text:
    People of the State of Illinois, Plaintiff-Appellee, v. Thomas L. Hill, Defendant-Appellant.
    Gen. No. 53,615.
    First District, Fourth Division.
    March 11, 1970.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Herbert Becker, Norman W. Fishman, and James J. Doherty, Assistant Public Defenders, of counsel), for appellant.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Richard Zulkey, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE LEIGHTON

delivered the opinion of the court.

After waiving trial by jury, defendant was found guilty of theft of an automobile and sentenced to serve not less than two nor more than three years. He appeals. The only issue in this court is whether defendant was proven guilty beyond a reasonable doubt.

On April 15, 1968, David M. Cargill, 3811 North Hermitage, Chicago, was the owner of a white 1963 Chevrolet Corvette. About 6:00 in the evening he parked, locked and left the car in front of his house. The next morning when Mr. Cargill looked, the car was gone.

April 17, 1968, at about 11:45 p. m. three Chicago policemen were in an unmarked 1965 Plymouth automobile. They were in civilian dress. They saw a white Corvette traveling west on 85th Street and then north on Elizabeth at a high rate of speed. The officers followed the car, curbed it under a streetlight at 8240 South Elizabeth and turned on a high-intensity lamp that had the capacity to light up a city block. A man got out of the Corvette, crossed from the west to the east side of Elizabeth, turned and laughed at the officers saying, “Officer, you have your headlights out.” When he spoke, the man was about 30 feet from the officers. He then ran up a well-lit gangway, and escaped the pursuing officers by running east on 83rd Street. According to Officer James Martin Dewan, who testified for the prosecution, the man was the defendant Thomas L. Hill.

Officer Dewan and his fellow policemen returned to the Corvette; and after a check, discovered it was the stolen vehicle of David M. Cargill. The car was driven to a Chicago police station, where it was claimed by its owner during the early morning hours of April 18. A short time later defendant was arrested and indictment followed. At his trial, two witnesses testified for the prosecution; David M. Cargill and Officer Dewan. Defendant did not testify; nor did he offer any evidence.

To support his contention that he was not proven guilty beyond a reasonable doubt, defendant argues that he was not properly identified and that his conviction based thereon is therefore unconstitutional and void. The predicate for this argument is the testimony of Officer Dewan, who identified defendant in court. Defendant points out that Dewan did not arrest him until some time after April 18 at a hospital, where he was being treated for gunshot wounds. No lineup was conducted by the police; and this, defendant argues, made the in-court identification worthless.

This argument seeks to avoid the importance of Officer Dewan’s testimony which described how he and his two fellow officers followed the white Corvette northbound on Elizabeth until it was curbed. Dewan said that from the time the officers first saw it, they kept the car in view, not more than 40 feet in front of them. The man whom he identified as the defendant was no more than 30 feet in front of them when he alighted from the stolen vehicle. Dewan said defendant stopped, looked at them and spoke. Focused on defendant at the time was a high-intensity lamp capable of brightly lighting a city block. Defendant then ran up a well-lit gangway with the officers in pursuit. When he testified on direct, Officer Dewan attempted to say, and on cross-examination explained, that he and his fellow officers had with them a picture of the defendant from which they recognized him. The cross-examination did not shake Officer Dewan from his testimony. Defendant complains that Officer Dewan’s identification testimony was not based on a police lineup.

Our law does not require a lineup to insure identification of a defendant. People v. Brinkley, 33 Ill2d 403, 211 NE2d 730; People v. Sutton, 110 Ill App2d 232, 249 NE2d 215. It is true that an identification procedure can be so suggestive and conducive of mistaken identity that it will deny defendant due process of law. Stovall v. Denno, 388 US 293, 18 L Ed2d 1199, 87 S Ct 1967 (1967); People v. Bey, 42 Ill2d 139, 246 NE2d 287. However, the record before us shows that Officer Dewan saw defendant and recognized him at the time of the chase. The identification testimony of Officer Dewan is not subject to defendant’s constitutional attack. People v. Cook, 113 Ill App2d 231, 252 NE2d 29.

It is well established that in a case tried without a jury, determination of the credibility of the witnesses and the weight to be given their testimony is committed to the trial judge. People v. Garrett, 113 Ill App2d 63, 251 NE2d 749. The positive identification of one credible witness, as is the case here, is sufficient for conviction. People v. Boney, 28 Ill2d 505, 192 NE2d 920; People v. Moore, 104 Ill App2d 343, 244 NE2d 337. The testimony of Officer Dewan adequately meets these tests.

Defendant next argues that he was not proven guilty beyond a reasonable doubt because Officer Dewan was impeached by his testimony before the Grand Jury. Officer Dewan was cross-examined about what he told the Grand Jury concerning the events on which he based his identification of the defendant. It appears that before the Grand Jury, Officer Dewan did not describe the use of the high-intensity lamp about which he testified at trial. Instead, he emphasized the photograph he and his fellow officers had which he said was a factor in his identification of the defendant.

Additionally, defendant seizes on the fact that in his trial testimony, Dewan admitted he could not describe the clothing defendant wore except to call it casual. These features of Officer Dewan’s testimony, defendant argues, make the identification evidence so unsatisfactory that it raises a reasonable doubt of defendant’s guilt.

The sufficiency of identification testimony is ordinarily a question of fact; and the trial court’s findings will not be upset on review unless the testimony is so unsatisfactory that it creates a reasonable doubt concerning guilt of the accused. People v. Brown, 86 Ill App2d 163, 229 NE2d 922. Minor discrepancies in the testimony of a witness go only to the weight to be given that testimony. People v. Parker, 98 Ill App2d 146, 240 NE2d 475. It is our judgment that Officer Dewan’s testimony was not unsatisfactory; that the evidence leaves no reasonable doubt of defendant’s guilt. Judgment is affirmed.

Judgment affirmed.

DRUCKER and ENGLISH, JJ., concur.


source: Caselaw Access Project

author: MR. PRESIDING JUSTICE STAMOS

license: Public Domain

text:
    Francis W. Flanagan, et al., Plaintiffs-Appellees, v. Justin Hulman, as Commissioner of Savings and Loan Associations of Illinois, Defendants-Appellee, Consolidated with Justin Hulman, as Commissioner of Savings and Loan Associations of the State of Illinois, Plaintiff-Appellee, v. Marshall Savings and Loan Association, Defendant-Appellee, Consolidated with Marshall Savings and Loan Association, Plaintiff-Appellee, v. John R. Henson, et al., Defendants-Appellees, LaSalle National Bank, Trustee Under Trust No. 32572, Rodney Griffiths and Richard L. Byrnes, Appellants.
    Gen, No. 54,723.
    First District, Fourth Division.
    March 11, 1970.

      Russell Topper, of Chicago, for appellants.
    Thomas R. Mulroy, Robert Patterson, Michael E. Phenner, Barnabas F. Sears, and Gerald M. Sheridan, Jr., of Chicago, for appellees.
   MR. PRESIDING JUSTICE STAMOS

delivered the opinion of the court.

The LaSalle National Bank, Trustee under Trust No. 32572, Rodney Griffiths, and Richard L. Byrnes, objectors below, appeal the order of the Circuit Court denying them leave to file a Motion to Vacate the Consent Decree entered in consolidated causes 65 CH 456, 65 CH 1875 and 65 CH 3955.

Certain appellees have moved in this court for entry of an order dismissing the appeal of the aforementioned objectors.

The consolidated causes represented a financial institution custody case (65 CH 456), a liquidation case (65 CH 1875), and an interim receiver case (65 CH 3955), all in relation to the management and disposition of assets of Marshall Savings and Loan Association.

On October 8, 1969, all parties to the three causes filed a joint petition in the Circuit Court praying that: (1) the cases be consolidated pursuant to section 51 of the Illinois Civil Practice Act; (2) the cases, as consolidated, be treated as a class action pursuant to section 52.1 of the Illinois Civil Practice Act and (3) the Uninsured Depositors and Minority Shareholders of Marshall be notified that the principal parties in the consolidated causes proposed to dismiss the cases pursuant to a Settlement Agreement entered into on August 28, 1969, and ratified by members of Marshall on September 30, 1969, by a vote of 1,508,004 to 18 and that until November 10, 1969, written objections could be filed with the Clerk of the Circuit Court. The trial court issued an order in conformity with the requests of the petition.

On November 10, 1969, appellants filed a written objection to the consolidated proceedings praying that the proposed settlement be denied approval and that a full trial upon the issues of custody and receivership be had. The objection alleged that LaSalle, as trustee, was the owner of a certain piece of realty consisting of 112 town houses obtained from Marshall via a written sales contract dated August 31, 1964; that on March 28, 1966, Donald D. Swope, acting as Marshall’s receiver, gave notice that the sales contract was unilaterally repudiated ; that in September, 1966, Swope filed a declaratory judgment action seeking to have the sales contract declared void; and that the objectors counterclaimed therein for unlawful repudiation of a valid contract and are now seeking to amend their answer in that cause to raise issues concerning the legality of the appointment and office of Swope as Marshall’s receiver and seizure by the Director of Financial Institutions of the State of Illinois. The objection further alleged unlawful acts by public officials in relation to the custody and receivership of Marshall and a public interest in the full determination of the issues presented in the consolidated causes.

On November 17, 1969, the trial court entered an order dismissing the above objection on the grounds that the objectors were not members of the classes authorized by the order of October 8, 1969, to file objections and that they had no other independent standing. On November 20, 1969, the court entered the Consent Decree dismissing the consolidated causes and implementing the Settlement Agreement, after the F.S.L.I.C. filed (and the court approved) its obligation to assume Marshall’s liabilities.

On December 22, 1969, the objectors moved to file a Motion to Vacate the Consent Decree alleging in substance the same matter as the original written objection and further alleging that on December 12, 1969 the objectors, as respondents in cause No. 66 CH 5498, Swope v. Griffiths, et al., were denied leave to file an amendment to their answer which would have raised the alleged wrongful acts of the custody and receivership of Marshall and were, therefore, precluded trial on these issues. The motion further alleged an impairment of creditors rights by the Settlement Agreement and prayed for an order to vacate.

The trial court denied the motion for leave to file the Motion to Vacate on the ground that the movants had no capacity or standing, since they were not parties and had not sought to become parties by intervention or otherwise. Movants appealed from the Consent Decree below and certain appellees have moved for entry of an order dismissing the appeal.

OPINION

The issues, as succinctly stated in objectors’ Memorandum in Opposition to Emergency Motion to Dismiss Appeal, is whether, “being nonparties, they have such interest in the judgment as to be prejudiced by it or benefited by its reversal.”

Objectors contend that the nature of their interest in the judgment is as claimants to $2,000,000 in their counterclaim against Donald D. Swope, Marshall’s receiver, and as owners and possessors of the town house realty sought by Swope to be listed as an asset of Marshall. They further contend that this interest is prejudiced by the Consent Decree since it forecloses a determination of the issue of the validity of the appointment of receivers of Marshall which bears directly on their right to retain ownership and possession of the town house realty. They further argue that since their amended answer in Swope v. Griffiths, et al., No. 66 CH 5498, which would have raised the issue of validity of the receiver’s appointment, was disallowed, a failure in the present cause to determine the issue constitutes a final bar to adjudication of it.

The objectors also contend that a reversal of the Consent Decree would benefit them by allowing a judicial determination of the legality of the receiver’s appointment which in turn bears directly on their property rights. A reversal, they say, would also retain continued judicial supervision of the assets pending the outcome of the litigation which would insure protection of their superior rights as creditors against the stockholders.

The applicable standard for determination of whether nonparties have standing on appeal is whether they have a direct, immediate and substantial interest in the subject matter, which would be prejudiced by the judgment or benefited by its reversal. City of Alton v. County Court, 16 Ill2d 23, 156 NE2d 531 (1959) ; Upper Lakes Shipping, Ltd. v. Seafarers’ International Union of Canada, 40 Ill App2d 392,189 NE2d 753 (1963).

The objectors have failed to show the requisite interest in the present suit. The contention that the Consent Decree is a final bar to adjudication of the legality of the appointment of Swope as receiver is not correct, since appellants, not being parties to it, are not bound by it.

Likewise, the objectors would not be benefited by a reversal of the judgment. The contention that continued judicial supervision will provide greater protection of their rights as alleged creditors overlooks the fact that the F.S.L.I.C., an agency of the U. S. Government, Marshall’s successor in interest which now will be liable for all liabilities, has much greater financial resources which will be available to claimants of Marshall.

This appeal is therefore dismissed.

Appeal dismissed.

DRUCKER and ENGLISH, JJ., concur.

       The parties to the agreement include:
      (1) The Federal Savings and Loan Insurance Corporation (F.S.L. I.C.) which had paid over $84,000,000 in insurance to depositors of Marshall as of July 31, 1969; (2) the Commissioner of Savings and Loan Associations of the State of Illinois (Commissioner); (3) all the present directors of Marshall; (4) National American Life Insurance Company (National American), the owner of 643,071 of the 726,000 permanent reserve shares in Marshall; (5) and the officers and directors of the Uninsured Depositors Committee of Marshall.
      In outline, the agreement provided that on dismissal of the Marshall litigation the F.S.L.I.C. will pay:
      (1) the full face value of all uninsured deposits evidenced by certificates of interest amounting to over $2,800,000 and involving a large number of depositors; (2) $670,000 to National American for its 643,071 permanent reserve shares in Marshall; and (3) the par value of $1 per share to the remaining permanent reserve shareholders. The agreement specifically provides that no attorneys fees shall be paid by the Uninsured Depositors or minority permanent reserve sharesholders. In addition, it was agreed that all assets of Marshall be conveyed to F.S.L.I.C., subject to F.S.L.I.C. assuming all liabilities of Marshall.


author: MR. JUSTICE ADESKO

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Walter Jordan, Defendant-Appellant.
    Gen. No. 52,112.
    First District, First Division.
    March 16, 1970.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (James J. Doherty, Assistant Public Defender, of counsel), for appellant.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Morton E. Friedman, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE ADESKO

delivered the opinion of the court.

Defendant appeals from a judgment after a jury verdict by which he was found guilty of rape. The trial judge sentenced him to serve a term of not less than 16 years nor more than 20 years in the Illinois State Penitentiary. Defendant raises four issues on appeal.

1. The trial court’s refusal to order certain statements allegedly made by the State’s witnesses to be produced at the trial;

2. Improper instructions to the jury;

3. Improper closing arguments of the State’s Attorney; and

4. Excessive sentence.

At noon on November 13, 1965, the prosecutrix, Susan Wood, a student at Lake Forest College and a tutor at Booth Settlement House, took two of her pupils to their families. She went with them to the lobby of a nine-story apartment building at 2240 South State Street, Chicago, where one of the students lived. While waiting there for the elevator to take her to the eighth floor she saw two men, one of whom was Walter Jordan, the defendant. Jordan put his arms around her but let go after Miss Wood protested. The two men got off on the fifth floor. Miss Wood and her students continued to the eighth floor where one of the students got off. As Miss Wood and the other student were coming down, the defendant entered the elevator on the fifth floor. The elevator went back to the eighth floor, where Jordan pushed Susan Wood out of the elevator and to the stairway where the other man was waiting. Defendant then dragged her to the stairwell and pulled off her underclothing. She screamed but he silenced her by putting his hand over her mouth. Her student did not help her. Defendant then attempted to have sexual intercourse with her while holding a knife to her throat. He and the other man then pulled her to the landing on the seventh floor, where defendant raped her.

At this time, Kenneth Danielley, the building janitor, came out after hearing Miss Wood. He encountered the defendant on the seventh floor and observed that defendant’s pants were around his knees. As Jordan ran, his pants fell off. The fight and chase continued outside until Jordan was subdued. In the meantime, Miss Wood ran to the apartment of her student on the eighth floor, where she called the police. Officer Fred Harris took the defendant into custody. Miss Wood was taken to a hospital where she was attended by a doctor who observed a tear in her hymen and bruises about the genital area.

The defendant contends that the trial court should have compelled the prosecution to produce the writings made by the police as they interrogated the various witnesses who testified for the State. It appears that the written reports of Officer Fred Harris and of the examining physician, Dr. Rajaj Dajani, were given to the defendant’s counsel. There is no evidence that any other written statements made by the other witnesses were in existence. Defendant cites certain decisions of the Illinois Supreme Court and Appellate Court. The facts in these cases are dissimilar and none of them apply to the instant case. The trial judge questioned the witness and the State’s Attorney as to whether there were any statements and upon learning that there were none, denied the defense motion for the production of such nonexistent statements. The trial court stated:

“The Court denies the request because there has been no foundation. This sole purpose of the production of said statement is impeachment of the witness. If it is not a verbatim statement, the witness would have to adopt either by authorship or reading of it or some other method of adoption. The witness cannot be impeached by a writing of somebody else.”

We are also following the language of People v. Najera, 75 Ill App2d 127, 221 NE2d 136 (1966):

“The prosecution is required to furnish on demand to defendant for impeachment purposes specific statements in its possession made by a State’s witness which have been established to exist and which are in the witness’ own words or substantially verbatim.” (P 131.)

Defendant contends that the instructions given by the court were repetitive, weakened the presumption of defendant’s innocence and exaggerated State’s evidence, giving it an improper basis for defendant’s guilt. There were eight instructions with which defendant finds fault. He cannot object to the State’s instructions 1, 2, 3 and 7 at this time, having made no objections to them at the time of the trial. Instruction No. 11 is objected to because the court failed to give the jury a definition of the term “felony” in that instruction. We believe the instruction was clear and understandable and in no way prejudicial to the defendant. Instruction No. 16 was given over defendant’s objection yet the defendant, in his brief, considers instruction No. 16 proper.

Instructions Nos. 13 and 15 are objected to because they are duplicative. Instruction No. 13 stated: “The court instructs the jury that to constitute the offense of rape it is not necessary that the defendant have an emission.” Instruction No. 15 quoted the statutory definition of rape including the following language: “. . . sexual intercourse occurs when there is any penetration of the female sexual organ by the male organ.” Defendant contends that instruction No. 15 was improper because having been given instruction No. 13, it was duplicative and explanatory of No. 15 and, therefore, tonfusing to the jury. We fail to see where there could be any confusion.

Defendant also contends that in the closing argument, the State’s Attorney accused defendant’s counsel of asking questions which were aimed solely to confuse the jury. Defense counsel did not object to the statements at the time they were made and cannot allege error for the first time on appeal. Our reading of the closing argument does not convince us that these remarks were prejudicial or deprived the defendant of a fair trial. “Moreover, reversal is not warranted unless it appears that the improper remarks complained of influenced the jury in a manner that resulted in substantial prejudice to the accused.” People v. Stahl, 26 Ill2d 403, 406, 186 NE2d 349 (1962); People v. Berry, 18 Ill2d 453,165 NE2d 257 (1960).

Defendant contends further that the sentence is grossly excessive. We are reluctant to disagree with the sentence of a trial judge which is within the statutory limits as punishment for the crime involved. The codefendant was tried separately and pleaded guilty. Both defendants were found guilty of the same crime. The codefendant was sentenced to a term of six to ten years. It is our opinion that justice requires that the sentence of 16 to 20 years imposed upon Walter Jordan be reduced and he be sentenced to the Illinois State Penitentiary for a term of ten to fourteen years.

Sentence modified and judgment affirmed.

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


text:
    The Metropolitan Sanitary District of Greater Chicago, a Municipal Corporation, Petitioner-Appellee, v. Industrial Land Development Corporation, an Illinois Corporation, Defendant-Appellant (Respondent).
    Gen. No. 52,414.
    First District, First Division.
    March 16, 1970.

      James G. O’Donohue and Joel Murray, of Chicago, for appellant.
    Allen S. Lavin, General Attorney, Foran & Wiss, Special Attorneys, of Chicago (Robert E. Wiss, of counsel), for appellee.
   MR. JUSTICE ADESKO

delivered the opinion of the court.

The Metropolitan Sanitary District of Greater Chicago started eminent domain proceedings to acquire a parcel of property containing approximately 73 acres. This property is located in the Village of Riverdale, at 138th and Halsted Streets. The issue of compensation was tried before a jury and a verdict was rendered fixing the award at $450,000, upon which verdict the court entered judgment. The respondent appeals, seeking a new trial on the issue of just compensation.

The subject parcel of real estate is an irregularly shaped tract of approximately 73 acres, containing a deep clay pit of approximately 47 to 50 acres of the total tract, the depth of which is an average of some 30 feet below grade. The volume of the void within the pit area is between 2,272,500 and 2,400,000 cubic yards of space. The 23 to 26 acres of the tract outside the pit is land at grade improved with buildings of new value and four kiln chimneys which were formerly used by the prior owner for a brick manufacturing business.

Respondent presents six issues for review. First, the testimony of the witness Harry L. Shlaes was not stricken by the court. Shlaes testified that the property in question was zoned for light manufacturing and commercial uses and such zoning was one of the elements he took into consideration in his opinion of fair cash market value of the property. Other evidence established that the property was partially zoned for industrial and not commercial uses. Shlaes testified that in his opinion the fair cash market value for its highest and best use on July 6, 1966, was $365,000. Respondent argues that Shlaes considered an erroneous and improper element in determining value. However, Shlaes in answering counsel’s question as to what factors he took into consideration said:

“The general area in which the property is located; the transportation, public transportation to the area; the road access, which is good; two major thoroughfares there; the fact that it is a corner; the zoning, the highest and best use to which it could be put under that zoning; the fact that there were 73 acres of ground; the fact it was trapezoidal in shape; the fact that 47 acres were dug out to a depth of an average of approximately 30 feet and my knowledge of the market gained over the past almost forty years.”

It has been held in Illinois that anyone who is acquainted with the property being condemned and has knowledge of value is competent to testify. The question of the degree of his experience or extent of knowledge is one of weight and not of competency. The Illinois Supreme Court has specifically held that differences in zoning does not render other types of evidence of value inadmissible. City of Evanston v. Piotrowicz, 20 Ill2d 512,170 NE2d 569 (1960).

“In our opinion, as applied to the facts in the instant case, the existence of zoning dissimilarity does not constitute such a degree of dissimilarity as to render the evidence of such sales incompetent.” (Pp 522-23.)

Respondent calls our attention to City of Chicago v. Lord, 276 Ill 533, 115 NE 1 (1917). This was a condemnation case in which 42 feet of Lord’s property was taken for widening of a street. Witnesses for the City were permitted to testify that the remainder of the lot would still be a comer lot and would possess a substantial value. The Supreme Court in reversing the trial court said:

“This was an improper element to consider in determining the value of the property taken. Appellants were entitled to the actual value of the property taken, without regard to the effect, if any, the proposed improvement would have upon the part of the lot not taken.” (P 536.)

In City of Chicago v. Giedraitis, 14 Ill2d 45, 150 NE2d 577 (1958), the court held that valuation based upon future rental income was improper. In City of Chicago v. Central Nat. Bank, 5 Ill2d 164, 125 NE2d 94 (1955), the testimony of a witness who based his valuation upon the amount of business being done on the premises was held to be speculative and an improper basis for valuation.

We find that the remaining cases cited by respondent have no relevance to the issues involved in the case under consideration. Sole reliance on an improper element of damage in an eminent domain case is objectionable. Witness Shlaes testified as to all the elements he considered in reaching his valuation figure. As has been stated before, anyone acquainted with the property being condemned and has knowledge of value, is competent to testify. The degree of his experience and extent of knowledge is one of weight and not competency.

Respondent relies on Department of Public Works and Buildings v. Drobnick, 14 Ill2d 28, 150 NE2d 593 (1958). In applying the Drobnick case, respondent indulges in suppositions which are not present in the court’s decision. Drobnick does not involve a question of the effect of consideration of an improper zoning by a witness. The specific question in that case was the right of the petitioner to reopen the case. In Drobnick, the court said, at page 35:

“We have repeatedly held that where the evidence as to value is conflicting in a condemnation proceeding, and the jury, having viewed the premises, fixes the amount of the compensation for land taken and of damages to land within the range of the testimony, the award will not be disturbed unless there is something in the record which shows that the verdict was a clear and palpable mistake or the result of passion and prejudice, or unless there was some erroneous ruling which might have misled the jury.”

In Forest Preserve Dist. v. Krol, 12 Ill2d 139, 145 NE2d 599 (1957), at page 145, the court said:

“The jury had before it a full description of the property and knew the use to which it had been put. They heard all of the witnesses and observed their demeanor on the stand. They viewed the premises. All of the appellee’s witnesses were competent, and the value to be accorded their testimony was a matter for the jury. (Kankakee Park Dist. v. Heidenreich, 328 Ill 198.) The $100,000 verdict was within the range of the testimony (a low of $82,500 to a high of $262,500, with a recent sales price of $75,000), and there is nothing to indicate they were influenced by prejudice or passion or that they made a clear and palpable mistake in so assessing just compensation. Dept. of Public Works and Bldgs. v. Finks, 10 Ill2d 15.”

Respondent next finds fault with the trial court’s admission of the sale price of the property in question some years prior to the filing of the petition to condemn without any showing that there had been no change in conditions or marked fluctuations in values since the sale of the property in question. Respondent urges that without the proper foundation, the sale price should not have been admitted, and that the respondent was prejudiced by its admission. The record shows that witness Shlaes testified he had known the property in question since 1959; that the same buildings were present as in 1959 through 1961; and that there were no substantial changes in the pit area of the property. He testified that he took into consideration the market value over the past 40 years. Another witness for the petitioner, Clem Mulholland was asked: “Has there been any substantial change in the market in this particular area around Chicago between 1960 and the present date? . . . .” He answered: “In my opinion there has been no substantial change.”

In Nichols on Eminent Domain (3rd Rev ed 1969), Vol 5, § 21.2, it is stated:

“The general rule is that evidence of the price paid for property which is the subject of appropriation proceedings is admissible, if the following conditions are satisfied:
“ (a) The sale must be bona fide;
“ (b) The sale must be voluntary, not forced;
“(c) The sale must have occurred relevantly in point of time; and
“(d) The sale must cover substantially the same property which is the subject of the appropriation action.”

Remoteness in time alone cannot be considered. All the facts and circumstances of each case must be considered. Respondent directs our attention to the fact “that in today’s more complex world of population and industrial explosion, suburban growth and development, economic inflation and advanced transportation and communications, a new rule of law prohibiting the admission in evidence of a sale price four or five years remote, notwithstanding the facts and circumstances of the case, is both fair and necessary to protect landowners and to insure them the just compensation required by the Federal and State Constitutions when the property is taken by eminent domain.” Respondent offered some testimony as to the increased need, scarcity and value of pit property and holes in the ground. Respondent’s witnesses did not convince us that there is so-called “increased need and scarcity” as claimed by the respondent.

As to respondent’s objection that the petitioner failed to introduce the best evidence of the sale price or to properly account for the absence of same, the record unequivocably shows that petitioner’s witness John J. Waldron, who was the attorney for the seller and who attended the closing of the sale, knew the consideration paid. There is no question as to the accuracy of the price involved. The absence of the best evidence under the circumstances here involved in no way prejudiced the respondent.

We now come to the third point raised by the respondent that there was error in restricting the cross-examination of petitioner’s witness, Clem Mulholland, with respect to the income method of appraising. Mr. Murray, respondent’s attorney asked: “Did you appraise this property with an eye to the income method of appraising?” The answer was: “Yes, I did.” The next question, “How did you appraise the property with regard to the income method of appraising?,” was objected to and the trial judge sustained the objection. It has been held in Illinois that while an appraiser can consider different methods of appraisal, the separate values or results under such methods are not admissible and cannot be made the sole basis of valuation. Chicago Land Clearance Commission v. Darrow, 12 Ill2d 365, 146 NE 2d 1 (1957); Department of Public Works v. Pellini, 7 Ill2d 367, 131 NE2d 55 (1955).

Respondent’s fourth contention is that the trial court erred in striking the testimony of George C. Duffy, who stated that in his opinion it would take 12 years to fill the pit portion of the property here involved. The record reveals a lengthy discourse between both counsel and the trial judge relating to Duffy’s testimony but it does not show that the court struck this portion of his opinion.

As to the fifth contention, we find no error in permitting cross-examination of the witness George C. Duffy, as to the lease on the subject property. There was no testimony that the lease was between two corporations which were supposed to be owned and controlled by one family. Although this cross-examination was beyond the scope of direct examination and was not part of the case in chief, in eminent domain cases it is not improper to cross-examine a valuation witness on the factors he took into consideration in reaching his opinion of value. The Supreme Court stated in Spohr v. City of Chicago, 206 Ill 441, 69 NE 515 (1904), at 444-5:

“ ‘While, in the examination in chief, the expert can only be questioned in a general way . . . the cross-examiner is entitled in every instance to demand a free disclosure, minutely and in detail. . . Upon cross-examination, great latitude is allowed. . . . [A] large discretion is necessarily left to the trial judge. . . . [C]ross-examination should not be excluded on subjects . . . included in the examination in chief. . . . [S] o far as the cross-examination . . . relates either to facts in issue or facts relevant to the issue, it may be pursued as a matter of right.”

We do not believe that the jury was misled or confused.

Respondent also finds fault with the trial court’s refusal to give the jury the following respondent’s instruction No. 6:

“You are instructed that you may also take into consideration in determining the fair cash market value of respondent’s property, any special value shown by the evidence in connection with the highest and best use of the property on June 6, 1966.”

This instruction is not one listed or recommended in Illinois Pattern Instructions (Eminent Domain). The jury heard the opinions of experts as to the highest and best use of the land in question. The other instructions have advised the jury properly and adequately. We find no error in the refusal of the court to give this instruction.

It is our belief that this case was tried well and was free from error. The verdict is well within the limits of the testimony and is not the result of passion or prejudice.

The judgment of the Circuit Court of Cook County is affirmed.

Judgment affirmed.

BTJRMAN, P. J. and MURPHY, J., concur.


author: MR. JUSTICE MURPHY

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Larry B. Taylor, Defendant-Appellant.
    Gen. No. 53,486.
    First District, First Division.
    March 16, 1970.
    Rehearing denied April 6, 1970.

      Sheldon M. Schapiro, of Evanston, for appellant.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Michael D. Stevenson, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE MURPHY

delivered the opinion of the court.

In a bench trial defendant was found guilty of the offenses of rape and deviate sexual assault. He was sentenced to the penitentiary for a term of 8 to 20 years. Defendant admitted the acts but asserted consent of the prosecutrix. On appeal he contends (1) that he was not proved guilty beyond a reasonable doubt; (2) prejudicial trial errors were committed; and (3) that the State failed to prove venue.

On September 18, 1967, at about 8:30 or 8:45 p. m., the prosecutrix, age 16, was walking alone across the Ford City parking lot in Chicago to meet her boyfriend. Defendant pulled up in an automobile and asked what her name was and how long she had lived in the neighborhood, and she answered him both times. He then told her he had a gun and that she should get inside the car or he would shoot her. She saw an object in the crook of his arm that she took to be a gun. No one else was in the vicinity at that time. She testified, “I stood there. I didn’t know exactly what I should do. He told me to walk around in front of the car and get inside, otherwise he would shoot me. ... He said, ‘Just get in the car and shut up.’ And he said, ‘There is no need of screaming or yelling or running anywhere because no one will hear you.’ ” She complied with defendant’s order and got into the car, a 2-door dark maroon sedan with bucket seats in the front. She was made to sit on the floor in the front with her head on the seat.

The prosecutrix testified that they drove for quite awhile, during which time they had a conversation involving “love” and “metaphysics.” During the time they were driving they stopped at stop signs and stop lights, but she made no effort to get out of the car. They eventually stopped “somewhere out in open land,” where there was grass on either side of the car. Defendant then told her to take her clothes off, and she got out of the car and ran for about 100 feet until she was caught by defendant. He again told her to take her clothes off or he would rip them off, and she complied. He then told her to get in the back seat, and they had sexual intercourse. She made no effort to resist him. They got dressed and went into the front seat, where defendant grasped her neck and said, “You are going to do what I tell you to do,” and forced her to engage in an act of oral copulation as they were driving. They then stopped and defendant told her she could get out and go home. She got out of the car and they kissed goodby, defendant telling her that she was a real good girl and that if she went to the police they would take her to a hospital, and it might be embarrassing.

The prosecutrix was let out of the car near 79th and Kedzie, and at about 10:30 p. m. she entered a Chicago fire station in that vicinity to call her father. She told a fireman on duty that she had been raped. The police came to the fire station, and she was taken home and then to Holy Cross Hospital. Later that night she was taken to a police station, where she identified defendant.

The prosecutrix was extensively cross-examined. She said that she was about the same height as the defendant and weighed about 138 pounds. She never gave defendant permission to have intercourse with her, and in response to the question, “You made no physical resistance as such when he was having relations ?,” she answered, “I didn’t know how. I didn’t know what to do. ... I never had any training, nobody told me anything. All they said, don’t get into a situation like this, but nobody ever told me what to do if I got into a situation.” In response to the question, “Wouldn’t your natural instincts tell you to do something?,” she answered, “I don’t know what to say to that.”

The State’s witnesses included Peter T. Murphy, a Chicago fireman, and Police Officers Allman and O’Driscoll. Fireman Murphy testified that about 10:30 p. m. he was on duty in a fire station at 8026 South Kedzie. It was raining, and the prosecutrix walked into the station and asked to use a telephone. He asked her if something was wrong, and she said, “Well, I just want to call my father.” She was a little nervous, so he asked her if he could help her, and she said she had been raped. Officer Allman testified that he answered a call at the fire station. He took the prosecutrix home and then drove her and her mother to Holy Cross Hospital. Officer O’Driscoll testified that the prosecutrix gave him defendant’s credit card, which she found in the car, and then arrested defendant in his home.

It was stipulated that Dr. Smalley, if called to testify, would testify that he conducted an examination of the prosecutrix on September 18, 1967, and that spermatozoa was found in a smear test. It was also stipulated that there were no marks or bruises on the body of the prosecutrix, nor any torn clothing.

Defendant testified that he stopped his car where the prosecutrix was walking. He asked her name and where she was going, and she told him she was going to meet her boyfriend. He asked her if she wanted to take a ride with him. She said, “What do you want to do ?,” and he said, “Just drive around.” She said, “All right,” and got in the car. He had no gun at the time and did not use physical force to get her in the car.

Defendant said that when she got in the car she mentioned that she hoped no one who knew her would see her do this, so he suggested she get down on the floor. As they were driving he stopped many times, but she never attempted to get out of the car. They traveled for a period of thirty-five or forty minutes, during which time they discussed love, religion and metaphysics. He told her that he wanted to make love to her and that he could teach her something about love, and she said, “No, you can’t. I know already.” She then asked him if he was married, and he said no. When he stopped the car he kissed her, but she ran out of the car and stopped and turned around. She had a pleasant look on her face and walked back to the, car with him of her own free will. He did not drag her and used no force, and while they were having sexual intercourse she in no way resisted him and, in fact, was receptive.

When they were finished they drove back to a residential area close to Ford City. She made no attempt to get out of the car when they made stops. When they arrived in the area she kissed him and left. He told her that she had been very, very enjoyable that evening, and that he had enjoyed her company immensely and also her conversation. She mentioned that her father would be angry because she was arriving home so late,, and that “she would tell him that somebody forcefully picked her up in a car.” He told her not to do so because her father would call the police and she would be taken to a hospital, where there would be embarrassment.

Defendant’s wife, Elyce Taylor, testified she had been married to defendant for seven years and they had three children with “one on the way.” She said that when the police came to arrest defendant at their home, he was in a bedroom, undressed. The police searched the premises for a gun, but her husband did not have one and she never saw him with a gun.

Initially considered is defendant’s contention that the State failed to prove venue. Defendant argues that the prosecutrix testified that she was picked up by the defendant in the Ford City parking lot, and that she did not state that the parking lot was in Cook County. Also, she said that she entered defendant’s car at approximately 8:30 and entered the fire station at approximately 10:30 or 11:00. She further stated that defendant drove on a dirt road to some open land, where the intercourse took place. Defendant asserts that “within an hour [he] could have driven to Will, Kendall, Lake or DuPage County.” On this point the record shows the following:

Mr. Van Zeyl: “State rests its case in chief subject to a stipulation from counsel as to the age of the defendant and all of the events occurring in the City of Chicago, County of Cook and State of Illinois.”
Mr. Kalena: “Would you step up here, Mr. Taylor?”
The Court: “What is the age of the defendant?”
The Defendant: “30.”
The Court: “Stipulate the defendant is 30, stipulate all of the events occurred in the State of Illinois.”
Mr. Kalena: “This is off the record.”
The Court: “We will adjourn until 11:00 tomorrow morning.”

Defendant states that when the trial resumed there was no mention of the stipulation, and “nowhere in the record does the counsel for the defendant agree to stipulate that the events testified occurred in Cook County, Illinois,” and it was necessary that “the State prove beyond a reasonable doubt that the alleged rape took place in Cook County, Illinois, as alleged in the indictment.”

We find the evidence here was sufficient to show beyond a reasonable doubt that the offenses took place within the boundaries of Cook County. The prosecutrix testified that she was in the vicinity of the Ford City parking lot when she was picked up, and that she was dropped off in the vicinity of 79th and Kedzie. This court will take judicial notice of the fact that both locations are in Cook County, Illinois.

Next considered is defendant’s contention that the testimony of Fireman Murphy as to the prosecutrix telling him she had been raped was prejudicial hearsay. Defendant argues that her statement was not spontaneous but was elicited from her after two or three questions by the witness as to what had happened. Authorities cited include People v. Fryman, 4 Ill2d 224, 122 NE2d 573 (1954), and People v. Szybeko, 24 Ill2d 335, 181 NE2d 176 (1962). In People v. Szybeko, it was stated (p 339):

“Evidence that the prosecutrix made a complaint soon after the commission of the offense is indeed accepted for the purpose of corroborating her testimony, but to be admissible and to have corroborative value, the complaint must have been made voluntarily and not in response to questions and answers, and must have been a spontaneous outburst or expression of the prosecutrix’s outraged feelings, rather than a mere recital of past events.”

It is our opinion that the statement made by the prosecutrix immediately following the occurrence qualified as a spontaneous declaration, and it was admissible in full, including its corroborative value. The fact that the fireman asked the prosecutrix “if something were wrong” and “if I could help,” was insufficient to destroy its spontaneity and it comes within the guidelines of People v. Damen, 28 Ill2d 464,193 NE2d 25 (1963), where it is said (p 472):

“The fact that the officer asked complainant ‘what happened’ is, we believe, insufficient to destroy its spontaneity. People v. Harrison, 25 Ill2d 407.
“A second class of cases exists in which the complaints of rape victims have been admitted as corroborative statements. While statements qualifying under this rule may also be admissible as spontaneous declarations, statements by the prosecutrix as to what occurred, which are made at a time too remote to qualify as spontaneous declarations, a sufficient opportunity for ‘reflection and invention’ having intervened, may gain admission hereunder. . . . The basis of their admission is that it is entirely natural that the victim of forcible rape would have spoken out regarding it, and the fact that she did not do so would in effect be evidence of the fact that nothing violent had occurred. If proof of such complaints were not permitted, the judge or jury might naturally assume that no complaint was made, and it is for that reason the prosecution is allowed to forestall this assumption by showing that the woman was not silent and that a complaint was in fact made. Under the early rule of hue- and-cry, it was necessary that the complaint should have been freshly made, and many courts, in enunciating the modern rule, state that the complaint must have been recent in order that the fact of its making may be admitted. . . . Our decisions have generally required that the complaint be promptly made, . . . but we have also admitted proof of complaints made some two months following the occurrence where the interval of delay was satisfactorily explained.”

We hold that the testimony of Peter Murphy was properly admitted in full.

Finally considered is defendant’s contention that he was not proved guilty beyond a reasonable doubt, and that the testimony of the prosecutrix was not clear and convincing and was totally uncorroborated. He argues that the State failed to prove that the act of sexual intercourse admitted by defendant was by force and against the prosecutrix’s will. He notes that the only testimony that defendant had a gun was by the prosecutrix, and that she admitted that she did not see a gun. Also, there was no testimony that she received any threats of bodily harm or death after she entered the car, but that on the contrary the parties carried on a friendly conversation pertaining to love and metaphysics.

Defendant maintains that the following facts tend to show lack of force being used: (1) the failure of the police to find a gun in the possession of defendant; (2) the lack of bruises on the prosecutrix and the absence of torn clothing; (3) the testimony of the prosecutrix that she removed her clothing and got into the back seat herself; (4) the failure of the prosecutrix to resist or cry out during the act of sexual intercourse; (5) the impossibility of having sexual intercourse in a car with bucket seats without the help of the prosecutrix; and (6) the kiss the prosecutrix gave defendant upon their parting. Among the authorities cited are People v. Faulisi, 25 Ill2d 457, 185 NE2d 211 (1962); People v. Rossililli, 24 Ill2d 341, 181 NE2d 114 (1962); People v. Meyers, 381 Ill 156, 44 NE2d 870 (1942); and People v. Szybeko, 24 Ill2d 335, 181 NE2d 176. In People v. Faulisi, it is said (p 461) :

“When the charge is forcible rape, the fact that the act of intercourse was performed forcibly and against the will of the complaining witness is a necessary element of the crime which must be proved beyond a reasonable doubt. The degree of force exerted by the defendant and the amount of resistance on the part of the complaining witness are matters that depend upon the facts of the particular case. Thus we have held that resistance is not necessary under circumstances where resistance would be futile and would endanger the life of the female as where the assailant is armed with a deadly weapon, and that proof of physical force is unnecessary if the prosecuting witness was paralyzed by fear or overcome by superior strength of her attacker. ... It is, however, fundamental that in order to prove the charge of forcible rape there must be evidence to show that the act was committed by force and against the will of the female, and if she has use of her faculties and physical powers, the evidence must show such resistance as will demonstrate that the act was against her will.”

In People v. Szybeko, it is said (p 339):

“While it is firmly established that the uncorroborated testimony of a prosecutrix may be sufficient to convict if clear and convincing, ... it is equally well settled that where her testimony is not of such clear and convincing character, and the defendant denies the charge, her testimony should be corroborated by other evidence, facts or circumstances in the case.”

The State argues that the question of whether force was used was a matter for the determination of the trial court. It notes that whether or not defendant had a gun was immaterial, because it was sufficient to show that defendant wanted the prosecutrix to believe he had a gun. It also argues that defendant’s testimony was improbable and unconvincing, pointing out that it is incredible that the prosecutrix, who was going to meet

her boyfriend, would voluntarily change her plan and enter the car with a stranger; also, that it is incredible that the prosecutrix, after telling defendant that she had to be home by 10:00 p. m. would ask to be let off at 10:10 in rainy weather, far enough from her home to require carfare. Among the authorities cited are People v. Hill, 102 Ill App2d 77, 243 NE2d 491 (1968); People v. Jackson, 103 Ill App2d 209, 243 NE2d 551 (1968); and People v. Gray, 106 Ill App2d 110, 245 NE 2d 626 (1969). In People v. Jackson, the court said (p 218):

“Defendant argues that to prove the crime of rape against a female who has the use of her powers and faculties, the evidence must show such resistance as will demonstrate that the act was against her will; .... There is, however, no set and definite standard as to the degree of force or amount of resistance required. It is a determination which must be made from the facts and circumstances of each case. ... It is true that when the alleged victim retains the power to resist, voluntary submission, no matter how reluctantly yielded, amounts to consent. ... On the other hand, resistance is not necessary under circumstances where resistance would be futile and endanger the life of the female, as where the defendant is armed with a deadly weapon. Likewise, resistance is not necessary where she is so overcome by superior physical strength or paralyzed by fear that she would be powerless to resist her assailant.”

See, also, People v. Smith, 32 Ill2d 88, 203 NE2d 879 (1965).

We conclude the guidelines to be used on “failure to resist” or “voluntary submission” must be determined “from the facts and circumstances of each case.”

We think this case takes its tone from its inception. Defendant admitted the acts of intercourse and deviate sexual assault. In fact, defendant freely supplied many additional details of his own deviate conduct. The only substantial difference between the testimony of the prosecutrix and the defendant is what happened initially. An analysis of the testimony of the prosecutrix shows that she entered the car under the belief that the defendant was pointing a gun at her, and if she did not obey his instructions he would shoot her. There was no evidence that defendant at any time struck or attempted to strike her if she did not have intercourse with him or engage in oral copulation. The prosecutrix explains her failure to resist physically by testifying that she didn’t know what to do because she never had any training and “nobody told me anything.” When asked whether her natural instincts told her to do something, she replied, “I don’t know what to say to that.” The testimony of Fireman Murphy as to her statement that she had been raped indicates it was sufficiently spontaneous to be used in corroboration of her testimony.

The record demonstrates that although the prosecutrix was somewhat naive, there appears to be no reason for regarding any of her testimony as unworthy of belief. The credibility of her testimony was a matter for the trial judge, and the record shows that he paid particularly close attention to it and at several points had her testify in his chambers so as to avoid further embarrassment. In finding defendant guilty of the offenses charged, the trial judge remarked: “Under the facts, there will be a finding of guilty. Here is a girl sixteen years of age, and I believe her story that she was forced into the automobile against her will and that she was in fear. She said that the man said, T will shoot you if you don’t get in,’ and from there on in we had a young girl in fear and any will that she might have to overcome the sexual appetite of this man and what he testified to before me—a thirty-year-old man talking about love and religion. He was a wolf in sheep’s clothing all the way through this. Is there anything you have here in aggravation? . . . Well, it’s a very serious case, now the only saving feature of this case is that the girl wasn’t hurt in any way and that he didn’t strike her, that might be, but he surely overcame her will under all of the evidence here and this sixteen-year-old girl, I have to look at this in the light of her age, this is a good girl, so the persons who really are being punished here are the wife and the children and the expected child. We had a salesman who was selling his wares to the young girl in this case; so the sentence will be eight to twenty. You are hereby sentenced to Illinois State Penitentiary for a minimum of eight years and a maximum of twenty years.”

In a bench trial in a criminal case, the question of the credibility of the witnesses and the weight to be given their testimony is for the trial judge. “Where the truth lies, in any debatable set of circumstances, is a matter peculiarly for the determination of the trier of fact, be it judge or jury, and it is not for a reviewing court to substitute its opinion therefor.” In view of the opportunities of observation available to the trial court, its judgment should not be set aside by a reviewing court unless the proof is so unsatisfactory or implausible as to justify a reasonable doubt as to defendant’s guilt. People v. Woods, 26 Ill2d 582, 585, 187 NE2d 692 (1963); People v. Hill, 61 Ill App2d 16, 23, 208 NE2d 874 (1965); People v. Banks, 116 Ill App2d 147, 155, 253 NE2d 631 (1969).

Applying that test here, we hold that the trial court was presented with sufficient satisfactory and plausible proof on which to find defendant guilty of both offenses beyond a reasonable doubt. Therefore, for the reasons given, the judgment of the Circuit Court is affirmed.

Affirmed.

BURMAN, P. J. and ADESKO, J., concur.


author: MR. PRESIDING JUSTICE BURMAN

text:
    Lucille Younkins, Appellant, v. Galloway Younkins, a/k/a George Younkins, Appellee.
    Gen. No. 53,978.
    First District, First Division.
    March 16, 1970.

      Robert L. Tucker, of Chicago, for appellant.
    Aaron H. Payne, of Chicago, for appellee.
   MR. PRESIDING JUSTICE BURMAN

delivered the opinion of the court.

This is an appeal from an order entered in the Circuit Court denying the verified petition of the plaintiff, Lucille Younkins, to vacate and set aside a default divorce decree.

We will briefly outline the course of the litigation leading up to this issue. The plaintiff, Lucille Younkins, filed a complaint for divorce on February 27, 1967, on the grounds of cruelty. After a trial held on July 7,1967, she was denied a divorce and her complaint was dismissed.

On July 26, 1967, the Illinois Divorce Act, Ill Rev Stats, c 40, § 1, was amended to add mental cruelty as a new ground for divorce in Illinois. On August 7,1967, Lucille Younkins filed a second complaint for divorce, alleging mental cruelty in Count I and alleging an interest in certain properties in Count II. The defendant, George Younkins, filed his answer on August 17, 1967, denying the allegations made by plaintiff. On that date he also filed a countercomplaint for divorce on the ground of mental cruelty.

An order was entered by Judge Hunter on September 14, 1967. It recites that on motion of the plaintiff and the court being fully advised the countercomplaint for divorce filed by George Younkins “is taken as confessed by Lucille Younkins” and the matter was set down to be. heard on October 2, 1967, as a default hearing. The order further stated that the issue of the right to a jury trial concerning the property rights was continued to a date certain with briefs to be submitted. This order appears to have been presented to the court by Sussman and Hertzberg, attorneys for the plaintiff.

On October 2, 1967, attorney Harvey Sussman, on behalf of the plaintiff, and attorney Aaron Pasme, on behalf of the defendant and countercomplainant, appeared before Judge Hunter. Mr. Sussman explained to the court that although plaintiff had stipulated to be defaulted in the divorce action, the question of property rights was to be determined at a later date. Evidence was taken that day in the divorce action. A decree for divorce was signed by Judge Hunter. At the bottom of the order before Judge Hunter’s signature appears the date of October 6, 1967, and the notation “enter.” On the front page of the decree is the stamp of Joseph McDonough, Clerk of the Circuit Court, under the word “entered” which was dated October 9, 1967, and initialed by the deputy clerk.

Plaintiff Lucille Younkins, on November 8, 1967, filed a verified petition to vacate the default divorce decree. It was alleged therein that plaintiff at no time had knowledge of the entry of a divorce decree and that at no time did she authorize, consent to or approve any disposition on the issues except by trial by jury. She further alleged that the decree for .divorce was predicated solely upon the testimony of the countercomplainant and was corroborated only in part by his son’s testimony. She argued that the decree is, therefore, fatally defective, null and void, because it was not predicated upon the testimony of two corroborating witnesses as required by statute. Plaintiff averred that the adjudication of her property rights must, by their very nature, be determined against the background of the parties’ separate causes of action for divorce. Plaintiff alleged that she could prove each and every allegation of her complaint and that she had a meritorious defense to the counter-complaint. She, therefore, prayed that the decree for divorce entered on October 9, 1967, be set aside and the cause be set for trial by jury.

Also on November 8, 1967, the defendant and counter-complainant filed his answer to the petition generally denying its allegations. The answer averred that the petition to vacate was filed over thirty days after the entry of the decree and showed a lack of diligence. It was also alleged that the plaintiff was either present or represented by counsel of her choice in all the numerous proceedings before the court and that the petitioner moved to dismiss her complaint and have the matter heard upon the countercomplaint. The matter was set for a hearing on December 4, 1967, and leave was granted to Robert L. Tucker to file his appearance for Lucille Younkins in substitution for Sussman and Hertzberg.

On December 5, 1967, after hearing arguments of counsel, the court denied the petition to vacate the decree for divorce. On December 11, 1967, plaintiff filed a motion to vacate the order of December 5th. She alleged that she appeared in court on December 4th with counsel and accompanied by Harvey S. Sussman. Both of them were prepared to give testimony. The court refused to conduct a hearing for the purpose of taking the testimony of plaintiff and Mr. Sussman. In the motion it was alleged that counsel for plaintiff informed the court that if Mr. Sussman were called as a witness, he would testify that he agreed to the entry of a default order against his client on the basis of his own judgment without consulting plaintiff and without her knowledge, authority or consent. Plaintiff also alleged that she was prepared on December 4th to give testimony in support of her petition and to show diligence in moving to vacate the decree. Plaintiff contended that the refusal by the court to take any testimony was arbitrary and denied her due process and equal protection of the law.

Attached to the petition was the affidavit of Mr. Suss-man. In it he stated that without consultation with his client, in the exercise of his own judgment, he determined to enter into an agreement for the entry of a default order against his client and stipulated to an uncontested hearing on the countercomplaint in an honest belief that it was in the best interest of his client. He further alleged that he never informed plaintiff of the scheduled hearing for October 2nd and that she was not informed of the agreement for a default order against her prior to its entry. Mr. Sussman stated that when he informed Mrs. Younkins, after the decree was entered, that the divorce issue had been concluded as described, she objected to having been denied a trial by jury and demanded that he withdraw as her counsel. He further stated that he did appear in court on December 4th, as a witness, and would have testified to the matters set forth in his affidavit. The defendant filed his answer to the motion. On January 5, 1968, the judge entered an order denying the motion to vacate the order of December 5th and the motion to vacate the decree for divorce entered on October 6,1967.

An attorney has the authority to bind his client in the “conduct and management of the litigation.” Bergman v. Rhodes, 334 Ill 137, 165 NE 598. However, unless expressly authorized by his client to do so, an attorney has no power to consent to a judgment by confession. People ex rel. Wright v. Lamborn, 1 Scam (2 Ill) 123; Wadhams v. Gay, 73 Ill 415; Parker v. Board of Trustees of Southern Illinois University, 74 Ill App2d 467, 220 NE2d 258. This is particularly true in a divorce action where the state has an interest in the marriage relationship. It is common practice in the divorce courts that stipulations to hear contested divorce actions as default hearings are signed by the parties and not by their attorneys.

It has been held that an attorney’s consent to a judgment against his client, without authority from his client to so consent, is a sufficient ground for setting aside the judgment and granting a new trial. Fessler v. Weiss, 348 Ill App 21, 107 NE2d 795. We believe that should have been done in this case. The court’s power to vacate a default divorce decree should be exercised in a case such as this where the circumstances demonstrate such action to be necessary to prevent injustice. If the court had known the actual facts it would not have entered the default order against the plaintiff. We have examined the cases cited by defendant and in our opinion they are clearly distinguishable from the case at bar.

There is a dispute between the parties as to whether the decree for divorce became official when signed by the Judge on Friday, October 6, 1967, or when filed and recorded in the clerk’s office on Monday, October 9, 1967. In either event, whether we treat the petition to vacate as being filed within term time or as a section 72 petition, our conclusion is that the default divorce decree should have been vacated.

Accordingly, the decree for divorce entered by default in favor of the defendant is vacated and the cause is to be returned to the contested trial calendar.

Vacated and remanded.

MURPHY and ADESKO, JJ., concur.


author: PRESIDING JUSTICE BUR-MAN.

text:
    People of the State of Illinois, Plaintiff-Appellee, v. John O’Neal, Defendant-Appellant.
    Gen. No. 54,221.
    First District, First Division.
    March 16, 1970.
    Gerald W. Getty, Public Defender of Cook County, of Chicago, for appellant; Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago, for appellee.
   Opinion by

PRESIDING JUSTICE BUR-MAN.

Not to be published in full.


author: JUSTICE SCHWARTZ.

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Melvin Thomas, Defendant-Appellant.
    Gen. No. 53,569.
    First District, Third Division.
    March 19, 1970.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Stuart B. Scudder and James J. Doherty, Assistant Public Defenders, of counsel), for appellant; Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane, Assistant State’s Attorney, of counsel), for appellee.
   Opinion by

JUSTICE SCHWARTZ.

Not to be published in full.


author: MR. JUSTICE SCHWARTZ

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Charles McGill (Impleaded), Defendant-Appellant.
    Gen. No. 53,667.
    First District, Third Division.
    March 19, 1970.
    Rehearing denied April 9, 1970.

      Howard T. Savage, of Chicago, for appellant.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane, Assistant State’s Attorney, of counsel), for appellee.
   MR. JUSTICE SCHWARTZ

delivered the opinion of the court.

Charles McGill, Perry Russell and Clifford Johnson were charged with theft in violation of the Criminal Code (Ill Rev Stats, c 38, § 16-1 (b) (1963)) in that they “ [k] nowingly obtained by deception control over ten thousand dollars in United States currency, the property of Edgar Cox, intending to permanently deprive said Edgar Cox of the use and benefit of said property. . . .” They waived jury and on trial by the court, McGill and Johnson were found guilty and Russell was acquitted. McGill was sentenced to serve a term in the penitentiary of not less than three nor more than nine years. On this appeal, brought solely by McGill, he contends that the only evidence linking him to the crime was a vague and uncertain identification by the victim of the offense.

We are here concerned with one of those complicated criminal enterprises commonly known as a “confidence game.” In it each one of a group of conspirators plays a distinctive part in weaving a net for a victim or “fall guy” who has a substantial sum of cash available and is eager to make a quick addition thereto. The events may best be related by starting with a dramatis personae and a statement of the part that each is alleged to have played.

Edgar Cox, the alleged victim, was 73 years old, retired and living on a Commonwealth Edison Company pension. He had in excess of $10,000 on deposit at Bell Savings & Loan, located in the central business district of Chicago commonly called the Loop. Clifford Johnson, an alleged resident of Alabama who had recently arrived in Chicago, was the first of the defendants to strike up an acquaintance with Cox. He is alleged to have started the proceedings when he casually met Cox at 54th Place and Woodlawn Avenue in Chicago and asked Cox if he would help him find a place to stay. Charles McGill is alleged to have been the one who dangled a quick profit before Cox if the latter would lend him $10,000, in return promising to pay Cox $15,000 as soon as he collected a gambling debt owed him. Perry Russell, appearing as a friend of McGill’s, allegedly accompanied the others to Bell Savings and Loan and assisted in inducing Cox to withdraw $10,000. A fourth person unknown was also present when Cox withdrew the money. He had been seen by Cox earlier that day when Cox cashed a small check at the University Bank. Since Cox was first approached by Johnson when he was on his way home from the University Bank, this fourth person would have been in a position to inform his alleged confederates that a likely victim was in the offing. With this introduction to the principal characters we proceed to summarize the evidence.

Cox testified that shortly before noon on May 2, 1966, he went to the University Bank in the vicinity of 5500 Kimbark Avenue, Chicago to cash a check. On his way home he was approached near the corner of 54th Place and Woodlawn Avenue by a man later identified as codefendant Johnson. Cox had not known Johnson before that time. Johnson told him he was from Alabama and was a stranger in Chicago and he asked Cox whether he would help him find a place to stay. He exhibited a large roll of bills, telling Cox it contained $47,000. At that time Cox noticed a man, later known to him as McGill, alighting from a parked car on the side of Woodlawn Avenue opposite the place where he and Johnson were talking. McGill approached them and asked, “What’s the trouble?” Cox explained that Johnson was looking for a place to stay and then he (Cox) began walking away. McGill grabbed him by the arm, saying, “No man, don’t leave. We want to help this man. Come on and let’s help him.” McGill asked Cox and Johnson to get in his car so they could drive around and look for a place for Johnson to live. The three men got in the car and drove a few blocks when McGill stopped the car and began playing cards with Johnson. They gambled on each hand by making an initial bet and then betting double or nothing on each subsequent hand. About ten minutes after they started, McGill told Cox he had just won $35,000 and he insisted that Johnson pay him. Johnson replied, “I can’t give it to you unless you get some money to show me that you got enough to pay for my winning—my losing.” Johnson wanted McGill to “put up” $10,000 because “He wasn’t going to pay him [McGill] on false pretenses.” McGill asked Cox to get $10,000 so they could show Johnson the money. He told Cox that if he would get the $10,000, he (McGill) would give him $15,000 of the $35,000 which he would then be able to collect from Johnson. McGill left the car and walked into a nearby alley and several minutes later he returned with Russell and another man who was unknown to Cox.

Cox further testified that the four men drove him to his home where he picked up his passbook and that they then proceeded to Bell Savings where he had funds on deposit. Upon their arrival at Bell Savings, Cox went inside and withdrew $10,000 in cash. He reentered the car and they drove several blocks when McGill parked the car and asked whether he could see the money. Cox had just removed the bills from his pocket when McGill snatched them from his hand. McGill then gave Cox a bundle wrapped in paper which he said was the “money,” apparently referring to the $15,000 he had earlier promised Cox. At McGill’s suggestion Cox put the bundle under his shirt without examining its contents. All the men, Cox included, returned to Bell Savings so that Cox could deposit the “money” he thought he had under his shirt. Upon arriving at Bell Savings, McGill and Cox both got out of the car and walked toward the entrance of the building. McGill, however, turned and ran back to his car where his confederates were waiting. Cox remained where he was standing, removed the bundle from under his shirt, opened it and found that it contained only paper napkins. He did not immediately report the incident to the police because he was “dazed.” Instead he went home and told his wife what had happened. She called the police. The following day, May 3, 1966, Cox gave the police a description of the men involved.

Cox testified that he attended six or eight police lineups in May 1966, but was unable to recognize any of the men. He was also shown many photographs by the police but did not recognize any of the men. On June 14, 1966 he attended a police lineup consisting of seven men. On that occasion he recognized McGill, Johnson and Bussell. He testified that while the lineup was being conducted, McGill said to him, “If you got any more money, I’ll get that.” When asked to repeat the description of McGill which he had given the police, Cox testified that he told them McGill was a small man with a thin face, dark brown skin and weighing about 160 or 170 pounds. He thought he may have told the police that McGill was wearing a “kind of brown suit” and a small gray hat.

Police officer Patrick Daly testified that Cox gave him descriptions of three of the four men he said were involved. Of these descriptions, the police noted one as follows: “male negro, 40 to 43, five, nine; 145 pounds, slender build, dark skin, smooth shaven, black kinky hair, wearing a brown ‘stingy brim’ hat, dark green suit, dark grey shirt, very small feet for a man.” Daly testified that McGill did have very small feet for a man. McGill argues that this description was intended to depict him, but officer Daly testified that it was the description he had noted as offender “number two” without reference to any specific individual.

Police officer John Hill testified that he showed Cox about two hundred photographs of possible suspects, including one of McGill, but that Cox did not recognize McGill. On June 14, 1966, Cox identified McGill in a lineup at a local police station.

McGill contends that an examination of the record reveals the unreliability of his identification by Cox. He first refers to an alleged inconsistency in the “descriptions” of him as given by Cox shortly after the theft occurred. It is argued that these supposed inconsistencies show the unreliability of his later identification by Cox. A careful reading of the record, however, reveals that Cox gave but one description of the men involved and that the alleged inconsistencies lie in_the testimony of officer Daly and Cox as to what each remembered that description to have been. Cox’s version as related at the trial was given in response to a question asking whether he could recall how he had described McGill to the police at the time he first reported the incident. Officer Daly testified as to what he remembered that same description to be, but only after he had refreshed his memory from his notes. Any variation between what Cox remembered at the trial as being the description he gave of McGill the day after the occurrence and what officer Daly remembered that description to be bears only remotely on the reliability of Cox’s identification of McGill.

McGill argues that the unreliability of his identification is demonstrated by Cox’s failure to recognize him upon viewing his photograph at police headquarters. In People v. Woods, 114 Ill App2d 348, 252 NE2d 717, we held that the victim’s failure to recognize the defendant when he viewed a police photograph of him did not necessarily render a later lineup identification suspect. Our holding there applies with equal force to the instant case. Moreover, as we have hereinbefore noted, Cox testified that while in the lineup McGill said to him, “If you got any more money, I’ll get that.”

Finally, it is contended that since Cox was able to identify only McGill and Johnson but not Russell, his identification of McGill must be considered unreliable. This was evidence as to the fallibility of Cox’s memory, but the trial court could well have taken into account the different circumstances under which Cox viewed the two men. McGill was the protagonist in the scheme while Russell was alleged to have played only a passive role. As a consequence Cox spent much more time in McGill’s company than he did in Russell’s and he never wavered in his identification of McGill.

There is ample evidence in the record to support McGill’s guilt beyond a reasonable doubt and the judgment is affirmed.

Judgment affirmed.

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


author: MR. PRESIDING JUSTICE DEMPSEY

text:
    LaSalle National Insurance Company, Plaintiff-Appellee, v. Executive Auto Leasing Company, and Arthur Malkin, Defendants-Appellants.
    Gen. No. 53,916.
    First District, Third Division.
    March 19, 1970.
    Rehearing denied April 23, 1970.

      Mayer, Friedlich, Spiess, Tierney, Brown & Platt, of Chicago (George W. Hamman and Neil G. Bluhm, of counsel) , for appellants.
    Charles N. Salzman, Sheldon Karon, and Laurance P. Nathan, of Chicago (Friedman, Koven, Shapiro, Salzman, Koenigsberg, Specks & Homer, of counsel), for appellee.
   MR. PRESIDING JUSTICE DEMPSEY

delivered the opinion of the court.

The defendant, Executive Auto Leasing Co., appeals from a summary judgment entered for the plaintiff, La Salle National Insurance Company, in a declaratory judgment action for the interpretation of a fleet automobile insurance policy. The trial court entered judgment in favor of the plaintiff for $121,104.39, the amount alleged due under the retrospective premium endorsement of the policy. Executive contends that the pleadings, admissions and affidavits raised genuine issues of material fact which required determination by a jury.

In September 1962, Executive and LaSalle entered into a three-year contract whereby LaSalle insured against liability for bodily injury, property damage and medical payments those lessees of Executive who chose to receive its coverage. The policy was retrospective, i. e., one in which the premium was to be based upon the insurer’s loss experience during the entire term of the policy. The retrospective premium due to LaSalle was to be determined by multiplying the amount of the incurred losses by the factor of 1.4556. The contract incorporated maximum and minimum amounts of annual earned premiums which were to be based on Executive’s gross receipts. In the event that LaSalle’s loss experience was higher than estimated, a maximum of 6.844% was to be paid; conversely, there was to be a minimum annual premium equal to 4.526% of gross receipts. Since the actual amount of the earned premium was not to be determined until the expiration of the policy period, the policy made provision for Executive to make annual payments to LaSalle, again based on a percentage of gross receipts. These payments were to be applied against the final amount of the earned premium which would be calculated after the expiration of the policy.

Executive paid the standard premium each year for the life of the policy; LaSalle audited the accounts each year. In September 1967, LaSalle filed an adjusted premium statement indicating that $121,104.39 was due from Executive. This computation showed a retrospective premium which exceeded the maximum earned premium, as based on the percentage of Executive’s gross receipts! Based on the maximum allowable percentage, the earned premium was determined to be $407,479.71. After giving credit for payments previously made by Executive during the policy term, LaSalle determined that the premium balance was $121,104.39.

LaSalle’s complaint alleged the above facts and also claimed that the amount of gross receipts should be equal to the aggregate rentals received by Executive under the lease agreements for which LaSalle provided insurance. The complaint averred that Executive had wrongly excluded from the gross receipts a certain portion of these rentals, thereby depriving LaSalle of the full premium due. LaSalle sought a construction of the policy and a determination that Executive was liable for the unpaid premium balance.

In its answer, Executive denied that LaSalle’s incurred losses were as high as LaSalle asserted and it asked that the trial court determine the actual incurred losses for each calendar year of the policy. The answer alleged that the term “gross receipts,” as defined in the policy, did not include those sums received by Executive for such items as the maintenance of the leased autos, their license fees and insurance premiums. Executive also claimed that the premium was to be based on a calendar-year basis rather than on a three-year term as urged by the plaintiff. LaSalle’s reply denied the affirmative allegations set forth in the answer.

In answer to LaSalle’s interrogatories, Executive confirmed that its gross receipts from insured lessees was $5,953,823.90 and that from this income it deducted an arbitrary sum for reimbursable expenses. These expenses were various items that its lessees had the option of either providing for themselves or obtaining through Executive on a cost basis. In order to arrive at the net receipts reportable to LaSalle, Executive deducted from the annual amount of gross income received from its insured lessees the sum of $360,000 per year for the first two years of the policy and the sum of $240,000 for the third year.

Executive filed a motion for the production of documents relating to LaSalle’s incurred losses, and LaSalle filed one for summary judgment supported by an affidavit from its treasurer. Executive filed objections to LaSalle’s motion and an affidavit from one of its partners. The affidavit and the objections described the negotiations surrounding the issuance of the policy and the interpretation placed on the term “gross receipts” by the parties. Executive presented a motion for leave to amend its answer on the day the summary judgment was entered. The amendment contended that LaSalle was estopped from raising the issue of gross receipts since Executive had acted in reliance on LaSalle’s assurances that the premium was to be based on funds received for the leasing of automobiles and not on funds received for reimbursable expenses. The record is not clear whether the motion to amend was granted.

The purpose of the summary judgment procedure is to determine whether there exists a genuine issue of material fact. If there is no such issue the moving party is entitled to summary judgment as a matter of law. If there is such an issue, summary judgment must be denied. The right to summary judgment must be free from doubt. Ill Rev Stats 1967, c 110, sec 57; Anderson v. Prab Conveyers, Inc., 69 Ill App2d 224, 216 NE2d 252 (1966). Executive contends that genuine issues of material fact exist regarding the amount of incurred losses and the definition of the term “gross receipts,” both of which require that the summary judgment granted by the trial court be reversed.

The insurance policy defined “incurred losses” to include losses paid by the plaintiff LaSalle, reserves for losses not yet paid, and certain administrative expenses. LaSalle’s premium statement and complaint stated that it had incurred losses of $320,818.81; this figure when multiplied by the factor of 1.4556 resulted in an earned premium of $466,056.64. Executive denied that the incurred loss figure was correct. It requested the production of documents relating to the claimed loss and the reserves therefor. LaSalle had no objection to producing these documents, but the court never ruled upon Executive’s motion.

LaSalle placed the amount of incurred losses in dispute in its pleadings. Though the amount of paid-out claims is a matter of accounting, an item such as reserves for unliquidated losses involves an exercise of discretion. Supreme Court Rule 201, provides that “a party may obtain by discovery full disclosure regarding any matter relevant to the subject matter involved in the pending litigation.” Ill Rev Stats 1967, c 110A, § 201. LaSalle has the exclusive control over information regarding the claims made and the amounts sought, as well as a superior opportunity to ascertain their value and the reserves required for them. Premiums due under the policy are initially measured by the amount of incurred losses; thus, the determination of these losses established Executive’s threshold liability to LaSalle. Good cause existed for the production of the documents before summary judgment was granted in order that Executive could determine the factual basis for LaSalle’s assertion that its incurred losses were $320,818.81. The factual issue over the size of the losses might have disappeared if the pertinent documents had been produced; but they were not and the issue was unresolved when the judgment was entered.

An issue of even greater materiality concerned Executive’s gross receipts. The alternative method of determining the premium—which came into play because of the size of the incurred losses—was founded on a percentage of the gross receipts. Under the circumstances, the receipts were subject to 6.844%, the maximum percentage permitted by the policy. Gross receipts was defined in the policy as:

“. . . the total amount the named insured is entitled to receive for the leasing of automobiles under lease agreements requiring the named insured to provide the insurance coverage afforded by this policy.”

Executive points to the phrase “for the leasing of automobiles” and contends that it modifies the words which precede it: “the total amount the named insured is entitled to receive.” It submits that when this is done it becomes clear that only income received from leasing automobiles was intended to be included in gross receipts, and that additional sums received from the lessees for such items as state and municipal auto licenses, automobile insurance and the maintenance of the leased autos are not embraced within the term “gross receipts.” La Salle contends that the phrase “for the leasing of automobiles” must be read in conjunction with the words which follow it: “under lease agreements requiring the named insured to provide the insurance coverage afforded by this policy.” It submits that when this is done it becomes clear that the phrase was intended to differentiate between leasing agreements which provided insurance coverage and those which did not, and thus “gross receipts” includes the aggregate sums received from the insured lessees before any deductions are taken. The trial court gave additional reasons for agreeing with LaSalle’s position. The court stated that the premiums were based on gross receipts, and that gross receipts— as defined in Webster’s Dictionary, Black’s Law Dictionary, 4th Edition, and in certain cases—meant total receipts before any expenditures were made. The court said that if the parties had intended to give the term a different meaning they should have spelled it out in their policy.

In support of its position LaSalle quotes from Sheriff v. Moore, 105 Ga App 833,125 SE2d 729 (1962):

“ ‘Gross receipts’ as used in an insurance policy in providing a method of determining the premium to be paid, is not an ambiguous term. The words mean the whole, entire, total receipts, as opposed to ‘net receipts.’ . . . and under ordinary basis method of handling accounts the term must be taken to include the whole total gross receipts without any deductions.”

There is no indication in Sheriff that the insurance policy in that case defined the term “gross receipts” as it was defined in the present policy. Nor is State v. Illinois Central R. Co., 246 Ill 188, 92 NE 814 (1910), a tax case which LaSalle cites, apposite here. When a tax is levied on gross receipts it applies to every penny a person, firm or corporation takes in regardless of the source whence it comes. In the present case the parties attempted to give their own definition to gross receipts. The policy must be construed, therefore, in accordance with their understanding of the term.

It indeed would have been well, as the trial court said, if the parties had spelled out precisely what they meant by gross receipts. As it is, their contractual definition is susceptible of either LaSalle’s or Executive’s construction. A contract is ambiguous if the words used by the parties are fairly susceptible of being understood in more than one sense. Coney v. Rockford Life Ins. Co., 67 Ill App2d 395, 214 NE2d 1 (1966). In the construction of a contract the determining factor is the intention of the parties. If possible, the intention must be ascertained from the language employed in the contract (Industrial Commodity Corp. v. E. J. Brach & Sons, 92 Ill App2d 163, 235 NE2d 857 (1968)) but if this is impossible, the language may be explained by extrinsic evidence so that the true intention of the parties may be learned. Martindell v. Lake Shore Nat. Bank, 15 Ill2d 272, 154 NE2d 683 (1958).

The present policy requires extrinsic evidence to ascertain the intent of the parties at the time they entered into it. Admissible facts and circumstances surrounding the making of the contract, the interpretation placed upon it by the parties contemporaneously with its making or by their performance under its terms, acts by one party which may have indicated acceptance of the other’s interpretation, may aid the court or jury in reaching the correct construction. The ambiguity of the policy created a genuine issue of material fact.

Two additional points are raised by Executive: (1) that the premium should have been computed for each year of the policy rather than at its expiration, and (2) that LaSalle is estopped from computing the premium—two years after the policy ended—on the basis of its own interpretation of gross receipts. As to the first, Executive says it is entitled to judgment as a matter of law and as to the second, that it is entitled to a trial.

As this opinion has pointed out, the three-year policy provided for a retrospective premium upon the policy’s expiration. This was for the purpose of enabling the insurer to determine its incurred losses with finality and to adjust the final premium in relation to the fixed monthly and minimum annual premiums paid during the life of the policy. The trial court correctly ruled that a computation based on the whole period of the policy was proper.

Executive’s amended answer raised the defense of estoppel. The defense must be considered in connection with an affidavit submitted by Executive which stated that under a prior policy with another insurance company it had paid a premium based on leasing income only; that LaSalle was informed of this and copied the prior policy’s definition of gross receipts into its policy, and that during the life of the LaSalle policy Executive operated just as it had under the prior policy without objection by LaSalle. On appeal, LaSalle responds that such extrinsic evidence would violate the paroi evidence rule and is not admissible where a contract is complete and unambiguous. We have found, however, that the policy is ambiguous and that appropriate extrinsic evidence may be received to clarify the ambiguity. The amended answer raised a material factual issue which also entitled Executive to a trial. However, as we mentioned earlier, it is not clear whether the motion to amend was allowed. This question can be resolved on remand.

The insurance policy, the pleadings of the parties and their affidavits raised the factual issues of incurred losses, the meaning of gross receipts, and estoppel. Summary judgment should not have been granted. The judgment is reversed and the cause remanded.

Reversed and remanded.

SCHWARTZ and McNAMARA, JX, concur.