author: MR. JUSTICE ENGLISH

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Edward J. Mirmelli, Defendant-Appellant.
    Gen. No. 51,517.
    First District, Fourth Division.
    September 23, 1970.

      John P. Coghlan, of Chicago, for appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane, James R. Truschke, Thomas J. Immel, and Patrick T. Driscoll, Jr., Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE ENGLISH

delivered the opinion of the court.

OFFENSE CHARGED

Abortion. Ill Rev Stats 1963, c 38, § 23-1.

JUDGMENT

After a jury trial, defendant was found guilty and sentenced to a term of 1 to 5 years.

CONTENTIONS RAISED ON APPEAL

1. Defendant was deprived of a fair trial for the following reasons:

(a) He was prejudiced by the State’s Attorney’s reference in the State’s opening statement to defendant’s alleged confession, and by other improper conduct of the State’s Attorney;
(b) He was prejudiced because six jurors read a newspaper article relating to defendant’s alleged confession;
(c) Improper reference was made to a large sum of money in defendant’s possession at the time of his arrest;
(d) A physician improperly testified that, in his opinion, an abortion had been performed;
(e) The State attempted to explain the absence of a crucial witness;
(f) The State improperly advised the jury of sepparate indictments pending against defendant.

2. Defendant was prejudiced by the improper admission into evidence, and submission to the jury during deliberation, of certain medical instruments.

3. The jury was erroneously instructed with respect to defendant’s credibility as a witness.

Although defendant has not questioned the sufficiency of the evidence, we believe that a summary of the facts is necessary to understand defendant’s contentions. A hearing was held on defendant’s motion to suppress confessions and statements, which testimony will not be summarized, but pertinent parts of that testimony will be mentioned in the body of this opinion.

EVIDENCE

At the hearing on defendant’s motion to suppress

The principal witness for the State at the pretrial hearing was Allen Engerman, an Assistant State’s Attorney. Part of his testimony follows: He was present with police officers at the time of defendant’s arrest. He said that they were to enter the building on a signal by radio carried in the purse of the complaining witness. This they did, and the witness then had a conversation with defendant in the latter’s office. He asked defendant if they could search the premises, and defendant replied, “I don’t care. My life is ruined. I feel so ashamed of what I’ve done. How will I ever explain this to my family? I deserve to be punished. Here are the keys. Go ahead, search wherever you want. I feel ashamed for what I have done.”

At the trial

The principal trial witnesses were Phyllis Lundie Graver (who allegedly was aborted by defendant) and Dr. Raymond McDermott (who examined her) for the State, and defendant on his own behalf.

Testimony of Mrs. Gruver:

On August 10, 1963, she was ummarried and had occasion to visit defendant in his office for twenty minutes. She told him that she had been sent by Ralph Fowler. When defendant replied that he did not know Fowler, she said that he must be aware who he is and that Fowler told her to be present at noon on that day in defendant’s office. After inquiring as to her last menstrual period, defendant conducted an examination, and told her to have Fowler call him the next morning. She next saw defendant on August 14. Fowler drove her to defendant’s office at 8:00 a. m., and she entered alone. Defendant took her to a small examining room and gave her two injections to induce a sleepy condition. He asked if she had the money. She handed him a yellow envelope and said, “$450, is that right?” He shook his head and, after she said that this was her understanding, he put the envelope in his back pocket. She then testified to the details of the abortion performed by defendant, including her observing certain medical instruments, curettes and a speculum, being used in the operation. At the conclusion of the operation, she entered defendant’s private office, where Fowler was talking to defendant. Defendant handed Fowler a prescription for a pill to be taken four times a day. She and Fowler left defendant’s office and were headed home when stopped by a policeman. She was then taken to Illinois Masonic Hospital and examined by Dr. Raymond McDermott.

The witness is a registered nurse, having received two years and seven months’ training at Passavant Memorial Hospital. She was employed at Passavant for one and a half years and then at the University of Chicago Clinic for ten months before returning to Passavant, where she is currently employed. Part of her training and experience had concerned the treatment of women who had been aborted.

Testimony of Dr. McDermott:

He is an obstetrician and gynecologist. He examined Mrs. Gruver on August 14, 1963, and found that a gauze packing had been inserted into her vaginal orifice, that her uterus was enlarged, indicating a four-to-six-week pregnancy, and that the cervix contained a round puncture wound some three to six hours old. He indicated that the condition could be caused by only one thing— abortion — which was his diagnostic impression.

Testimony of defendant:

He was acquainted with Ralph Fowler and had seen him ten times professionally between January, 1962 and August, 1963. He saw Fowler and Mrs. Gruver on Sunday, August 11, 1963, at 3:00 p. m. Fowler had called him around noon on that day, stating that the matter was urgent. Fowler said that Mrs. Gruver was going to marry his wife’s brother and she thought she was pregnant, but desired an examination to be certain. Defendant performed the examination and told her it appeared that she was pregnant, but the only way to be positive would be to take a “rabbit pregnancy test.” As she was getting dressed, she asked him if he would perform an abortion. Defendant advised her that he was “not in this business.” He tried to convince her to marry the father of the child, but she persisted in requesting an abortion and walked out of the examining room. He overheard her say to Fowler, “It looks like I was right, but he won’t do it.” Fowler then asked defendant if he could recommend anyone and defendant reiterated his objection to this request.

Defendant next saw Fowler and Mrs. Gruver on August 14, between 8:15 and 8:30 a. m., after Fowler had called him at 7:45 a. m. stating that it was urgent. They informed defendant that Mrs. Gruver had had an abortion the previous day and was suffering harmful side effects. Defendant told her to contact her own doctor, and she left, disgusted and disappointed.

Fourteen witnesses testified on defendant’s behalf that his general reputation in the community was very good and that he was an honorable member of the medical profession and a law-abiding citizen.

OPINION

Defendant urges that he was deprived of a fair trial because the State, on several occasions, elicited or divulged evidence that substantially prejudiced defendant in the eyes of the jury. His first contention in this respect concerns a remark made by the Assistant State’s Attorney in his opening statement. He was describing the circumstances surrounding defendant’s arrest when he stated:

“The arrest was effected by State’s Attorney’s police. Assistant State’s Attorney Engerman was present at the time the arrest was made. After the defendant was arrested and while in his office, he orally admitted to Assistant State’s Attorney Engerman the fact that he did perform an abortion.”

Defense counsel’s objection was sustained after a lengthy discussion in chambers to determine the propriety of this statement, but defendant’s motion for a mistrial was denied. Mention was made of the prior hearing on defendant’s motion to suppress “the statement, admission, confession and declarations” made by him on or about August 14, 1963. The judge who had presided at that hearing (Charles Barrett) was not the presiding judge at the trial. At the conclusion of the pretrial hearing, the court referred to the fact that defendant had engaged in various conversations at and after the time of his arrest; that at about 3:00 p. m., in the office of the State’s Attorney, he requested an opportunity to talk to his counsel ; and that thereafter he made a confession which was reduced to writing. The court then announced that the written confession would be suppressed, but continued with the following ruling:

But I find nothing in this Escobedo case (Escobedo v. Illinois, 378 US 478) that would prevent the testimony of individuals who happened to be on the scene and had conversations with the defendant. So the written confession will be suppressed. And the Court will rule, as the case is tried — and I assume it will be by this Court — on the matter of oral statements by the defendant in the course of the arrest and immediately following the arrest up to the hour of 3:00 p. m. in the afternoon.

Whereupon, defense counsel stated, “I take it that I take the words of the Court, that the Court feels — I interpret him literally — if and when those questions, namely, as to the oral declarations of the accused, proceeding to take the testimony, and upon proper motion taken before the Court, the Court will give the motion the calm deliberate consideration so typical of the Court, I presume.”

At trial, Judge Healy reviewed the evidence introduced at the pretrial hearing and stated that he interpreted Judge Barrett’s ruling as having suppressed not only the written confession taken at the State’s Attorney’s office, but also all oral statements or admissions made prior thereto at the time of arrest. Following Dr. McDermott’s testimony, the Assistant State’s Attorney advised the court, out of the jury’s presence, that he was going to call a witness to testify to oral declarations and admissions made by defendant immediately following his arrest. The judge stated that he was required to follow the prior order of Judge Barrett that the “confession was suppressed.” Defense counsel then offered the comment that the State’s witness about to be called was Allen Engerman and that his name was not included in the list of witnesses furnished by the State. The State advised the court that defense counsel had been informed several times over a period of a year and a half that Engerman would be called as a witness and that Engerman had, in fact, testified at the hearing on defendant’s motion to suppress. The judge ruled that Engerman was not to be put on the stand as a witness at that time.

The jury was brought in and the Assistant State’s Attorney called Engerman to testify. The judge immediately ruled again that Engerman was not to be called. The Assistant State’s Attorney then stated, “Are you suppressing one that was there at the time of the arrest?” The remark was stricken upon defense counsel’s objection. At this point, the prosecutor was granted a five-minute recess to go downstairs and get “another witness.” Edward King, a police officer assigned to the State’s Attorney’s office, then took the stand. The prosecutor attempted to elicit evidence concerning the conversation that took place between Engerman and defendant at the time of the arrest. This line of questioning was twice objected to, and the objections were sustained. The same topic was pursued during the questioning of Officer Dwyer, another State’s Attorney’s policeman present at the time of the arrest, and objection also was sustained. When defendant took the stand, the prosecutor, on several occasions, mentioned the police officers who were present during the arrest. Objections to this cross-examination were also sustained.

Defendant urges that the cumulative effect of these attempts by the State’s Attorney to bring defendant’s alleged confession to the jury’s attention was to deprive defendant of a fair trial. At the trial, Judge Healy said he considered himself bound by Judge Barrett’s pretrial ruling, his interpretation of which was that all testimony of Engerman concerning statements by defendant had been suppressed, but we note that the admissibility of oral statements of defendant at the time of arrest was not passed upon by Judge Barrett on the motion to suppress. This fact is made clear in that judge’s ruling quoted above. The State’s Attorney therefore, at the time of his opening statement, had no good reason to believe that testimony about defendant’s oral statements would not be admissible. Thereafter, no witness or prosecutor mentioned that defendant had confessed, even though the questioning concerned the details of the arrest. Also, the court ordered the jury to disregard the direct reference, and instructed them that an attorney’s comments were not to be considered as evidence. We do not believe that defendant has shown prejudice sufficient to warrant a new trial. See People v. Martin, 376 Ill 569, 571, 34 NE2d 845.

Likewise, even though the prosecutor’s action in calling Engerman to the witness stand was in violation of the court’s direction, we do not believe defendant was prejudiced. His comment, “Are you suppressing one that was there at the time of the arrest?” is not construed by us, as defendant urges, as a direct reference to an alleged oral confession. We believe that the statement related to suppression of the witness’ testimony about the circumstances of the arrest and not necessarily to any confession. Further, the judge ordered that the remark be stricken and directed the jury to disregard it.

Defendant contends that a newspaper article, which appeared on the final day of trial and was read by six jurors, deprived defendant of a fair trial because it described the events which occurred when the prosecutor called Engerman to the stand, citing Sheppard v. Maxwell, 384 US 333, 362, and People v. Cain, 36 Ill2d 589, 224 NE2d 786. The article stated that “Judge Healy had upheld a defense motion . . . that [Engerman] . . . was a surprise witness and should not be permitted to testify.” The article further described the court’s refusal to permit the filing of an affidavit of Judge Barrett saying that he had suppressed a written confession, but that he had not suppressed testimony concerning conversations, declarations or statements of defendant at the time of his arrest. The suppression of defendant’s alleged written confession was mentioned in the newspaper. When this article was brought to the court’s attention, the judge inquired of the jury how many had read it. He then asked the six jurors if they were prejudiced “one way or the other against the defendant,” and they answered, “No.” Defense counsel made a motion that the jury be advised that the facts recounted in the article were inaccurate. The judge then explained to the jury that he would not allow Engerman to testify since his name had not appeared on a list of witnesses, but that at no time in ruling on the motion had he used the word “surprise” or indicated that Engerman was a surprise witness. Defense counsel did not move for a mistrial on this point, nor was any contention made at the trial that the article prejudiced defendant.

We find that defendant was not prejudiced by the contents of this article. The poll of the jurors indicated that there was no prejudice, and the court pointedly advised them of the article’s inaccuracies. No demonstrable prejudice is shown — only speculation. See United States ex rel. Darcy v. Handy, 351 US 454, 462. Moreover, because defense counsel failed to object to the procedure followed by the court, or to ask for a mistrial, an inference may be drawn that the incident was unimportant when viewed in the light of the entire trial. Defendant may not now seek to take advantage of any irregularity under these circumstances. See People v. Mays, 23 Ill2d 520, 526-6, 179 NE2d 654.

Defendant maintains that it was prejudicial for the State to introduce evidence that $16,000 in cash was found by the police in defendant’s office at the time of his arrest. Defendant concedes that it was proper to offer testimony pertaining to the $450 allegedly paid by Mrs. Gruver, but that evidence of a larger sum exceeds permissible reference. The testimony complained of was given during the direct examination of Officer King, who stated that “some fifteen thousand dollars or a little more” was recovered. Defense counsel’s objection was sustained and the jury was instructed to disregard the statement. It was then adduced that he saw seven hundred dollars on top of a desk and more than five hundred dollars in a desk drawer. It is obvious from the record that the State was attempting to demonstrate that Mrs. Gruver’s abortion payment was in defendant’s possession. Defendant argues that the amounts referred to were prejudicial as leading the jury to believe that defendant had committed other crimes or was guilty of income tax evasion. We find no merit in this contention.

Defendant argues that the State improperly elicited prejudicial testimony from Dr. McDermott concerning his diagnosis of Mrs. Gruver’s condition. The prosecutor asked the witness, on direct examination, if he had arrived at a diagnosis after his examination of Mrs. Gruver. Defense counsel requested and received leave to interrupt the State’s Attorney’s interrogation for the purpose of questioning the doctor about his qualifications to give an opinion on that point. This examination, in the presence of the jury, covered, among other things, the written report which the witness had made. Part of the report read: “Impression: abortion. To observe.” The witness testified that this represented a “diagnostic impression . . . obtained from a multitude of findings,” and that the “combination of symptoms comes up with a single diagnosis.”

When the prosecutor was then permitted to continue his direct examination, the witness was again asked for his diagnosis, and defense counsel immediately requested a hearing outside the jury’s presence. This was granted and resulted in the judge’s decision to allow the doctor to testify to “what he found from his examination,” the prosecutor having stated that he would have the witness testify that Mrs. Gruver suffered a miscarriage. Dr. McDermott then testified that “my diagnosis was that she had been pregnant and that she had undergone the process known as abortion.” Defense objection was sustained and the jury was instructed to disregard this testimony. The prosecutor then attempted to have the doctor distinguish between “legal” and “medical” abortion. Objections to this line of questioning were also sustained.

We do not believe that defendant was prejudiced by the introduction of this stricken testimony. The witness did not state that the abortion was unlawful or criminal (see People v. Gleitsmann, 361 Ill 165, 197 NE 557), and there is an important distinction between the medical and legal meanings of that word which the prosecutor attempted to show. The witness did not invade the province of the jury. Moreover, during defense counsel’s prior examination of the witness, the term “abortion” was used and was referred to as “passing of the fetus.” This introduction of evidence on the same subject precluded defendant’s instant objection, as he is deemed to have invited the response. See Cleary, Handbook of Illinois Evidence, § 7.3.

Defendant further asserts that the State improperly attempted to explain the absence of a “crucial” witness, Ralph Fowler. An Officer Dean had testified that he had an appointment to meet with Fowler, but that Fowler had not shown up. Defense counsel, in closing argument, stated that it is “common sense” to presume that if the State had produced this witness, he would have testified adversely to its case. The State’s Attorney, in his closing argument, countered by suggesting that Fowler had “disappeared” in order to bolster defendant’s case. We find nothing improper in the officer’s testimony concerning Fowler’s failure to keep his appointment. This testimony had no substantive effect and created no presumption prejudicial or favorable to either party. And, since defense counsel invited the prosecutor’s argument by his own prior argument on the same subject, he is not in a position to complain. People v. Woodley, 57 Ill App2d 380, 388, 206 NE2d 743.

We also believe that defense counsel invited comment by the prosecutor when, in closing argument, he stated that the weakness of the State’s case was reflected by its listing of 26 witnesses when only a few were called. He suggested that this showed a desire to “tucker out” the defense. The State’s Attorney objected to the statement and told the court that defense counsel had been informed that the list specifically referred to “several other indictments.” In this, the prosecutor was merely attempting to prevent the jury from being misled. The response was within the bounds of fair comment and does not constitute prejudicial error. See People v. Smith, 24 Ill2d 198, 200, 181 NE2d 77.

Defendant next contends that he was prejudiced by the improper admission of certain medical instruments into evidence and their submission to the jury during its deliberation. The instruments, a speculum and curettes, were admitted without objection by defense counsel. Defendant now urges that no foundation was established for their admission since they were not connected with the crime (People v. Germany, 28 Ill2d 154, 190 NE2d 713), and are common instruments of the medical profession found in almost every doctor’s office. Mrs. Gruver testified that she saw a curette on a towel in defendant’s operating room and, while the abortion was being performed, felt and heard a scraping in her abdomen. We believe that the case of People v. Johndrow, 71 Ill App2d 75, 218 NE2d 25, is dispositive of this issue. There, the court stated at page 78:

• In our opinion these instruments were admissible in evidence to show that the defendant could have used one or a combination of them to commit the abortion. Wharton, Criminal Evidence, 12th Edition, Volume I, page 298.

Our adherence to this statement is not affected by the fact that Mrs. Gruver did not testify that she had actually seen the speculum. It is sufficient that the instruments were recovered in defendant’s office and that defendant “could have used one or a combination of them to commit the abortion.” Johndrow, supra.

We also believe that the trial judge properly exercised his discretion in permitting the jurors to take the instruments with them to the jury room during their deliberations. The issue as to whether exhibits in evidence should be taken to the jury room is a matter within the sound discretion of the trial judge and his ruling will not be disturbed unless there has been an abuse of that discretion to the prejudice of defendant. People v. Allen, 17 Ill2d 55, 62, 160 NE2d 818. The instruments were properly in evidence, they were recovered from defendant’s office at the time of his arrest, and they were linked to the abortion act. We believe that no prejudicial abuse of discretion has been demonstrated.

Defendant’s final contention is that the court erred in giving to the jury an instruction tendered by the State on the subject of a jury’s proper consideration of a criminal defendant’s own testimony. Since defendant has abstracted only this one instruction, the point need not be considered. People v. Robinson, 27 Ill2d 289, 292, 189 NE2d 243. The State has invited our attention, however, to the fact that the exact instruction to which defendant now objects was also tendered by defendant and may be said to have been given on his behalf also, thus vitiating whatever validity the point may have had. See People v. Riley, 31 Ill2d 490, 496, 202 NE2d 531.

In his reply brief (for the first time), defendant seeks to have this court consider the constitutionality of the abortion statute under which he has been convicted, contending that the language of the statute is so vague and uncertain as to be violative of the due process clauses of the United States and Illinois Constitutions. This issue was not raised in the trial court and is therefore not proper for our consideration. As stated in People v. Luckey, 42 Ill2d 115, 117, 245 NE2d 769, “The question of the constitutionality of a statute is properly preserved for review only when it has been raised in and passed upon by the trial court.”

The judgment of the Circuit Court is affirmed.

Affirmed.

DRUCKER and LEIGHTON, JJ., concur.


source: Caselaw Access Project

author: MR. JUSTICE SCHWARTZ

license: Public Domain

text:
    Supreme Savings and Loan Association, a Corporation, Plaintiff-Appellee, v. Theodore J. Lewis and Thaddeus J. Lisowski, Walter J. Janas and Loretta E. Janas, His Wife, Defendants-Appellants.
    Gen. No. 51,927.
    First District, Third Division.
    October 1, 1970.

      Mitchell Kilanowski, of Chicago, for appellants.
    Philip S. Aimen, of Chicago, for appellee.
   MR. JUSTICE SCHWARTZ

delivered the opinion of the court.

Plaintiff seeks to set aside a redemption from a foreclosure sale or, in the alternative, to recover damages for malicious interference with a contractual relationship which it is charged existed between plaintiff and Walter Janas and Loretta, his wife. The cause was referred to a master in chancery to take testimony and report the same to the court together with his conclusions of fact and law. At the conclusion of plaintiff’s case the defendants moved for a finding in their favor under section 64(5) of the Civil Practice Act. The master thereupon heard arguments on the motion, found in favor of defendants and made his report to the court, recommending that the suit be dismissed. Plaintiff filed objections which were overruled by the master and ordered to stand as exceptions to the report. The chancellor found that plaintiff had established a prima facie case, upheld plaintiff’s exceptions and referred the case back to the master with directions to proceed with the taking of evidence. Defendants chose not to introduce any evidence and by stipulation proofs were closed. The master then filed his report recommending, contrary to his previous report, that plaintiff recover damages against defendants. That report was approved by the chancellor and plaintiff was awarded damages against the defendants Lewis and Lisowski in the sum of $18,296.67. By a separate decree, Count I of plaintiff’s complaint, which sought to set aside the redemption and Count III alleging an unlawful conspiracy to effect a redemption, were dismissed for want of equity. Since no cross-appeal has been taken, the only issue before this court is whether the evidence established a case of malicious interference by the defendants with plaintiff’s contractual rights. The facts follow.

Plaintiff originally was the holder of a first mortgage on improved real estate at 2117 West Melrose Street, Chicago, and in 1962 filed suit for foreclosure. The premises were then occupied by one Gladys Vincent, the mortgagor. Pursuant to a decree of foreclosure entered on June 12,1962, a sale was held by a master in chancery, at which plaintiff’s bid of $9,500 was accepted. The sale was approved and a certificate of sale issued, stating that a deed to the premises would be forthcoming on June 12, 1963, unless sooner redeemed. A duplicate certificate of sale was recorded on June 22,1962.

In March 1963, the plaintiff listed the premises in question for sale with several realtors including Palmer Realty Associates, Inc. That was more than three months before the plaintiff was entitled to a deed or in actual position to sell the property. In the latter part of March, the premises were shown by Palmer Realty to Walter and Loretta Janas. The Janases signed a contract of sale, and a meeting was set at the plaintiff’s office for April 11. Before that meeting took place, the Janases sought the advice of defendant Lisowski, an attorney and real estate broker, and asked his assistance in the transaction. On April 11,1963, the Janases together with Lisowski and one Jaffe of Palmer Realty met with Peter Kezon, president of Supreme Savings and Loan Corporation. Kezon told them that the documents signed by the Janases were not satisfactory since no provision had been made for the possibility that a redemption might be effected before the expiration of the twelve-month statutory period, which would prevent the plaintiff from conveying title to the Janases. It was agreed that plaintiff’s attorney would prepare a new agreement to provide for such contingency. Both of the Janases testified, in contradiction of Kezon, that at that meeting no explanation was offered as to why the property was not for sale nor was any suggestion made that another contract would be drafted by plaintiff. Lisowski testified that at the April 11 meeting Kezon stated that the property was not yet for sale, but that he would inform the Janases when it would be.

After Lisowski left plaintiff’s office, he had a conversation with the Janases in which they said they wanted the property and he told them they could not have it prior to the expiration of the statutory redemption period. Lisowski testified that he asked the Janases if they would consent to his taking title to the property, apparently with the understanding that he was to convey it to them and that Walter Janas said, “Yes.” The Janases testified that this conversation dealt only with the fee that Lisowski was to charge for his services.

On May 1, 1963, after notification from plaintiff that the contract of sale and a closing statement were ready, the Janases picked up the documents and took them to Lisowski for examination. Lisowski struck out a paragraph in the contract which prohibited the Janases from recording the contract of sale and returned the papers to them. That contract was expressly conditioned upon the issuance of a deed after expiration of the redemption period. The Janases returned to plaintiff’s office and signed the necessary papers for the purchase of the property, depositing $1,200 as earnest money.

On May 10, 1963, Lisowski on behalf of his stepson Theodore Lewis purchased the second outstanding mortgage against the property for $200. He also acquired the interest of Gladys Vincent, whose mortgage had been foreclosed by the plaintiff as hereinbefore stated, for $200. The purpose of those transactions was to enable Lisowski to redeem the property in question. On May 14, 1963, Lisowski paid the necessary amount to the master who had issued the certificate of sale to the plaintiff and secured a certificate of redemption. On July 15, 1963, plaintiff returned to the Janases the earnest money it had been holding and “cancelled” the contract between them. On July 23, 1963, Lisowski and his wife entered into a contract with the Janases to convey the property to them for $14,500, which was $500 less than the amount they had agreed to pay the plaintiff under the terms of the contract which was dependent on plaintiff’s acquiring title. The issue before us is whether the facts constitute a proper case for application of the doctrine of malicious interference with contract.

The first case recognizing the existence of a cause of action for malicious interference with the contractual rights of another is the English decision of Lumley v. Gye, 2 Ell & BL 216 (1853). There the defendant “maliciously intending to injure the plaintiff” was held liable for persuading a renowned opera singer to abandon her exclusive contract with the plaintiff. The unique character of the services involved largely induced the court’s decision. The principle of law which has evolved from Lumley is now established in Illinois and a defendant will be held liable if he intentionally and without justification induces another to breach his contract with a third party. Herman v. Prudence Mut. Cas. Co., 41 Ill2d 468, 244 NE2d 809; Loewenthal Securities Co. v. White Paving Co., 351 Ill 285, 184 NE 310; Doremus v. Hennessy, 176 Ill 608, 52 NE 924; Graff v. Whitehouse, 71 Ill App2d 412, 219 NE2d 128. There are reservations, however, in the application of the doctrine and a right or privilege to interfere in contractual relationships may exist under certain circumstances.

In Herman v. Prudence Mut. Cas. Co., supra, the court strongly indicated that where a complaint is sufficient to state a cause of action for malicious interference with contract, the question of privilege must be carefully examined before any liability can be imposed. As noted in Herman, the Restatement of the Law of Torts (ed 1939) outlines the factors to be weighed in each case and upon which the existence of a privilege to interfere must depend. We quote from page 63 of that treatise as follows:

“In determining whether there is a privilege to [induce a third person not to perform his contract with another], the following are important factors:
“ (a) the nature of the actor’s conduct,
“(b) the nature of the expectancy with which his conduct interferes,
“ (c) the relations between the parties,
“(d) the interest sought to be advanced by the actor and
“ (e) the social interests in protecting the expectancy on the one hand and the actor’s freedom of action on the other hand.”

The first factor to be considered here is the conduct of defendant which resulted in termination of the plaintiff’s contract. The evidence reveals that plaintiff listed the property with several real estate brokers approximately three months before the expiration of the statutory redemption period; that is, three months before plaintiff had the right to deliver a deed. Lisowski testified that he examined the public records in March 1963 and learned that the first mortgage had recently been foreclosed, that the redemption period had not expired and that a junior mortgagee also held a right of redemption. Armed with that information, he proceeded to obtain assignments of the outstanding interests in the property. He then effected a redemption and sold the property to the Janases. There was nothing unlawful in the method by which Lisowski thus obtained title to the premises.

Under the terms of the contract between plaintiff and the Janases, the issuance of a master’s deed at the expiration of the redemption period was a condition which had to occur before a duty of performance arose. There was no certainty that plaintiff would realize its expectancy arising out of the contract with the Janases because there were two unexercised rights of redemption outstanding. Plaintiff, as the purchaser at a mortgage foreclosure sale, acquired no title to the property, either legal or equitable. Hack v. Snow, 338 Ill 28, 169 NE 819; Allison v. White, 285 Ill 311, 120 NE 809; Litwin v. Litwin, 375 Ill 90, 30 NE2d 619; Williams v. Williston, 315 Ill 178, 146 NE 143. The holder of a certificate of sale merely has a right to a master’s deed if redemption is not made within the statutory period or, if redemption is effected, a right to receive the redemption money. Hruby v. Steinman, 374 Ill 465, 30 NE2d 7; Wein v. Albany Park Motor Sales Co., 312 Ill App 357, 38 NE2d 556. It is undisputed that plaintiff derived no standing from its certificate of sale which would enable it to prevent the lawful exercise of any outstanding right of redemption.

The most significant feature of the relationship between the plaintiff and Lisowski is its competitive nature. That is evidenced by the effort each expended in the hope of deriving a quick profit from the sale of the premises to the Janases. The methods used by Lisowski in thwarting plaintiff’s financial expectations were, as we earlier noted, entirely within the law. Lisowski testified that he first became aware of the outstanding rights of redemption through a title search he conducted in late March. The title situation was a matter of public record. However even if, as plaintiff alleges, Lisowski’s knowledge of the unexpired rights of redemption was derived from negotiations between plaintiff and the Janases, he was retained by the Janases to represent their interest in the negotiations and owed no duty to plaintiff which would render his subsequent conduct culpable.

The next factor to be considered is Lisowski’s purpose in interfering with the contract. We may assume from the evidence that he was animated by a desire to further his own economic self-interest, as was the plaintiff. There is nothing in the law however which prevents a person with knowledge of a possible gain to be derived from a redemption, from acquiring and exercising the right to redeem. Moreover Lisowski paid $400 to obtain control of the outstanding redemptive rights, $200 of which he paid to the mortgagor and $200 directly to a junior mortgagee. This brings us to a consideration of the public policy of this State and its relationship to the competing interests of the parties in the instant case.

The recognized purpose of redemption is to benefit the debtor through the satisfaction of as many of his debts as possible and, equally, to benefit creditors by affording them an opportunity to obtain payment of their judgments. To that end redemptions are permitted insofar as the provisions of the statute fairly authorize them. Wojcik v. Stolecki, 411 Ill 443, 104 NE2d 288; Hruby v. Steinman, 374 Ill 465, 30 NE2d 7; Elliott v. Valkanet, 19 Ill App2d 346, 153 NE2d 588. By favoring the exercise of the right to redeem, the legislature has provided an incentive to a bidder at a foreclosure sale to offer an amount which reflects the reasonable value of the premises being sold. The greater the disparity between the highest bid at a sale and the reasonable value of the premises, the greater the likelihood that a redemption will be effected. In the instant case the amount of the plaintiff’s successful bid was $9,500. The property was listed for sale only a short time before a purchaser (Janas) was found who was willing to pay $15,000. The disparity between the cost of redeeming the property and the amount at which it could be sold provided an economic stimulus to those knowledgeable in such transactions to acquire and exercise the outstanding redemptive rights. In listing the property for sale with several brokers, the plaintiff sought to attract prospective purchasers to a parcel of real estate the title to which it did not possess. Listing property for sale does not terminate the redemptive rights conferred by statute or prevent their lawful assignment. Plaintiff, by listing the property for sale before the statutory period had run on the outstanding redemptive rights, did so at its own peril and cannot now be heard to complain of actions taken by those whose attention was drawn to the property by the offer to sell. The defendants discovered that title to the property could be acquired more quickly and economically by purchasing the outstanding interests and paying the redemption money. This they not only had a right to do, but it is a method of acquiring title which is highly favored by our laws. The reason for such favored treatment is clear. Unsatisfied creditors at a foreclosure sale receive something at least which they would not have received had those rights been allowed to expire. To that extent Lisowski’s position is in accord with the object and purposes of the foreclosure law. It is also in accord with the factors set forth in the Restatement of the Law of Torts, supra, and considered in Herman v. Prudence Mut. Cas. Co., 41 Ill2d 468, 244 NE2d 809, as determining the right or privilege of a person to interfere with the contractual rights of others. Accordingly we do not consider this a proper case for imposition of liability for malicious interference with contract.

The judgment of the Circuit Court is reversed.

Judgment reversed.

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


author: MR. PRESIDING JUSTICE BURMAN

text:
    American National Bank & Trust Company of Chicago, As Trustee Under Trust No. 20695 Dated September 2, 1964, and Trevor R. Bricker and Darlene L. Bricker, His Wife, and Louise V. Morgan, Plaintiffs-Appellees, v. City of Chicago, a Municipal Corporation, Defendant-Appellant.
    Gen. No. 52,145.
    First District, First Division.
    October 13, 1970.

      Raymond F. Simon, Corporation Counsel of City of Chicago (Marvin E. Aspen and Howard C. Goldman, Assistant Corporation Counsel, of counsel), for appellant.

      No brief for appellees.
   MR. PRESIDING JUSTICE BURMAN

delivered the opinion of the court.

The plaintiffs are the owners of two adjacent and contiguous pieces of improved property located at 1665-1703 West 103rd Street in Chicago, Illinois. The plaintiffs desire to construct a 27-unit condominium apartment building on the properties, but they cannot proceed because the properties are located in an R1 Single-Family Residence District where the construction of multiple-dwelling units is prohibited. On November 16, 1964, the plaintiff, American National Bank and Trust Company of Chicago, acting as trustee, filed an application for an amendment of the Chicago Zoning Ordinance with the Zoning Administrator. The application requested that the Chicago City Council change the zoning classification of the area in which the properties are located from an R1 Single-Family Residence District to an R4 General Residence District. The Committee on Buildings and Zoning of the Council held a hearing, and the City Council rejected the amendment on October 5, 1965. The plaintiffs on October 18, 1965, filed a complaint for declaratory judgment in the Circuit Court of Cook County in which they sought inter alia the right to erect an apartment building in conformity with the restrictions of an R3 General Residence District. After trial, the Circuit Court entered judgment for the plaintiff on December 2, 1966. The defendant, City of Chicago, appeals.

The defendant-appellant, City of Chicago, has filed its brief and abstract and complied with all the statutory requirements and rules of this court for prosecuting an appeal. No appearance or brief has been filed by the plaintiff-appellee. We could reverse without considering the merits of the case due to the failure of the appellee to appear and file a brief. Parkside Realty Co. v. License Appeal Commission, 87 Ill App2d 374, 231 NE2d 654. 2 ILP, Appeal and Error, § 560. We have decided, however, to consider this case on the merits.

The City contends that the judgment should be reversed on the ground that the plaintiffs have failed to exhaust the local remedies available under the Chicago Zoning Ordinance. When a property owner seeks to contest the validity and constitutionality of a zoning ordinance as a whole, he is not required to seek the local remedies provided in the ordinance before seeking judicial relief; but if the property owner seeks only to contest the validity of the zoning ordinance as applied to his property, he must exhaust the local remedies provided in the ordinance before seeking judicial relief unless seeking local relief would be futile. Bright v. City of Evanston, 10 Ill2d 178, 139 NE2d 270. The term local relief refers both to administrative and legislative relief. If the local ordinance permits a property owner to submit amendments to the zoning ordinance, a property owner must submit an amendment prior to seeking judicial relief. Reilly v. City of Chicago, 24 Ill2d 348, 181 NE2d 175. The purpose of the exhaustion requirement is to ensure that the local governmental unit has an opportunity to exercise its expertise in the field of zoning and to correct alleged errors and hardships before becoming involved in litigation. Reilly v. City of Chicago. A property owner exhausts his local remedies only with respect to the relief which he has sought and has been denied; in a subsequent judicial proceeding he can only seek the relief which he had sought on the local level. This result follows from the purpose of the exhaustion requirement. The local governmental unit must have an opportunity to correct errors and hardships before litigation commences.

The subject property is located within the limits of the City of Chicago and is subject to the provisions of the Chicago Zoning Ordinance. Municipal Code of Chicago Chapter 194A. The Chicago Zoning Ordinance permits a property owner to submit amendments to the City Council. Municipal Code of Chicago, c 194A, § 11.9-2. The record reveals that the plaintiff American National Bank and Trust Co. of Chicago, acting as trustee, proposed an amendment to the Chicago Zoning Ordinance which would have changed the classification of the subject properties from R1 to R4. It further reveals that a committee of the Council held a hearing on the amendment and that the Council rejected the amendment. The record does not show that the plaintiffs submitted to the Zoning Administrator and Council an amendment to the Zoning Ordinance which would have changed the zoning classification of the subject property from El to R3, nor does it show that the City Council considered changing the classification from El to R3. The City Council had no opportunity to consider the merits of reclassifying the subject property R3.

There are significant differences between an R4 and an R3 classification. An R4 classification permits a more intensive use of land than does an R3 classification, and an R4 classification authorizes twelve uses in addition to those authorized by an R3 classification.

The plaintiffs failed to exhaust their local remedies when they sought an E3 classification in court without first seeking to change the classification from El to E3 by amendment to the Chicago Zoning Ordinance.

The city also contends that the judgment should be reversed on the ground that the plaintiffs failed to give proper written notice of the commencement of the action for declaratory judgment to owners of property surrounding the subject property and on the ground that the plaintiffs failed to overcome the presumption of validity of the Chicago Zoning Ordinance. As a result of our disposition of the City’s first contention we do not consider it necessary to pass upon these contentions.

For the reasons stated, the judgment of the Circuit Court is reversed, and the cause is remanded with directions to dismiss the Complaint.

Reversed and remanded with directions.

MURPHY and ADESKO, JJ., concur.


author: MR. JUSTICE ADESKO

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Theodore Robinson, Defendant-Appellant.
    Gen. No. 52,297.
    First District, First Division.
    September 21, 1970.

      John T. McCarthy, of Chicago, for appellant.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Donald N. Novelle, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE ADESKO

delivered the opinion of the court.

The defendant was charged with the crime of murder and was found guilty by a jury verdict on December 12, 1966. The sentence was fixed by the jury as a term of 30 years’ imprisonment. This conviction was the result of a retrial after a previous conviction of the defendant was remanded for a new trial by a decision of the United States Supreme Court in Pate v. Robinson, 383 US 375 (1966). In that decision, the United States Supreme Court held that the defendant had been deprived of due process of law because at the defendant’s previous trial on the same murder charge the trial court refused to conduct a sanity hearing to adjudge his competence to stand trial. The case was remanded for a new trial within a reasonable time. The matter was reinstated and a new trial was held, from which defendant now appeals.

This case was reinstated by order of court on April 21, 1966. On that date, the trial court ordered that the defendant be examined by the Cook County Behavior Clinic. Defendant was then represented by counsel who objected to this examination. The objection was overruled and the case was continued to May 5, 1966. The Behavior Clinic report, filed on May 5, concluded that the accused understood the nature of the charge and was capable of cooperating with his counsel. Defense counsel then presented a motion for a psychiatric examination of the defendant and the case was continued to May 12, 1966. This motion was granted on May 12 and the case was continued on defense motion to May 27,1966. On this next date, some discussion was had concerning the psychiatric examination of the defendant; the defendant insisted upon being examined by a psychiatrist connected with the Veteran’s Administration; some question was raised as to whether the defendant wished the examination if a psychiatrist with a military background was selected or whether he desired any examination at all. The case was then continued to June 17, 1966 on defense motion. Subsequently, on June 17 and June 23, the cause was continued on the court’s motion without any psychiatrist being appointed.

On June 24, 1966, the defendant expressed some disagreement with his counsel and defense counsel’s motion to withdraw was granted. The Public Defender was appointed as counsel, to which the defendant objected, having expressed a desire to represent himself and the matter was continued to June 30, 1966 on defense motion. On June 30, 1966, the trial court ordered a hearing to be conducted to determine the defendant’s competency to stand trial and the trial court also appointed a psychiatrist to examine the defendant on the court’s motion. It was subsequently disclosed that the defendant refused to be examined by a court appointed psychiatrist. The competency hearing was held on August 19, 1966, which resulted in a finding that the defendant was competent to stand trial. There followed a number of continuances on motions of the State and the trial finally commenced on December 6, 1966. Since no question is raised concerning the sufficiency of the evidence, we will not set out the facts which resulted in defendant’s conviction.

The first question raised by the defendant concerns the alleged denial of a speedy trial, in violation of Article II, section 9 of the Illinois Constitution and the statutory provision relating to that right. The statutory reference is to Ill Rev Stats, c 38, § 103-5(a) (1965), which provides:

“Every person in custody in this State for an alleged offense shall be tried by the court having jurisdiction within 120 days from the date he was taken into custody unless delay is occasioned by the defendant, by a competency hearing, or by an interlocutory appeal.”

Defendant recognizes that from the date of reinstatement of this case some of the delays were attributable to himself. However, he argues that from the date of June 30, 1966, to the date of trial the 120-day rule had been violated which would necessitate the reversal of his conviction and dismissal of the complaint. The defendant takes issue with the trial court’s order of June 30, 1966, where a competency hearing was ordered and a psychiatric examination was set by order of court. Defendant contends “that the trial court clearly abused its discretion in ordering a competency hearing, that the 120-day period . . . was therefore not tolled and that the defendant is entitled to be discharged since he was not brought to trial within 120 days from June 30, 1966.”

The State contends that the 120-day rule was tolled when the trial court acted within its discretion in ordering a competency hearing for the defendant. The contention is that once the competency hearing was concluded on August 19,1966, a new period of 120 days commenced, and that the trial on December 6, 1966, was within this time limit. This contention would dispose of this issue if it is determined that the trial court acted properly in calling for a determination of defendant’s competency to stand trial.

The statutory authority for such a hearing is found in Ill Rev Stats, c 38, § 104-2(a) (1965), which provides:

“If before a trial . . . the court has reason to believe that the defendant is incompetent the court shall suspend the proceedings and shall impanel a jury to determine the defendant’s competency.”

This power has been held to rest within the discretion of the trial court. People v. Pridgen, 37 Ill2d 295, 226 NE2d 598 (1967); People v. Bortnyak, 39 Ill2d 545, 237 NE2d 451 (1968); People v. McGuirk, 106 Ill App2d 266, 245 NE2d 917 (1969). The application of the rule has been expressed in terms of a “bona fide doubt” as to an accused’s competency. Thus, in People v. Burks, 80 Ill App2d 324, 224 NE2d 668 (1967), this court stated at page 327-328:

“If facts which give rise to a bona fide doubt as to a defendant’s sanity are brought to the attention of the trial court before or during trial, either from observation of the defendant or suggestion by counsel, the court has a duty to impanel a jury to determine whether the accused is capable of understanding the nature of the charges against him and of cooperating with his counsel.”

See also, People v. Harper, 31 Ill2d 51, 198 NE2d 825 (1964).

We are of the opinion that sufficient facts were present in this case to warrant the trial court’s order of a competency hearing which tolled the 120-day rule. The defendant has a long history of mental disorders as disclosed by the Behavior Clinic reports and as set forth in the majority opinion of the United States Supreme Court in Pate v. Robinson, 383 US 375 (1966).

Furthermore, this second trial was conducted after a mandate from the United States Supreme Court in which a new trial was ordered for failure to ascertain the defendant’s competency at his previous trial. The record also discloses that the defendant disagreed with his counsel as to the trial tactics to be employed in his defense which resulted in the withdrawal of his appointed counsel. Subsequently, the defendant insisted on conducting his own defense, with the Public Defender merely advising the defendant. With these facts established, we feel that the trial court did not abuse its discretion in holding a competency hearing. Even though the Behavior Clinic’s report established the defendant’s competency, the trial judge cannot be criticized for taking the precaution of conducting a hearing which resulted in a jury verdict finding the defendant competent to stand trial. Therefore, we hold that the defendant was not deprived of the right to a speedy trial.

The defendant’s second contention is that the trial court failed to hold a hearing in aggravation and mitigation before imposing the sentence. As stated above, the jury’s verdict of guilty also imposed the sentence of 30 years’ imprisonment, from which the defendant now appeals. The defendant argues that the sentence should be vacated and this cause remanded to the trial court for a hearing on aggravation and mitigation and in the alternative, the defendant asks this court to reduce the sentence imposed by the trial court.

The question is whether the defendant was to be tried under the applicable statutory provisions of 1959 or under the 1965 statutory enactment. The 1959 Criminal Code provided in Ill Rev Stats, c 38, § 801 that:

“In all cases where any person, male or female, over ten years of age, shall be charged with either of the offenses of misprison or treason, murder, voluntary manslaughter, rape or kidnapping, and the case shall be tried by a jury and the jury shall find the defendant guilty, the jury shall also by its verdict fix the punishment, and if the punishment imposed is imprisonment, the jury shall fix the term of such imprisonment.”

The pertinent 1965 provisions are found in Ill Rev Stats, c 38, § 1-7(b) and (g) which provide:

“ (b) Determination of Penalty
“Upon conviction, the court shall determine and impose the penalty in the manner and subject to the limitation imposed in this Section.
((
• • •
“ (g) Mitigation and Aggravation
“For the purpose of determining sentence to be imposed, the court shall, after conviction, consider the evidence, if any, received upon the trial and shall also hear and receive evidence, if any, as to the moral character, life, family, occupation and criminal record of the offender and may consider such evidence in aggravation or mitigation of the offense.”

The defendant argues that he was entitled to have his sentence imposed by the court and that a hearing on aggravation and mitigation was mandatory unless this hearing was understandingly waived by the defendant. The State contends that the defendant did in fact waive his right to this hearing during the pretrial proceedings and at the commencement of trial. Defendant urges that the record is completely devoid of any affirmative election in this regard.

The record discloses that prior to trial, the defendant filed a motion to be tried under the 1959 statutes. It appears that on October 28, 1966, the defendant made reference to this motion and requested that he be tried under statutes of 1959 when the alleged crime was committed. On December 6,1966, prior to the selection of the jury, the defendant then addressed the court regarding being tried under the 1959 statutes. The trial court responded that the 1959 statutes would apply and the defendant replied “Thank you, Your Honor.” During voir dire examination reference was made to the fact that the jury would fix the amount of punishment. The defendant raised no objection to this reference.

We are of the opinion that the record reveals that the defendant made an election to be tried under the applicable criminal statutes of 1959. The jury was instructed accordingly and did impose the sentence involved in this appeal pursuant to chapter 38, section 801 of the Ill Rev Stats of 1959. The aggravation and mitigation hearing was unnecessary, in view of the waiver made by the defendant. Furthermore, we are of the opinion that this case does not warrant this court’s exercise of its power to reduce the punishment imposed by the trial court. Ill Rev Stats, c 110A, § 615(b)(4) (1969). (Supreme Court Rule 615.) This power is to be cautiously exercised and only where substantial prejudice of the defendant’s rights has occurred. This record is devoid of any such prejudice.

Therefore, the judgment of the Circuit Court of Cook County is affirmed.

Judgment affirmed.

BURMAN, P. J. and MURPHY, J., concur.


text:
    Ralph Noe, Plaintiff-Appellee, v. Chicago Great Western Railway Company, a Corporation, Defendant-Appellant.
    Gen. No. 52,581.
    First District, Third Division.
    November 6, 1969.
    Rehearing denied October 30, 1970.

      Winston, Strawn, Smith, and Patterson, of Chicago (Edward J. Wendrow and R. Lawrence Storms, of counsel), for appellant.
    James A. Dooley, Clare J. Murphy, and Joseph P. Jenkins, of Chicago, for appellee.
   MR. JUSTICE SCHWARTZ

delivered the opinion of the court.

Plaintiff brought an action to recover for injuries to person and property sustained in a grade crossing collision in Iowa on September 21, 1953, between a crane driven by the plaintiff and a train operated by the defendant. The claim is based on two counts: (1) common-law negligence, and (2) a violation of the Federal Safety Appliance Act. In a former trial the jury found for the defendant on Count One and the court directed a verdict for the defendant on Count Two. On appeal we reversed and remanded the cause for a new trial. Noe v. Chicago Great Western Ry., 71 Ill App2d 347, 219 NE2d 111. On retrial the jury returned a verdict for the plaintiff for $24,500. Judgment was entered thereon and defendant now takes this appeal. It contends: (1) that the plaintiff was guilty of contributory negligence as a matter of law; (2) that except when the doctrine of last clear chance is applicable, contributory negligence by the plaintiff is a complete defense to the charges of common-law negligence and violation of the Federal Safety Appliance Act; and (3) that plaintiff’s allegation of defective brakes precludes the plaintiff from relying on the doctrine of last clear chance because under Iowa law, which is applicable here, the doctrine of last clear chance may not be invoked where the defendant’s alleged negligence occurred prior to the plaintiff’s contributory negligence. Except for the expert testimony as to the efficiency of the brakes on the train, the evidence at the second trial was substantially the same as that adduced at the first.

Plaintiff was an operator of heavy equipment and had been working with a crane at the Dubuque Sand and Gravel Pit adjacent to the track. The crane weighed 25 to 30 tons and from the front of it there extended a 42-foot boom. It was self-propelled by a caterpillar type system with a maximum speed of two miles an hour. Plaintiff planned to move the crane from the gravel pit to another job site and had engaged a truck designed to carry heavy equipment. The pit was separated from a nearby highway by defendant’s railroad track, and a private road connected the pit with the highway. Owing to the steepness of the grade and the low clearance of the truck, plaintiff decided to drive the crane under its own power across the grade crossing to the highway.

A provision of the Motor Vehicle Act of the State of Iowa required that vehicles of that character having a normal speed of six or less miles per hour may not be operated across a railroad grade crossing without notice first being given to a superintendent of the railroad in time for the railroad “to provide proper protection at such crossing.” No effort was made by the plaintiff to give notice to any agent of the railroad although there was a local train dispatcher in a nearby office. The Act also required a person operating such a vehicle to stop between 10 and 50 feet from the nearest rail and look and listen for an approaching train. Iowa Code Ann, § 321.344.

At 5:00 a. m. on the morning of the accident plaintiff met the driver of the truck, John Eeisdorf, at a restaurant about two miles from the gravel pit, stayed there 20 or 25 minutes and then went to a point near the highway side of the track where Eeisdorf remained in his truck while plaintiff went to the pit. On the vehicle was a cab painted “highway yellow” which had a seat for the operator in the front on the right side. The cab had ample windows in front and on both sides, and in addition there was a door on the left side which was open that morning. The boom which was painted black had been lowered to a point 10 or 15 feet off the ground as was customary during travel, in order to give better vision and balance. Eight behind the operator in the cab was the motor which made so much noise, the operator could not hear the sound of a train in motion, although plaintiff testified that on other occasions he had been able to hear train whistles. There were no lights anywhere on the crane.

Plaintiff testified that he stopped the crane at a point on the private roadway with the cab 50 feet from the crossing, looked both ways, saw nothing approaching and started across at the full speed of two miles an hour. At that speed it took about 17 or 18 seconds to traverse the 50 feet to the crossing. Plaintiff testified that he did not look to the left again and did not know whether the train whistled or rang its bell. He said that all but eight inches of the rear end of the crane had cleared the track when the train coming from the left side hit the crane.

Reisdorf, the driver of the truck, testified that he remained in his parked truck on the highway side of the tracks with his view of the tracks largely obstructed by a billboard and that he first became aware of the train when it hit the crane. Plaintiff had not asked him to observe the tracks or flag down trains.

Crew members of defendant’s train testified that the train’s brakes had been satisfactorily tested minutes before the accident, the whistle had been blown at a whistling post 2,000 feet from the crossing, the fixed and oscillating headlights were on, illuminating the track for 1,000 feet and the automatic bell ringer was on. A quarter of a mile or more from the crossing, proceeding at 35 to 40 miles an hour, the engineer saw something on the track, quickly made out that it was a boom, set the brake in emergency and continuously sounded the whistle. At impact the train had slowed down to five miles an hour.

The engineer testified that when he asked whether the plaintiff had not seen the train’s headlights, plaintiff replied that he “didn’t look” and that he had never seen a train along there at that time of the morning. The conductor testified that in response to a question by the engineer, plaintiff said he had not heard the whistle because the machine made so much racket he could not hear anything. Another employee of the defendant, who happened along after the collision, testified that plaintiff asked, “How come they run a train at that time of day?”

Plaintiff presented the witness Clifford Moore as an expert on the efficiency of the train’s brakes. He is a retired engineer with 35 years’ experience with the Nickel Plate Road. In answer to a hypothetical question he testified that in his opinion a train traveling at 35 to 40 miles an hour, under the circumstances prevailing here and with the train in emergency application of its brakes, should have been brought to a full stop within 600 to 700 feet. He further testified that assuming the facts of the instant case, it was his opinion that the train’s brakes worked ineffectively. He stated on cross-examination that an increase in air pressure in the train’s brake lines from 70 to 100 pounds would just about double the braking ability; that there was a difference in the stopping distance between a train carrying 90 pounds of air pressure and one carrying 110 pounds; and that in giving his opinion he assumed a “happy medium” between the two pressures. It was stipulated that at the prior trial Moore had testified to a stopping distance of between 600 and 700 feet, but that at that time he had assumed the air pressure to be 110 pounds. Plaintiff’s case is based on this uncertain testimony.

Arthur Johnson testified on behalf of defendant that he was the fireman on the train and that it carried 90 pounds of pressure on the day in question. Given essentially the same facts that were given to Moore, one Edward Bergman, called as a brake expert by defendant, testified that in his opinion if the train were traveling 40 miles per hour, it would come to a full stop within 1,321 feet, while at 35 miles per hour the stopping distance would be 971 feet.

Before considering the points made by defendant, we will consider plaintiff’s contention that the law of the case doctrine estops defendant from making such points. Defendant contends that plaintiff was guilty of contributory negligence as a matter of law and that the Iowa doctrine of last clear chance should not be applied where, as here, the defendant’s alleged negligence occurred prior to the plaintiff’s negligence. Plaintiff contends that these points were adjudicated and rejected by this court on the prior appeal and that the law of case doctrine is applicable. This contention requires an analysis of our prior opinion.

In the first trial of the case the evidence adduced was much the same as in the instant trial, except for the expert testimony relevant to the condition of the train’s brakes. The trial court in the first trial directed a verdict for the defendant as to the count for violation of the Federal Safety Appliance Act and the jury found defendant not guilty as to the count for common law negligence. In reversing and remanding, we held that the trial court erred when it refused to allow the expert witness Moore to answer a hypothetical question relating to the stopping distance of the train. On rehearing the defendant properly pointed out that Moore’s answer to the hypothetical question was later admitted, but we concluded that remandment was nevertheless required because of the trial court’s original ruling and because of an assertion made by defense counsel in closing argument that the evidence in question had not been admitted. We held that the confusion in the record on that point required remandment despite what we observed was “overwhelming evidence of plaintiff’s contributory negligence.”

The law of the case doctrine provides that where the evidence on a subsequent appeal is the same as on the first or prior appeal, or substantially so, the adjudications of such first or prior appeal are binding on the reviewing court on a subsequent appeal. Hammer v. Slive, 35 Ill App2d 447, 183 NE2d 49; Bartels v. McGarvey, 331 Ill App 275, 73 NE2d 123. The points now raised by defendant in the instant case were not adjudicated in our prior opinion. Nowhere in that opinion did we consider the contention now raised by defendant that the doctrine of last clear chance does not apply where the defendant’s negligence is antecedent to the plaintiff’s contributory negligence, nor was the point raised by the parties in their briefs. Defendant argued that the doctrine of last clear chance should not be applied, but for a different reason. It argued that plaintiff’s amended complaint made inconsistent charges relating to the last chance doctrine and we held against it on that point in our prior opinion.

In the first appeal the defendant was the appellee, having obtained a judgment in its favor in the trial court. As appellee it was required only to answer plaintiff’s assignments of error. It had no duty to assign cross-errors nor was it estopped from raising the error on subsequent appeals. Novitsky v. Knickerbocker Ice Co., 276 Ill 102, 114 NE 545. Defendant has the right now, judgment having been rendered against it, to raise all contentions not previously adjudicated against it by this court. There having been no adjudication on the prior appeal as to the question of applicability of the doctrine of last clear chance where the defendant’s negligence is antecedent to the plaintiff’s contributory negligence, we proceed to consider defendant’s contentions.

Defendant’s first contention is that plaintiff was guilty of contributory negligence as a matter of law. Under Iowa law plaintiff’s violation of the statute relating to the operation of vehicles across grade crossings constituted contributory negligence as a matter of law unless plaintiff could show a legal excuse therefor. Van Patten v. Chicago, R. I. & P. R. Co., 251 Iowa 1221, 102 NW2d 898 (1960); Wachter v. McCuen, 250 Iowa 820, 96 NW2d 597 (1959); Kisling v. Thierman, 214 Iowa 911, 243 NW 552 (1932); Chicago, R. I. & P. R. Co. v. Breckenridge, 333 F2d 990 (CA 8th Cir 1964). Plaintiff in the instant case offered no excuse for his violation of the Iowa statute regulating the movement of heavy equipment across railroad crossings (Iowa Code Ann, § 321.-344). To disregard the requirements of that statute and to proceed to drive a crane weighing some 30 tons with a 42-foot boom protruding from the front and limited to a creeping pace of two miles per hour across railroad tracks is negligence as a matter of law.

Contributory negligence is a bar to plaintiff’s recovery whether his case is based on a theory of common law negligence (Yance v. Hoskins (Iowa), 281 NW 489 (1938); Hogan v. Nesbit, 216 Iowa 75, 246 NW 270 (1933)), or on a violation of the Federal Safety Appliance Act. Crane v. Cedar Rapids & Iowa City Ry. Co. (Iowa), 160 NW2d 838 (1968). That decision was affirmed by the United States Supreme Court in 395 US 164. Consequently the doctrine of last clear chance, on which plaintiff relies, is vital to his case.

Defendant contends that the doctrine does not apply where the defendant’s negligence occurred prior to the plaintiff’s contributory negligence, or, in other words, that the doctrine of last clear chance applies only where the defendant knew or should have known of the plaintiff’s peril and having the ability to avoid injury, failed to do so. It argues that accepting the plaintiff’s theory of the case, the defendant’s train was equipped with defective brakes at the time or before it discovered the plaintiff’s peril and hence the doctrine does not apply. As stated in our previous opinion, the doctrine under the law of Iowa “presupposes proof of plaintiff’s contributory negligence and permits recovery where defendant (1) has actual knowledge of plaintiff’s situation, (2) realizes or should realize that he is in peril, and (3) having the ability to avoid injury to plaintiff thereafter fails to do so.” (Emphasis added.) Noe v. Chicago Great Western Ry., 71 Ill App2d 347, 219 NE2d 111; Vreugdenhil v. Kunkel, 256 Iowa 1311, 127 NW2d 630 (1964); Tilghman v. Chicago & N. W. Ry., 253 Iowa 1339, 115 NW2d 165 (1962). It is what the defendant did or failed to do after it discovered that plaintiff was imperiled that constitutes the breach of duty for which the defendant is held liable under the doctrine of last clear chance. That doctrine cannot rest upon a breach of duty by the defendant before the peril arose, variously referred to as “primary,” “antecedent,” “preexisting,” or “prior” negligence. 70 ALR2d 22, 38 Am Jur, Negligence, § 218; Menke v. Peterschmidt, 246 Iowa 722, 69 NW2d 65 (1955); Vreugdenhil v. Kunkel, supra. In the Vreugdenhil case the Iowa Supreme Court rejected the interpretation of last clear chance as urged by the plaintiff and held (p 634) that “It is only defendant’s negligence after he discovers, or in the exercise of due care should have discovered, the plaintiff’s danger that brings the doctrine into effect.”

Plaintiff argues that a violation of the Safety Appliance Act is determined as of the time the brakes actually failed to operate properly, not at the. time the train was placed on the tracks with defective brakes. Hence, it is argued, the wrongful act occurred after plaintiff’s contributory negligence and cannot be said to be antecedent. This argument misapprehends the theory behind the doctrine of last clear chance.

Under Iowa law contributory negligence is a defense to a violation of the Safety Appliance Act as well as to an action for common law negligence. Crane v. Cedar Rapids & Iowa City Ry. Co. (Iowa), 160 NW2d 838, affd 395 US 164 (Iowa 1969). In Fairport, P. E. R. Co. v. Meredith, 292 US 589 (Iowa 1934) the court held that the Safety Appliance Act does not affect the defense of contributory negligence and that the defense must be determined in accordance with applicable state law. In Iowa the doctrine of last clear chance stands as an exception to its general rule that contributory negligence is a complete bar to recovery in an action for negligence or violation of statute. If the requirements of the doctrine are not met, the general rule applies and in this case the essential element of that doctrine is lacking, to-wit: that the defendant, after perceiving the plaintiffs peril, had the ability to avoid injuring him.

Plaintiff cites Fairport, P. & E. R. Co. v. Meredith, 46 Ohio App 457, 189 NE 10 (1933) for the contrary proposition that a defendant may be liable under the doctrine of last clear chance in cases arising under the Safety Appliance Act, even though its negligence is antecedent or prior. That case represents a minority view. The reasoning of the Ohio court in Fairport was rejected in Andersen v. Bingham & Garfield Ry. Co., 117 Utah 197, 214 P2d 607 (1950) as follows (p 613):

“Assuming that the defendant in the instant case did not operate its train with defective brakes in violation of the Safety Appliance Act, its negligence may be a greater ‘wrong,’ as the Fairport case seemed to indicate, but its negligence is not a later ‘wrong’ which the doctrine of last clear chance contemplates and operates upon.”

This conforms to the Iowa law. Regardless of when the alleged violation of the Safety Appliance Act occurred, the plaintiff has failed to present a case for the application of the doctrine of last clear chance and the judgment must be reversed.

Judgment reversed.

DEMPSEY, P. J. and DRUCKER, J., concur.


author: MR. PRESIDING JUSTICE DEMPSEY

text:
    Chicago Title & Trust Company, as Trustee Under Trust No. 47788, Plaintiff-Appellee, v. City of Chicago, a Municipal Corporation, Defendant-Appellant.
    Gen. No. 52,585.
    First District, Third Division.
    October 15, 1970.

      Raymond F. Simon, Corporation Counsel of City of Chicago (Marvin E. Aspen and Joseph N. Lascaro, Assistant Corporation Counsel, of counsel), for appellant.
    Don J. Rizzi, of Chicago, for appellee.
   MR. PRESIDING JUSTICE DEMPSEY

delivered the opinion of the court.

This is a declaratory judgment action in which the plaintiff seeks to construct an apartment building prohibited by a zoning ordinance of the City of Chicago. The trial court found the ordinance invalid as applied to the plaintiff’s property, and the City appeals.

The property is held in trust and the beneficial interest is owned by a practicing attorney of wide experience in real estate appraisals and development. The beneficiary had bought and sold other property in the same vicinity including a three-apartment building a block away. He bought the subject property knowing that it was zoned R4. The R4 classification sets minimum lot area requirements per dwelling unit which would permit a twenty-two-apartment building on the plaintiff’s property.

The beneficiary testified that after purchasing the property in 1965 for $35,000 to $40,000, including delinquent taxes, he contacted a number of lending institutions, but was unable to obtain financing for a building conforming to the R4 requirements. He said he was able, however, to obtain financing for a building permitted by an R5 classification, which would allow a larger number of apartments. He applied to the Chicago City Council for an R5 zoning amendment, but the amendment failed to pass. The trustee then brought this action.

The property is a vacant lot, approximately 164 feet wide and 122 feet deep, located at 6431-6445 South Champlain Avenue, Chicago. The lot is in the center portion of a square-shaped area of land zoned R4. Champlain is a north-south street and the R4 zoning extends approximately 11/2 long blocks to the north, about 2% long blocks to the south, about 2% short blocks to the east and about 41/2 short blocks to the west. Most of the residential buildings in the area were constructed thirty to fifty years ago. There are also a few buildings of recent construction. Bounding all sides of the R4 area, with only minor exceptions, is business and commercially zoned property.

The buildings in the immediate vicinity of the plaintiff’s lot are single-family residences, two, three and four-apartment buildings and a few with a greater number of apartments. None of the buildings is over three stories high and the largest has fifteen dwelling units. The plaintiff proposes to erect a five-story building with fifty dwelling units.

The plaintiff advances several arguments in support of its contention that the R4 classification is arbitrary and unreasonable: (1) some other buildings in the neighborhood have a density exceeding the R4 limitation; (2) the land has always been vacant and cannot be economically developed as presently zoned; (3) the market value of the property will be enhanced if the R4 restriction is lifted and (4) the surrounding neighborhood will not be significantly depreciated by the addition of a fifty-apartment building. The plaintiff also argues that the findings of the trial judge were not against the manifest weight of the evidence.

The principal controversy between the parties concerns the impact the proposed building would have on the population density of the neighborhood. Intensity of use is a proper element of zoning. Cosmopolitan Nat. Bank of Chicago v. City of Chicago, 22 Ill2d 367, 176 NE2d 795 (1961); Exchange Nat. Bank of Chicago v. City of Chicago, 28 Ill2d 341, 192 NE2d 343 (1963). At the time the issue was joined in this case and when the judgment was entered, the R4 classification required not less than 900 square feet of lot area per dwelling unit, not less than 450 square feet for each efficiency unit and not less than 450 square feet for each lodging room. An R5 classification required not less than 400 square feet of lot area per dwelling unit, not less than 265 square feet for efficiency units and not less than 200 square feet for lodging rooms. No more than 50 percent of the apartments in a building could be efficiency units. Municipal Code of Chicago, 1967, c 194A, §§ 7.5-4, 7.5-5, 7.5-6.

The plaintiff’s expert witnesses were of the opinion that the neighborhood’s density would not be materially affected by the proposed fifty-apartment building; that several of the present buildings have a higher density than permitted under the R4 classification and that a fifty-apartment building would be congruous with these uses. The City admits that at least two buildings in the immediate area have a density in excess of the R4 limitation, but points out that these, as well as the others referred to by the plaintiff’s witnesses, are — as admitted in the plaintiff’s complaint — legal, nonconforming uses, having been in existence years before the current zoning ordinance was enacted. The City’s expert witness testified that construction of the plaintiff’s building would depreciate surrounding property because of population crowding; that traffic on narrow Champlain Avenue would become congested and the street hazardous to children, and that existing facilities such as sewers would be overextended. Another expert witness for the City testified that the community had been designated by the City as an official conservation area for which plans were to be drawn by the City’s Department of Urban Renewal. Although he stated that a fifty-apartment building would be compatible with the area’s nonconforming uses, it was his opinion, from a City planning viewpoint, that the zoning should remain as it was until the department completed its plans.

A nonconforming use is one that does not comply with the regulations of the zoning district in which the use is situated. The lawful use of a building existing at the time a zoning ordinance is adopted may be continued. Jacobson v. Village of Wilmette, 403 Ill 250, 85 NE2d 753 (1949). The Chicago zoning ordinance permits legal nonconforming uses. The intent of this legislation is to restrict such uses and to effect their gradual elimination. The ordinance imposes restrictions and limitations to this end. Section 6.1, et seq. The nonconforming uses in the present case are a factor to be considered, but they are not cause for the invalidation of the ordinance. The legislative judgment, expressed in the passage of the ordinance and reaffirmed in the rejection of the amendment requested by the plaintiff’s beneficiary, was that an R4 density was best for the community. The legislative purpose of preventing further nonconforming uses in the community is not unreasonable.

The beneficiary and the expert witnesses who appeared for his side of the case testified that the property with the R4 zoning was worth no more than $15,-000, but would be worth as much as $55,000 if an R5 development were permitted. The beneficiary, whose law practice is concentrated on real estate matters, testified that the property cost him between $35,000 and $40,000. He made this expenditure after surveying the neighborhood and learning that there was no R5 zoning in the area and that none was permitted. The position he now claims as a hardship — the inability to develop economically a piece of property that has always been vacant — was knowingly assumed. A higher value for land is the usual concomitant to zoning laws permitting greater density. While the value of property is a factor to be considered in determining the reasonableness of a zoning ordinance, under the circumstances of the present case it does not mean that the R4 classification is arbitrary or unreasonable. Compare Maywood Proviso State Bank v. Village of Berkeley, 55 Ill App2d 84, 204 NE2d 144 (1965).

There is a presumption of law that a zoning ordinance is valid. This presumption can be overcome only by clear and convincing evidence. It is not enough for one seeking to invalidate an ordinance to show that the property could reasonably be zoned otherwise than it is. It must be shown that the legislative classification is arbitrary and unreasonable and has no substantial relation to the public health, safety, morals and welfare. Chicago & N. W. Ry. Co. v. City of Des Plaines, 97 Ill App2d 201, 240 NE2d 280 (1968). A paramount consideration in determining the validity of a zoning ordinance is whether or not" the subject property is zoned in conformity with surrounding uses and whether those uses are uniform and established. River Forest State Bank & Trust Co. v. Village of Maywood, 23 Ill2d 560, 179 NE2d 671 (1962). Except for the two admitted, and the claimed but disputed other legal nonconforming uses, the R4 use in the area adjacent to the plaintiff’s property is established and uniform. The plaintiff’s property is zoned in conformity with this surrounding use.

Finally, the plaintiff argues that the trial court’s findings were not against the manifest weight of the evidence. Although this rule of appellate judgment has been stated in numerous zoning cases (see e. g., Standard State Bank v. Village of Oak Lawn, 29 Ill2d 465, 194 NE2d 201 (1963); Atkins v. County of Cook, 18 Ill2d 287, 163 NE2d 826 (1960); Kioutas v. City of Chicago, 59 Ill App2d 441, 208 NE2d 587 (1965)) it does not always have the same force in zoning cases as it does in other litigation. The overriding consideration in zoning cases is whether the presumptive validity of the ordinance has been overcome and there is, therefore, a dimension of proof not required in most nonzoning litigation. The determination of zoning classifications is a legislative rather than a judicial function and all zoning cases hold that the presumption of validity which accompanies the legislative judgment must be overcome by clear and convincing evidence.

In the present case, the plaintiff has not sustained its burden of proof. It has not shown that the R4 zoning is arbitrary and unreasonable and without substantial relation to the health, safety, morals and welfare of the public. Accepting the plaintiff’s evidence in its strongest light, the best that can be said for it is that the reasonableness of the City’s judgment is debatable. The classification must, therefore, be upheld. Bredburg v. City of Wheaton, 24 Ill2d 612, 182 NE2d 742 (1962); People ex rel. Selvaggio v. Village of River Grove, 68 Ill App2d 383, 216 NE2d 218 (1966).

Judgment reversed.

Reversed.

SCHWARTZ and McNAMARA, JJ., concur.


author: JUSTICE LYONS.

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Joseph P. Olejniczak, Defendant-Appellant.
    Gen. Nos. 52,750, 53,233.
    First District, Second Division.
    October 13, 1970.
    Robert P. Brandenburg and Melvin Saul Cahan, of Chicago, for appellant; Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer G. Kissane and Arthur L. Belkind, Assistant State’s Attorneys, of counsel), for appellee.
   Opinion by

JUSTICE LYONS.

Not to be published in full.