Commission as a consequence of this action, therefore plaintiff is requesting only an “advisory opinion” from this court, in violation of settled principles of law prohibiting such opinions.

We cannot accept defendants’ construction of the Act. In Exchange Nat. Bank of Chicago v. County of Cook, 6 Ill2d 419, 421, 422, 129 NE2d 1, it was held that the Illinois Declaratory Judgment Act does not authorize the declaration of rights involving mere abstract propositions of law without regard to the interest of the parties, but requires the existence of an “actual controversy,” as distinguished from, an opinion advising what the law would be upon a hypothetical state of facts. In explaining an “actual controversy” the court quoted at p 422:

‘Where there is such a concrete case admitting of an immediate and definitive determination of the legal rights of the parties in an adversary proceeding upon the facts alleged, the judicial function may be appropriately exercised even though the adjudication of the rights of the litigants may not require the award of process or the payment of damages.”

Applying that criteria to the case here, it is evident that plaintiff and members of his class are electors who are presently disqualified by the Libertyville ordinonce from ever serving on the village Human Relations Commission simply because they are not property owners. They argue that such ordinance deprives them of constitutional rights and is invalid. Their interests are certainly adverse to those of the defendant Village Board which insists that the ordinance is constitutional and that the Board has a right to permit only property owners to be members of the Human Relations Commission in order to effectuate the Board’s conception of fair housing. An adjudication of unconstitutionality, while it would not insure plaintiff an appointment on the Commission, would permit plaintiff and members of his class to be eligible for service on the Human Relations Commission, along with other electors. They would no longer be automatically barred as they are now, and as defendants claim they should be. In our judgment this case admits of “an immediate and definitive determination of legal rights of the parties in an adversary proceeding” and, therefore warrants application of the Declaratory Judgment Act. Our conclusion, moreover, is supported by precedent.

Analogy may be made to Otley v. Common Council of the City of Milwaukee, 281 F Supp 264 (USDC Wis 1968). There the declaratory judgment procedure was deemed proper to determine the constitutionality of a City Council resolution, which, if passed by the voters, would have prevented enactment of a fair housing ordinance. As in the case before us, the defendant city argued there, that there was no controversy between adverse parties. In rejecting that contention the court stated at p 274:

“A controversy undoubtedly exists . . . between the plaintiff and his class and those who seek to deprive them of the right to equal protection of laws. The Common Council is involved in this deprivation, and it is clear from the record it will continue to be involved adversely should the resolution pass, by refusing to consider action in contravention of its terms. ...”

In Otiey the decision declaring the City Council resolution unconstitutional does not insure enactment of a fair housing law any more than a decision holding the property ownership requirement in the Libertyville ordinance unconstitutional insures plaintiff an appointment on the Commission. However, in both cases the declaration of the unconstitutionality of the laws determine adverse rights of the parties, and eliminate what one side regards as an unconstitutional barrier. Those results are neither hypothetical, nor advisory; and if a declaratory judgment was properly available in Otiey, it should certainly be available in the case before us.

The Illinois Supreme Court recently in Thompson v. Conti, 39 Ill2d 160, 233 NE2d 351, entered a declaratory judgment at the instance of certain electors of a township who sought to have their town meeting declared void because it was conducted in a manner that deprived them of constitutionally guaranteed political rights. There plaintiffs received no more “consequential relief” than would plaintiff herein, nevertheless, the court found a sufficient justiciable controversy to warrant a declaratory judgment.

We find determinative the decision of the United States Supreme Court in Moore v. Ogilvie, 89 S Ct 1493. There candidates for public office brought suit for a declaratory judgment on the constitutionality of an Illinois statute requiring statewide signatures on nominating petitions. Although the election was over, and a decision there, as in the case before us, would in no way insure plaintiffs the right to public office, the United States Supreme Court held that the case presented a justiciable controversy for which relief could be had under the Illinois Declaratory Judgment law. The Supreme Court stated:

“Appellees urged in a motion to dismiss that since the November 5, 1968 election has been held, there is no possibility of granting any relief to appellants, and that this appeal should be dismissed. But while the 1968 election is over, the burden which MacDougall v. Green, supra, allowed to be placed on the nomination of nominees for statewide offices remains and controls future elections, as long as Illinois maintains her present system as she has done since 1935. The problem is therefore ‘capable of repetition, yet evading review.8 Southern Pae. Term. Co. v. Interstate Commerce Comm., 219 US 498. The need for its resolution thus reflects a continuing controversy. . . . We turn then to the merits.”

In the case before us the Libertyville ordinance also presents a continuing controversy in that it excludes from the Human Relations Commission all persons, including plaintiff, who are not property owners. The electors in plaintiff’s class, deprived of an opportunity of even being considered for the office, would continue to claim that this exclusion creates an unreasonable classification, inviting discrimination in housing in violation of the Equal Protection Clause. Unless the issue can be resolved by a declaratory judgment the problem would also foe “capable of repetition, but evading review.” Therefore, the reasoning of the United States Supreme Court in the Moore case is equally applicable here, and defendants’ contention that no “actual controversy exists” must be rejected.

The cogency of the Moore case is in no way limited by the decision of the United States Supreme Court in Hall v. Beale, 90 S Ct 200, as defendants contend. In Hall plaintiff challenged in a declaratory judgment proceeding the constitutionality of certain residency requirements for voting. After the election, and prior to a hearing, the law was changed, reducing the residency requirements from six to two months. Under the amended law plaintiff there would not have been barred from voting either at the time of the election, or at the time he instituted suit, and was in no way affected by the two month residency requirement. Consequently, the court held that the constitutionality of the residency requirements was entirely “advisory” with respect to plaintiff, and stated at p 201:

“And under the statute as currently written, the appellants could have voted in the ’68 presidential election. The case has therefore lost its character as a present live controversy of the kind that must exist if we are to avoid advisory opinions on abstract propositions of law. (Citation.) . . . But the appellants’ opposition to residency requirements in general cannot alter the fact that so far as they are concerned nothing in the Colorado legislative scheme as now written adversely affects their present interests, or their interests at the time the litigation was commenced.”

In the case before this court there has been no intervening change in the law. Quite the contrary, the letter attached to the supplemental pleadings indicates that the Libertyville Board has no intention of eliminating the requirement that members of the Human Relations Commission must be property owners. Therefore, plaintiff and members of his class will continue to be automatically barred from the Commission and deprived of what they regard as their constitutional right as electors. An opinion here, unlike Hall, would certainly not be advisory.

Nor do we find support for defendants’ argument in any other cases cited by them. State Farm Mut. Automobile Ins. Co. v. Morris, 29 Ill App2d 451, 173 NE2d 590, advancing a restrictive construction of the Declaratory Judgment Act, has neither been adhered to, nor represents the weight of authority on this issue. Apex Mut. Ins. Co. v. Christner, 99 Ill App2d 153, 173, 240 NE2d 742; Lincoln Cas. Co. v. Vic & Marios, Inc., 62 Ill App2d 262, 210 NE2d 329; County Mut. Ins. Co. v. Bergman, 38 Ill App2d 268, 185 NE2d 513.

Closely related and inextricably connected with the requirement for an “actual controversy” under the Declaratory Judgment Act is the issue of plaintiff’s “standing” to present that controversy. We are cognizant of the established principle that the court will not consider the invalidity of any provision where the party urging such invalidity is not aggrieved by its operation. Hornoff v. The Kroger Co., 35 Ill2d 125, 129, 219 NE2d 512; People ex rel. Director of Department of Children and Family Services of Illinois v. Illinois Protestant Children’s Home, Inc., 33 Ill2d 60, 64, 210 NE2d 217.

As defined in Baker v. Carr, 369 US 186, 204, “standing” is “such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions.”

In Flast v. Cohen, 392 US 83, 101-102, the Supreme Court explained that the various rules of standing have not been developed in the abstract, but have been fashioned with “specific reference to the status asserted by the party whose standing is challenged, and to the type of question to be adjudicated.”

In this case the pleadings reveal plaintiff’s “standing” to challenge the property ownership requirement and other provisions of the Libertyville Fair Housing Ordinance. As previously noted, plaintiff as an elector and resident of Libertyville for over seven years obviously would have been eligible under the Illinois Constitution and statutes to hold public office on the Human Relations Commission were it not for the provision of the ordinance specifying that Commission members must be property owners. Plaintiff and members of his class, who were all renters and not property owners, were automatically barred from consideration with other electors for appointment to the Commission. Persons cannot be barred from holding public office by criteria forbidden by the Constitution. Torcaso v. Watkins, 367 US 488, 496. Consequently, plaintiff, as a member of the excluded class had a constitutional right to vindication here, and a personal stake in the outcome of this controversy. Baker v. Carr, 369 US 186, 204. (See also 35 U Chi L Rev 601.)

We find apposite the statement in Kelley v. Metropolitan Board of Education, 293 F Supp 485, 491 (USDC Md 1968) respecting the issue of “standing”:

“The court would be hard pressed to conceive of more appropriate parties to complain because of the suspension, or of persons more directly, adversely and personally affected.”

Moreover, we are also cognizant that plaintiff’s “standing” was further enhanced by the original allegations in the complaint pertaining to the legislative history of the ordinance, to plaintiff’s role in its enactment, and to the possible intention of the defendant Board to bar him from serving on the Commission. All of those allegations, included in the original complaint, were stricken as irrelevant by the circuit court. The relevancy of legislative history and circumstances of enactment in determining the construction and validity of laws is well established. City of Chicago v. Max, 289 Ill 372, 124 NE 648; Chicago Real Estate Board v. City of Chicago, 36 Ill2d 530, 224 NE2d 793. Moreover, where the equal protection clause is the basis of the action, as in the case here, the United States Supreme Court has held that discrimination must be shown by facts alleged in the complaint. Snowden v. Hughes, 321 US 1, 10. Notwithstanding these rules of law, the trial court struck all such allegations from the complaint, and then concluded that plaintiff had no “standing” to bring the action; This was error. All of such alleged facts were relevant in determining realistically rather than abstractly, the issue of plaintiff’s standing to challenge the property ownership requirement for Commission members as well as all those other sections affecting redress under the Libertyville Fair Housing Ordinance.

Under our analysis of the issues involved in this transferred appeal, the judgment of the circuit court dismissing plaintiff’s complaint was contrary to law, and the cause is reversed and remanded with directions to reinstate the complaint and consider the merits of the constitutional issues presented therein.

Judgment reversed and remanded with directions.

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


author: MR. PRESIDING JUSTICE DAVIS

text:
    Village of Algonquin, Plaintiff-Appellee, v. Robert H. Berg, Defendant-Appellant.
    Gen. No. 69-75.
    Second District.
    March 5, 1970.
    Robert H. Berg, of Elmhurst, for appellant.
    Richard R. Zukowski, of Crystal Lake, for appellee.
   MR. PRESIDING JUSTICE DAVIS

delivered the opinion of the court.

After a full examination of the record in this case, we find that the notice of appeal was filed in adequate time, and that we have jurisdiction herein.

The determinative issue in this case is whether the trial court had authority to assess the penalty against the defendant, after the jury had found him guilty of the violation of a municipal ordinance.

A prosecution for the violation of such ordinance and to recover a fine or penalty therefor, while quasi-criminal in nature, is civil in form, and is tried and reviewed as a civil proceeding. Consequently, the jury alone could determine the amount of the penalty in this case. (City of Highland Park v. Curtis, 83 Ill App2d 218, 228, 229, 226 NE2d 870 (1967).) Thus, the judgment must be reversed and the cause remanded for a new trial.

Reversed and remanded with directions.

ABRAHAMSON and SEIDENFELD, JJ., concur.


text:
    Orval L. Brantley, Administrator of the Estate of Larry Brantley, Deceased, Plaintiff-Appellant, v. The Delnor Hospital, Inc., a Corporation, and John L. Rogers and D. Giedraitis, Defendants-Appellees.
    Gen. No. 69-129.
    Second District.
    March 5, 1970.

      Arnold and Kadjan, of Chicago, for appellant.
    Corrigan, Mackay, Quetsch and O’Reilly, of Wheaton, and Alschuler, Putnam, McWethy, Weiss and Weiler, of Aurora, for appellees.
   MR. PRESIDING JUSTICE DAVIS

delivered the opinion of the court.

At issue in this case is whether the trial court abused its discretion in denying two motions filed by the plaintiff seeking the vacation of the order of dismissal entered April 25,1969.

The complaint was filed December 22, 1965. The defendant, The Delnor Hospital, Inc., filed a motion to strike the complaint on January 20, 1966, and the defendant, John L. Rogers, filed an answer thereto on January 21, 1966, which answer contained a motion to strike Count IV of the complaint and to strike parts of Count III. The defendant, D. Giedraitis, likewise filed an answer wherein he moved to strike Count V and to strike parts of Count III.

The record indicates that on February 9, 1966, the court disposed of the aforesaid motions, and The Del-nor Hospital, Inc., was ruled to answer or otherwise plead on or before March 14, 1966. It filed an answer to the complaint on November 1,1966.

On April 25, 1969, the trial court entered the following order:

“A general call of the docket being held under Rule Four (4) of the Circuit Court for the 16th Judicial Circuit, Kane County, Illinois, pursuant to Order of Court, and it appearing that all Attorneys of Record have received due notice of said call, and the Court having heard statements of said attorneys in open Court and being fully advised as to the premises;
“And the Court finding further that no just reason has been offered why the above captioned cause should not be dismissed from the general docket for lack of prosecution;
“NOW THEREFORE, IT IS ORDERED AND ADJUDGED that the above captioned case be dismissed.
“ENTER, this 25th day of April, A. D. 1969.” (Emphasis ours.)

On May 7, 1969, the plaintiff filed a motion to vacate this order and recited therein that the case came on for hearing at a general call of the docket on April 25, at which time the attorneys for the plaintiff were on trial in the Circuit Court of Cook County; that the plaintiff has a meritorious cause of action; that the only reason the attorneys for the plaintiff did not answer the docket call was that they were then on trial in the Circuit Court of Cook County; and that the cause was dismissed for want of prosecution. This motion was denied on May 7,1969.

Thereafter, on May 22, 1969, the plaintiff filed a further motion to vacate the order of dismissal, which contained the allegations of the prior motion and further stated:

“That Administrative Rule 4 of this Court provides as follows:
“On the last Fridays in the months of April and October in each year of this Court there shall be a general call of the Docket, both law and chancery on which call all cases remaining thereon, in which positive action has not been taken and no attempt made for trial or final disposition of the same during one year next preceding such call, may be dismissed at the cost of the plaintiffs, with leave to reinstate on sufficient cause shown within 90 days.
“That Court Rule 6.1 provides inter alla as follows:
“ ‘In cases where a certificate of readiness has not been filed within one year after the filing of the complaint, the Court may order such case dismissed for want of prosecution with leave to reinstate by filing a certificate of readiness within thirty days or such other period as the Court may designate in its order.’ ”

A certificate of readiness was apparently filed by the plaintiff on May 22, 1969, along with its motion to vacate.

Upon appeal, the plaintiff contends that the trial court abused its discretion in refusing to vacate the order dismissing the complaint, and specifically notes that the motions were both filed within thirty days after the entry of the order. He also urges that he fully complied with the administrative rules of the Circuit Court of Kane County relative to the procedure to reinstate cases dismissed thereunder. The administrative court rules under consideration are heretofore set forth.

The defendants urge that the plaintiff’s motions failed to state sufficient cause for the reinstatement of the case. These respective motions set forth that the reason the plaintiff’s attorneys were unable to answer the court docket call on April 25th was that they were on trial in the Circuit Court of Cook County. The defendants contend, and we agree, that this statement explains why they did not attend the docket call, but it totally fails to assert any sufficient cause why they had done nothing in the prosecution of this cause during one year next preceding this call. The dismissal order was entered on a call of the inactive cases before the court, pursuant to Rule 4, and after due notice to all attorneys of record.

We believe that the trial court properly exercised its discretion in refusing to vacate the order of dismissal in that no sufficient cause was shown by the plaintiff for his failure to take any positive action in the cause during the year preceding the dismissal.

Rule 4 provides that the court “may” order dismissal with leave to reinstate. The authority to dismiss the action, with leave to reinstate for sufficient cause, was within the discretion of the court. If sufficient cause for reinstatement was not shown, the cause would be dismissed without leave to reinstate. Such was the circumstance in the case at bar. Casillas v. Rosengren, 86 Ill App2d 139, 143, 229 NE2d 141 (1967).

The plaintiff’s motion which was filed May 22, 1969, recites that on May 20, 1969, the plaintiff filed a certificate of readiness in the cause; that by the filing of this certificate, he did everything possible to comply with the rules, and that under Rule 6.1 his motion should have been granted. However, the record is clear that the dismissal was pursuant to Rule 4, which permits reinstatement only upon, a showing of sufficient cause. After dismissal pursuant to Rule 4, the plaintiff could not then proceed under Rule 6.1 without first obtaining a vacation of the order of dismissal by showing sufficient cause. This was not done.

No reason for the inaction which caused the dismissal of the case under Rule 4 was shown by the second motion to vacate, or by the certificate of readiness. The second motion offered no new or additional reasons beyond those stated in the first motion for vacating the order of dismissal.

Neither the facts in this case, nor the applicable law, indicate an abuse of discretion by the trial court. Administrative Rules, vesting authority in the trial court to dismiss actions because of the failure of the litigants to diligently proceed therein, are necessary in order to prevent undue delay in the disposition of pending cases, and to relieve court calendars of dormant litigation. The court’s power in this respect is of ancient origin. Link v. Wabash R. Co., 370 US 626, 629, 8 L Ed 734, 737-739 incl. (1962).

In Robertson v. Western Bearings Co., 50 Ill App2d 173, 200 NE2d 48 (1964), at page 178, the court stated, in quoting from Link v. Wabash R. Co., 291 F2d 542 (7th Cir) (1962), at page 546:

“Courts may exercise their inherent powers and invoke dismissal as a sanction in situations involving disregard by parties of orders, rules or settings. . . . ‘Every litigant has the duty to comply with the reasonable orders of the court and, if such compliance is not forthcoming, the court has the power to apply the penalty of dismissal.’ ”

In Deardorff v. Decatur and Macon County Hospital Ass’n, 111 Ill App2d 384, 250 NE2d 313 (1969), at page 390, the court, under facts generally similar to those in the case at bar stated:

“The desirability of resolving lawsuits by a trial on the merits is not aided where either a plaintiff or a defendant, as the case may be, does not show reasonable diligence in bringing about that result. The right to a trial on the merits or to present a defense means the utilization by a party of that right within a reasonable time. The goal of a trial on the merits is not achieved by soporific inactivity. We cannot say in this record that the trial court abused his discretion in dismissing this suit and we, therefore, must affirm the judgment. It is so ordered.”

In Davies v. Infragnia, 54 Ill App2d 299, 203 NE2d 725 (1964), at page 306, the court aptly stated:

“Therefore, we conclude that in order to maintain a steady flow of cases into trial courts we must support the rules and regulations the purpose of which is expeditious assignment and disposition of the vast number of cases in our courts. Continuances and delays without good cause or sufficient excuse interrupt orderly procedures and throw the entire system out of balance to the detriment of other cases awaiting trial.
“The order of dismissal and the order denying plaintiff’s motion to vacate the dismissal are affirmed.”

We prefer to decide cases on their merits, and seek to avoid determinations based on procedural or rule violations or omissions. However, flagrant and continued infringements of procedures and rules cannot be tolerated, and may justify our affirmance of the trial court’s dismissal of the action for want of prosecution, without hearing the case on its merits.

We also note herein that the certificate of readiness was not included in either the praecipe for record or in the transcript of the record, which was filed in this court on August 1, 1969, but did appear at page 7 of the excerpts from the record. There is no authority for including the certificate in the excerpts in that it did not appear in the record. Consequently, the filing of the certificate of readiness should not be considered on this appeal. Supreme Court Rules 321, 323, 342(g). (Ill Rev Stats 1967, c 110A, pars 321, 323, 342(g).) Under these circumstances, we are not required, on review, to consider the effect of filing a certificate of readiness or the application of Rule 6.1.

We further note that the record contained no report of proceedings at the trial, yet the excerpts, at pages 12 and 13, purport to set forth a conversation between the court, counsel for the plaintiff, and for a certain defendant, which ostensibly took place at the time of the May 7th hearing on the plaintiff’s motion. This conversation, likewise, was improperly placed in the excerpts and cannot be considered on review. Miller v. Miller, 94 Ill App2d 138, 141, 142, 236 NE2d 321 (1968).

We take judicial notice of our own records in this case. It reflects six violations of the Supreme Court Rules in the processing of this appeal. Under the circumstances of this case, the plaintiff, who has cavalierly disregarded the administrative rules of the trial court and the procedural rules of the Supreme Court in connection with this appeal, cannot rightly complain that by the “onerous imposition of a rule of court on litigants the ends of justice are thwarted.”

The order of the trial court is affirmed.

Order affirmed.

ABRAHAMSON and MORAN, JJ., concur.


author: STOUDER, P. J.

text:
    Donald J. Watson and Louie O. Watson, Plaintiffs-Appellees, v. Lowes J. Taylor, Defendant-Appellant.
    Gen. No. 69-37.
    Third District.
    March 10, 1970.
    Harold H. Kuhfuss, of Pekin, for appellant.
    Westervelt, Johnson, Nicoll & Keller, of Peoria, for appellees.
   STOUDER, P. J.

Plaintiffs Donald Watson and Louis Watson, automobile driver and passenger respectively, were injured when the automobile collided with one owned and operated by William Mammen. Plaintiffs brought this action against Lowes Taylor, a passenger in the Mammen automobile, alleging that Mammen was the agent of Taylor and hence Mammen’s negligence was imputed to Taylor. In a trial before the court sitting without a jury, the court found in favor of each plaintiff, assessing damages in the amounts of $747.63 and $200.

In this appeal defendant Taylor’s sole assignment of error is that as a matter of law Mammen was not his agent and any judgment based thereon is erroneous.

The facts are undisputed. On February 19, 1968, defendant Taylor had requested that his wife pick him up after work. Being unable to do so she requested Mam-men, defendant’s brother-in-law, to do so. Mammen, in his own car, picked up Taylor after work and the collision occurred on the way to Taylor’s home. This action was commenced against Taylor because Mammen was apparently uninsured. For the purposes of this appeal it is assumed that Mammen was negligent and the only question presented is whether such negligence is imputable to defendant Taylor.

As a general rule, an injured party must seek his redress from the person who caused the injury. A recognized exception to the general rule is applicable where the person causing the injury is an agent or servant in which event his misconduct may be imputed to the principal or master. Darner v. Colby, 375 Ill 558, 31 NE2d 950.

The parties are in general agreement concern-. ing the aforementioned general rule and exception but disagree as to whether there is evidence from which Mammen can be deemed the agent of Taylor. In Bridgewater v. Wagoner, 28 Ill App2d 201, 170 NE2d 785, the plaintiff and two others formed a car pool in which each alternately drove to the place of business where they each worked. Plaintiff, a passenger, was injured when the automobile in which he was riding collided with one operated by defendant. Defendant claimed that the plaintiff and the owner-operator of the car in which the plaintiff was a passenger were engaged in a joint enterprise or the owner-operator was the agent of the plaintiff passenger and therefore the negligence of the owner-operator should be imputed to the plaintiff passenger. The court concluded that as a matter of law there was no evidence from which such relationship could be inferred. The court stated, “The Illinois authorities lay down the rule that the driver’s negligence should not be imputed to the passenger unless the driver and passenger are engaged in a joint or common business enterprise and the passenger has some control or some right to control the operation of the automobile, and the right of control is stressed by the authorities generally.” We believe that the Bridgewater case is controlling in the instant case and that evidence is lacking from which it may be inferred that Mam-men was Taylor’s agent.

Indeed, the plaintiffs do not dispute the authority of the Bridgewater case but rather argue that another line of cases ought to be applied. They rely on Smoot v. Hollingsworth, 265 Ill App 447, Whipkey v. Ashbaugh, 267 Ill App 452, Gates v. Mader, 316 Ill 313, 147 NE 241 and Kovell v. North Boseland Motor Sales, 275 Ill App 566. We have no disagreement with such cases but they are not applicable to the facts at bar. In each of the foregoing cases a member of the family, i. e., wife or child, was held to be the agent of the father and owner of the motor vehicle involved and negligence of the member of the family was imputed to the father as principal. The basis of the relationship of principal and agent is intimately related to the family relationship and whether dependent upon the family purpose doctrine or not such cases do not appear to have any application when the family relationship is not involved.

For the foregoing reasons the judgments of the Circuit Court of Tazewell County are reversed.

Judgments reversed.

RYAN and ALLOY, JJ., concur.