author: MR. JUSTICE DEMPSEY

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Nathaniel McGuirk, Defendant-Appellant.
    Gen. No. 51,584.
    First District, Third Division.
    February 20, 1969.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Professor James R. Thompson, Northwestern University School of Law, and James J. Doherty, and Marshall J. Hartman, Assistant Public Defenders, of counsel), for appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Howard Levine, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE DEMPSEY

delivered the opinion of the court.

Nathaniel McGuirk was sentenced to twenty to thirty years in the penitentiary after being found guilty, in a nonjury trial, of rape and indecent liberties.

The prosecutrix, a nine-year-old girl, was mistreated and raped by McGuirk who was the janitor of the building in which she lived. In the early afternoon of August 14, 1964, he pulled her down the basement stairs and into his apartment. After he overcame her resistance and raped her, she hid under the bed. A woman who lived in an apartment adjoining McGuirk’s heard a girl say, “You hurt me” and McGuirk reply, “If you do what I tell you to do I won’t hurt you any more.” She went to Mc-Guirk’s kitchen door and looked through the keyhole. She saw him standing naked beside his bed and saw blood on the bedspread. The child’s voice was coming from under the bed. The woman forced the door open and hurried back to her apartment to get a knife. When she returned she saw McGuirk, who had put on some clothing including a bloody shirt, take the prosecutrix from under his bed and carry her into the boiler room. The woman locked the boiler room door to prevent his escape.

In the meantime, another resident of the building had heard the disturbance and went to the front door of Mc-Guirk’s apartment. When he heard a little girl cry out, “No, you are going to hurt me,” he ran to get the police. More neighbors gathered and a policeman came. The officer entered the boiler room and found McGuirk behind the furnace trying to put on his pants. His underclothing and the lower front part of his shirt were bloody.

The child’s underclothing and dress were also bloody. She was taken to a hospital and was still bleeding when she arrived there. The examining doctor testified that no sperm was found in her vagina but that her hymen was torn and there were fresh lacerations between her vagina and rectum.

It is not disputed that the evidence established the defendant’s guilt beyond reasonable doubt but it is contended, among other things, that the State failed to prove him sane at the time of the crime and that the court erred in not conducting a hearing as to his competency to stand trial.

The defendant testified that he finished school at the end of the sixth grade and worked off and on thereafter until he entered the army (in 1948). He served for three years and received an honorable discharge. In February 1949 he was convicted of indecent liberties and the rape of a young girl and was sentenced to the penitentiary for 17 to 20 years. He was released in 1959 and worked at various jobs until 1963, when he was again arrested. He was confined in the Mental Health Clinic of Cook County following his arrest and was discharged early in 1964. He started working as the janitor of the building in which the prosecutrix lived in March 1964 and, although married, was living alone at the time of the assault. •

He further testified that he decorated a room in the building the night before the assault and did not finish until 6:00 or 7:00 a. m. He and a friend drank a half pint of whiskey and when his friend left about 11:00 a. m. he went to bed. He said he awakened in the afternoon, ran to the boiler room to fire the boilers and while there cut his toe on a piece of glass. He brought the bleeding toe up to his body to examine it and was returning to his apartment to take care of it when he was confronted by a policeman and his next-door neighbor. He denied being naked at any time and said that as far as he knew the blood on his clothing came from his toe.

The defendant argues that his testimony tended to prove that he had “blacked out” at the time of the offense and that his “amnesia” came from a mental disorder. He argues further that this, plus his prior confinement in the Mental Health Clinic, was sufficient to raise the affirmative defense of insanity and that the State failed to sustain its burden of proving him sane beyond a reasonable doubt.

Section 6-2 (b) of the Criminal Code states that a person is not criminally responsible for conduct if at the time of such conduct, as a result of mental disease or mental defect, he lacks substantial capacity to either appreciate the criminality of his conduct or to conform his conduct to the requirements of the law. Ill Rev Stats 1968, c 38, par 6-2 (b). The defense of insanity is an affirmative defense (c 38, par 6-4) and if the State’s evidence does not raise the issue of an accused’s sanity the burden is on him to do so. Once evidence of insanity is introduced, the burden devolves on the State to prove beyond a reasonable doubt that at the time of the crime the accused was sane. Chapter 38, paragraph 3-2(a), (b); People v. LeMay, 35 Ill2d 208, 220 NE2d 184 (1966).

The State’s evidence did not create any doubt of the defendant’s sanity, and if he wished to raise the issue as an affirmative defense it was his obligation to present some evidence in this regard. This he did not do. There was no opinion testimony as to his mental condition and he did not testify that he blacked out. He testified that after having had no sleep the night before he went to bed at eleven in the morning and slept until shortly before he was accused of the crime. He said, in effect, that he did not commit the crime because he was sleeping at the time it was supposed to have taken place. The defendant’s argument amounts to this: the evidence of his guilt is so overwhelming that he must have blacked out if he did not remember committing the crime. This argument not only contradicts his own testimony but presupposes that he was telling the truth when he testified that he did not remember having anything to do with the prosecutrix. Further, although he had been sent to the Mental Health Clinic following his arrest for arson in 1963, he was discharged after nine days of observation and remanded to the custody of the police. This evidence did not rebut the presumption of sanity. The trial court was justified in finding that McGuirk was sane beyond a reasonable doubt and did not err in denying his motion for a finding of not guilty on this issue.

Different factors enter into the defendant’s contention that the court erred in not holding a hearing as to his competency to stand trial. Upon the defendant’s motion, made before trial, the court ordered an examination by the Behavior Clinic of the Criminal Court of Cook County. The resulting report found that the defendant had a sociopathic personality disturbance but that he knew the nature of the charge against him and was able to cooperate with his counsel. It also stated that he was not committable to an institution for the mentally ill or the mentally defective. A supplemental report revealed that he had been examined in 1963 by the Psychiatric Institute of the Municipal Department of the Circuit Court, was diagnosed as “Schizophrenic Reaction, Paranoid Type” and was certified to the Mental Health Clinic. At the clinic he was diagnosed as not psychotic and was discharged. After his arrest in August of 1964 he was again referred to the Psychiatric Institute and was examined by two psychiatrists. The diagnosis was that he had a schizoid personality, was not psychotic, could have a potential primitive, impulsive behavior, but was able to cooperate with counsel. He had been married twice and had two children by his second wife. He was separated from her and it was reported that he had a personality change after the separation. A sister of his thought he was deteriorating from living alone. He was described as active, shy, sympathetic, good-natured, generous, able to get along well with others, restless, easily led and reliable. The supplemental report concluded that he knew the nature of the charge and was able to cooperate with counsel.

At the defendant’s request the court also ordered an examination by two psychiatrists of the defendant’s own choosing, and the trial was postponed pending the examination. The examination was held but the report was not submitted to the court.

Nothing was said about a competency hearing until both sides had rested. In moving for an acquittal, the defendant’s attorney for the first time said that there was a “serious question of the competency of this defendant to stand trial.” It is argued in this appeal that the Behavior Clinic report, the history of the defendant and his testimony, raised a bona fide doubt of the competency of the defendant and that the court should have ordered a competency hearing on its own motion, and that its failure to do so was a violation of due process and deprived the defendant of a fair trial.

If, during a trial, the court has reason to believe that the defendant is incompetent, it becomes the court’s duty to order a sanity hearing (Ill Rev Stats 1963, c 38, § 104-2 (b)) and “this is true even if counsel does not raise or argue the point in the trial court.” People v. Bender, 27 Ill2d 173, 188 NE2d 682 (1963). However, it is within the discretion of the court to decide whether the facts and circumstances raise a bona fide doubt of the defendant’s competency. People v. Pridgen, 37 Ill2d 295, 226 NE2d 598 (1967). The statute defines an incompetent person as one who is unable because of physical or mental condition to understand the nature and purpose of the proceedings against him, or to assist in his defense. Ill Rev Stats 1963, c 38, § 104-1 (a), (b). The report of the Behavior Clinic, signed by two psychiatrists, found that McGuirk knew the nature of the charge against him and that he was able to cooperate in his own defense. The report of the Psychiatric Institute was to the same effect. He had been examined by private psychiatrists and it is a reasonable inference that if their report was contrary to that of the court’s psychiatrists it would have been brought to the attention of the court. Moreover, McGuirk testified clearly and responded lucidly to the questions asked him on direct and cross-examination. Under all these circumstances it is understandable why the court did not have a bona fide doubt of his competency to stand trial and the court did not abuse its discretion in not calling for a competency hearing.

Two other points assigned by the defendant pertain to the testimony of the prosecutrix. He claims that the trial court erred in permitting her to testify and that the prosecutor told her what to say in court.

During the preliminary examination as to her competency by the prosecutor she said that she had attended church and had been taught about lying; that she knew what it meant to tell the truth but forgot what happened to little girls who told lies. In response to questions by the court, she said she knew the difference between lying and telling the truth and that she would tell the truth. She also said that she knew the difference between heaven and hell and that persons who did not tell the truth went to hell. Under cross-examination she replied that she had not known that one who lied went to hell until the prosecutor talked to her before she testified.

Whether a witness shall be permitted to testify when an objection has been interposed as to her competency because of age or understanding, is a matter resting largely in the discretion of the trial court. People v. Schladweiler, 315 Ill 553, 146 NE 525 (1925). The pretrial preparation by the prosecutor in impressing upon the child the obligation to speak truthfully was not improper and did not deprive the defendant of a fair trial. The record does not support the defendant’s contention that the prosecutor supplied her with the words needed to establish her competency. While her answers on direct examination indicated some confusion (she was crying and said she was both frightened and unafraid) they did not disqualify her as a witness. Her responses to the subsequent questions of court and counsel showed that she was intelligent, that she knew the difference between truth and falsity and that she appreciated the moral duty to tell the truth. People v. Davis, 10 Ill2d 430, 140 NE2d 675 (1957). The court did not err in permitting her to testify.

In cross-examination, following her testimony in chief, the prosecutrix testified that the prosecutor had read something to her (a transcript of her testimony before the grand jury) and told her to say the same thing that was on the paper. She also answered “yes” to the following questions:

“And you want to do what the nice man says, do you not, honey ?”
“Did he tell you that he [McGuirk] would be the only colored man that was sitting at the table?”
“And he told you to point out the colored man, did he not, is that right, honey?”
“And you would do what the man says, would you not, honey, because he is a good man?”
“Whatever he says you are to say you would say, is that not right honey ?”

On re-direct examination she reaffirmed that the prosecutor had told her “some to say” and that he had said that the man she was to identify would be seated at the table.

An attorney is bound by the testimony of his witnesses and there is nothing improper in refreshing their memories before they take the stand. Reviewing their testimony before trial makes for better direct examination, facilitates the trial and lessens the possibility of irrelevant and perhaps prejudicial interpolations. It is particularly advisable in a sex case to prepare a prosecutrix for the ordeal she will face in the courtroom. A State’s attorney must go over her story with her, ease her embarrassment, familiarize himself with the sexual terms she uses and perhaps suggest others. There is nothing wrong with this if the witness’s essential testimony is neither altered nor colored by emphasis or suggestion.

A more serious question is raised by the testimony of the prosecutrix that the prosecutor told her “some to say” and to identify the colored man at the counsel table. It is highly improper for a prosecutor to induce a witness to say anything but the truth and it is a denial of due process for a conviction to be obtained on testimony known by the prosecution to be false. Napue v. Illinois, 360 US 264, 79 S Ct 1173 (1959). What the prosecutor told the child to say, however, is not disclosed in the record. The case was tried before the court and the court was aware of her statement and could weigh the truth of her testimony accordingly. There was ample corroboration of her testimony and no reason to suspect that the “some to say” included untruthful suggestion.

Although the prosecutor told the prosecutrix that Mc-Guirk would be seated at the counsel table the implication that this induced his identification is not justified under the facts of this case. She was not identifying a stranger. The defendant was the janitor of the building in which she lived and they had spoken together several times before the day of the crime. Moreover, she testified that she informed the prosecutor that McGuirk had raped her and that he never used the defendant’s name until she mentioned it to him.

This is not a case where the defendant’s conviction rests solely upon the testimony of the complaining witness. The defendant was almost caught in the act. The corroborating evidence surrounding the commission of the crime—her presence in his room, her crying out that he had hurt her, his nakedness, her torn hymen and perineum, the fresh blood on the bedspread, on his clothing and on hers, his taking refuge in the boiler room and his apprehension at the scene of the crime—would justify the finding of guilty even if her testimony were less convincing than it was.

The defendant complains that he was sentenced for offenses which arose out of the same conduct and that the two sentences could prejudice his chances for parole.

The court found the defendant guilty of both rape and indecent liberties but only one sentence was imposed. In pronouncing sentence the court stated:

“Based upon the evidence and the type of crime involved the court will sentence the defendant to the penitentiary for a period of not less than 20 nor more than 30 years.”

The twenty- to thirty-year sentence was within the statutory limits for the crime of rape (Ill Rev Stats 1963, c 38, § 11-1 (c)) but was in excess of the one to twenty-year punishment provided for the crime of indecent liberties (c 38, § 11-4 (c)). Since the sentence was appropriate only to the crime of rape it must be presumed that it was for this offense and this offense alone that the sentence was imposed. The common-law record, however, states that the defendant was sentenced for both offenses. This is erroneous and the judgment as to indecent liberties will be reversed.

The conviction and sentence for rape are affirmed. The judgment for indecent liberties is reversed.

Affirmed in part and reversed in part.

SULLIVAN, P. J. and SCHWARTZ, J., concur.


source: Caselaw Access Project

author: MR. JUSTICE SCHWARTZ

license: Public Domain

text:
    Kennedy & Kratzer, Inc., Plaintiff-Appellee, v. Chicago, Burlington & Quincy Railroad Company, Defendant-Appellant.
    Gen. No. 52,566.
    First District, Third Division.
    February 20, 1969.

      T. G. Schuster, D. R. Sterling, and G. W. Phillips, of Chicago (Eldon Martin, of counsel), for appellant.
    Louis B. Tishler, Jr., and Earl B. Slavitt, of Chicago (Ressman & Tishler, of counsel), for appellee.
   MR. JUSTICE SCHWARTZ

delivered the opinion of the court.

Plaintiff sues to recover for damages to a shipment of potatoes incurred while in transit on defendant’s railroad. Liability was conceded and the amount of damages was determined by the court without a jury. The court entered judgment for $1,300.45 based on his finding that plaintiff had properly abandoned the shipment and was entitled to the market value of the potatoes as of the time of delivery to the carrier less freight charges. Defendant contends that this was not the proper measure of damages, that plaintiff should have accepted the shipment, sold the potatoes for the best price it could obtain and made its claim for the difference between that and the market value of the potatoes if delivered in good condition in normal course. The facts follow.

On January 25, 1966, plaintiff shipped a carload of 500 sacks (100 pounds each) of North Dakota Round Red potatoes to its sales agent in Chicago via defendant railroad. The shipment was inspected at origin by a representative of the United States Department of Agriculture and graded as U. S. No. 1. It was delayed seven days in transit and upon arrival in Chicago was given a doorway inspection by another inspector employed by the Department of Agriculture. Freezing damage was detected in some of the bottom layer sacks and because of that damage the shipment was no longer graded U. S. No. 1.

Plaintiff’s agent Wilbur Kratzer testified that the market value of U. S. No. 1 North Dakota Bound Bed potatoes at the time in question was $3.25 per cwt., that it was his custom to deal in carload lots of No. 1 potatoes only, that he attempted to sell the carload but was unable to do so and that as a result the damaged potatoes were worth nothing to him. He further testified that it is the custom of the trade in Chicago for a carload lot dealer to abandon goods to the carrier if their condition is so bad he is unable to get a marketable value. He further testified that five days after the potatoes arrived he received an offer of $2.25 per sack for the entire carload “as is.” He called a claim agent of the defendant and asked whether defendant would reimburse him for his loss if he sold the potatoes at $2.25 per sack. The agent was not authorized to assure Kratzer that defendant would reimburse him and refused to settle the claim over the telephone. Kratzer then notified defendant by telephone and in writing that he was abandoning the carload.

Defendant introduced Department of Agriculture market reports which showed that on February 4, 1966, U. S. No. 1 North Dakota Bed potatoes were selling in Chicago for $3.15 to $3.20 per cwt. David Brown, manager of defendant’s loss and damage department, testified that the railroad had no facilities of its own to handle the sale of an abandoned carload of potatoes and that a broker was engaged to sell the carload for salvage value. The broker separated the bags and sold 127 bags which were damaged for 50 cents per bag and 373 bags which were not damaged for $1.50 per bag. He testified that the difference in market price and the price obtained was due to the fact that when railroads, by reason of abandonment by the consignee, are forced to sell through salvage channels they always get a lower price. After the cost of the sale was deducted the net salvage value realized amounted to $435.70. The trial court found the value of the potatoes in good condition to be $3.25 per sack, or $1,625, and awarded plaintiff that amount less the unpaid freight charge of $324.55 and entered judgment against defendant for $1,300.45.

The law is well settled that the measure of damages for goods injured in transit is the difference between the fair market value of the goods at the time and place of delivery in their injured or deteriorated condition and the fair market value of such goods if delivered without injury. Mirski v. Chesapeake & O. Ry. Co., 31 Ill2d 423, 202 NE2d 22; Gulf, Colorado & Santa Fe R. Co. v. Texas Packing Co., 244 US 31, 6 ILP, Carriers, § 200. This rule contemplates that the consignee has accepted delivery of the goods and has not abandoned them to the carrier. If the consignee has rightfully abandoned the goods, he may recover the full value of the shipment less freight. The issue for determination is whether plaintiff had a right to abandon the goods to defendant after it discovered they were damaged.

A consignee may rightfully abandon to the carrier goods damaged in transit to such an extent that they are virtually worthless. Pennsylvania R. Co. v. John Anda Co., 131 Ill App 426; Beck v. Chicago, M. & St. P. Ry. Co., 39 SD 297, 164 NW 74; Thompson v. Tankersley (Tex Civ App), 238 SW2d 263 (1951). But a consignee has no right to abandon a shipment of goods which has been only partially damaged and which retains a substantial value. Denver-Chicago Trucking Co. v. Republic Drug Co., 134 Colo 586, 306 P2d 1076; 2 Hutchinson on Carriers, § 1365; Miller’s Law of Freight Loss & Damage Claims, pp 325-26; 13 Am Jur2d, Carriers, § 427; 13 CJS, Carriers, § 273. This rule imposes on the consignee the duty to dispose of partially damaged goods. Through normal market channels the plaintiff, as admitted by its agent, could have sold the entire carload of potatoes at $2.25 per sack, or $1,125. Defendant was able to realize only $435.70 for the same carload.

Plaintiff acknowledges that this rule is as we have stated it, but the evidence establishes that the custom and procedure of the market was for dealers in carload lots to abandon goods to the carrier if upon arrival they were “so damaged as to have no value to the dealer .” That is the only evidence as to custom and it does not alter the rule, except as it may relate to the claim that the potatoes were of no value to the dealer. This is not borne out by the evidence. On behalf of plaintiff, Kratzer testified that the value of the potatoes “was nothing as a car lot, since I could not find customers for it.” But he also testified that before he abandoned the potatoes to the carrier, he had an offer of $2.25 per sack for the carload. He did not accept the offer because one of defendant’s agents who had not seen the carload would not assure him of reimbursement for the loss. This did not justify abandonment since the law gave plaintiff the legal right to be so reimbursed. The potatoes were in fact still the consignee’s. A finding that the potatoes were substantially worthless or of no value to plaintiff, as it contends, is contrary to the manifest weight of the evidence.

The judgment is reversed and the cause remanded for new trial in order that there may be a finding of damages in accordance with the rule hereinbefore stated and for such other and further proceedings as are not inconsistent with the views herein expressed.

Judgment reversed and cause remanded with directions.

SULLIVAN, P. J. and DEMPSEY, J., concur.


author: GOLDENHERSH, P. J.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Randall Max McClure, Defendant-Appellant.
    Gen. No. 68-88.
    Fifth District.
    February 21, 1969.
    Rehearing denied March 24,1969.
    W. K. Kidwell, of Mattoon, for appellant.
    Frank H. Schnoederjon, State’s Attorney of Effingham County, of Effingham, for appellee.
   GOLDENHERSH, P. J.

Defendant appeals from the judgment of the Circuit Court of Effingham County finding him guilty of the offense of having in his automobile a pistol, which was not unloaded and enclosed in a case, in violation of chapter 61, section 180, Ill Rev Stats 1965.

The testimony shows that on September 6, 1965, the sheriff of Effingham County and his deputy placed defendant under arrest at the residence of his wife’s parents. Defendant’s automobile was in the driveway, and he asked the sheriff if it could be brought back to town because if it was left there it would be destroyed. The sheriff at first denied, and then approved the request, and the deputy entered defendant’s car to ride into town with him.

The deputy asked defendant whether he had a gun in the car. He replied that he had, and got it out from under the seat. It was a Belgian automatic, 9 millimeter and contained a magazine with 13 shells. The gun was in a holster, in a paper bag. The holster also contained an additional magazine.

There is a conflict in the testimony as to whether, at the time he handed the deputy the gun, defendant’s automobile was on a private road on his in-laws’ premises, or on the public road.

Defendant was taken to Effingham, a complaint was filed, a warrant issued, and he was confined until the next morning, when he was released on bail. On March 1, 1966, defendant appeared in court and upon his representation that he was without funds, defense counsel was appointed.

On May 20, 1966, defendant filed a motion to dismiss, alleging that on September 7, 1965, he had demanded a trial, had never requested a continuance, and he had not been tried within 120 days of the date of demand. Defendant was tried by the court without a jury on September 19,1966, and found guilty.

Defendant contends that in violation of Escobedo v. Illinois, 378 US 478, 84 S Ct 1758, he was not advised of his right to remain silent, and warned that anything he said might be used against him. There is no testimony of any admission or statement made after his delivery of the gun to the deputy, and the relevancy of Escobedo, or any violation of the rule therein enunciated, is neither apparent to us nor pointed out by defendant.

When a defendant is free on bail the four months’ period starts to run when he demands a trial, People v. Kuczynski, 33 Ill2d 412, 211 NE2d 687. The record does not support defendant’s contention that trial was demanded prior to May 20, 1966, and he was tried within four months of that date.

Defendant contends the gun was not loaded, within the contemplation of the statute. Counsel have not cited, nor has this court found an Illinois case which decides what is a “loaded” gun. In State v. Alt, 215 Wis 387, 254 NW 533, the Supreme Court of Wisconsin held that an automatic repeating rifle having cartridges in the magazine, but none in the barrel was “loaded” within the statute which prohibited carrying a gun or rifle in a vehicle unless it was unloaded and knocked down, or unloaded and enclosed within a case.

The pistol in defendant’s automobile contained a loaded magazine, and although there was no shell in the barrel, it required only the pulling back of the slide on the receiver to place the cartridge into position for firing, and cock the hammer. This was not an “unloaded” pistol within the contemplation of the statute.

Defendant’s final contention is that he was not proved guilty beyond a reasonable doubt. Defendant testified he did not recall whether the magazine was in the pistol when he handed it to the deputy sheriff. The credibility of the witnesses was for the trial court to determine, and the evidence is sufficient to sustain the conviction.

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

Judgment affirmed.

MORAN and EBERSPACHER, JJ., concur.


author: PRESIDING JUSTICE GOLDENHERSH.

text:
    J. Edward Jones, as Managing Beneficiary Trust No. 10215 of Guaranty Bank & Trust Company, etc., Plaintiff-Appellant, v. Joseph G. Engert and Howard Freedberg, as Co-Partners Doing Business as Northwestern Finance Company, Defendants-Appellees.
    Gen. No. 52,236.
    First District.
    February 24, 1969.
   Opinion by

PRESIDING JUSTICE GOLDENHERSH.

Not to be published in full.


author: ALLOY, P. J.

text:
    Camille Gillette, Plaintiff, v. Clyde Todd and The Suburban Oil Company, a Corporation, Defendants. Clyde Todd and The Suburban Oil Company, a Corporation, Defendants and Third-Party Plaintiffs-Appellants, v. Board of Education, School District No. 83, of Cook County, Illinois, a Municipal Corporation, Third-Party Defendant-Appellee.
    Gen. No. 52,423.
    First District.
    February 24, 1969.
    Richard C. Bleloch, of Chicago, for appellants.
    Patrick J. Muldowney, of Chicago (Sidney Z. Karasik, of counsel), for appellee.
   ALLOY, P. J.

Camille Gillette, a school teacher, was injured at Mannheim School in Cook County when defendant, Clyde Todd, an employee of defendant Suburban Oil Company, a corporation (who was in the school on business), opened a door leading from the school gymnasium, causing the door to strike the plaintiff, Camille Gillette. She filed suit against Todd and Suburban Oil Company. Todd and Suburban Oil Company thereafter filed a third-party complaint against the Board of Education of School District No. 83, alleging that the injury to Gillette was due to active negligence of the school in designing, constructing, and equipping the door which caused the injury. The third-party plaintiffs prayed that if judgment be entered against them as defendants, that they in turn have judgment for a like amount against the school district and asserted that the negligence of said third-party plaintiffs was merely passive. On motion to strike filed by the school district, the trial court entered an order striking the third-party complaint and recited specifically that the third-party plaintiffs and the third-party defendant, the school district, would be joint tortfeasors and no contribution could be had.

The third-party plaintiffs, Todd and Suburban Oil Company (in addition to contentions relating to active-passive negligence) also contend that even if they would be considered guilty of active negligence or “contributory” negligence, the rule should be changed and the doctrine of comparative negligence should be adopted in this State. As to this contention relating to comparative negligence, the Supreme Court of this State in the case of Maki v. Frelk, 40 Ill2d 193, 239 NE2d 445, has refused to adopt the doctrine of comparative negligence, and indicated that such proposal should be submitted for legislative determination.

To sustain the order of the Circuit Court of Cook County, appellee-school district asserts that the trial court was correct in dismissing the complaint for failure to state a cause of action for indemnity, in view of the fact that the school district would only have been passively negligent, and that Todd and Suburban Oil Company were actively negligent. The School District also asserts that the third-party complaint was barred by the statute of limitations since the action was not instituted within a period of a year, and since there was no notice served within the six-month period (1967 Ill Rev Stats, c 85, §§ 8-101, 102, 103).

It is alleged in the original complaint that Todd, an employee of Suburban Oil Company, was in the Mannheim School on October 28, 1963, in connection with the business of his employer which sold oil to the school. As Todd walked out of the gymnasium, he pushed open the door which swung out from the gymnasium. There were no windows in the door and nothing inside the gymnasium or outside where the door swung open, to warn anyone in the corridor outside the gymnasium that the door was being opened. When Todd opened the door, it struck Camille Gillette, the teacher, causing injury to her. Her action against Todd and Suburban Oil Company was based upon active negligence in opening the door without using due care.

The third-party complaint which was filed by Todd and Suburban Oil Company, after reciting the pendency of the action by Camille Gillette, charged the school with negligence based on improper design of the door, failure to provide a warning when the door was opened, failure to provide a door stop, failure to have a window in the door, failure to post warning signs inside and outside the door, and failure to install a buzzer or warning light. Third-party plaintiffs also alleged that their negligence, if any, was passive only, and the negligence of the school was active, and that, if a judgment was entered against the third-party plaintiffs, they should have judgment for a like amount against the school.

The trial court dismissed the third-party complaint assigning as grounds that the third-party plaintiffs were joint tort-feasors and were not entitled to contribution in Illinois. This rule of noncontribution between joint tort-feasors is not applied rigidly and in an inflexible manner. In Chicago & Illinois Midland Ry. Co. v. Evans Const. Co., 32 Ill2d 600, 208 NE2d 573, the court noted that this noncontribution rule is no longer followed rigidly in Illinois. The court in Sargent v. Interstate Bakeries, Inc., 86 Ill App2d 187, 229 NE2d 769, in a considered opinion, reviewed the history of the problem in Illinois and outlined the rule which has been followed in subsequent cases. The court stated (at page 197):

“To alleviate the harsh results that would be caused by the uniform refusal to allow contribution, the courts of Illinois have developed indemnification as an exception to the rule. ... At common law the cases in which indemnity was allowed involved a defendant held liable without personal fault, typically ■master-servant cases and cases where the defendant was subject to a nondelegable duty. Due to the restrictions on the right to contribution, indemnity was expanded to allow recovery to a party not completely free of fault. . . . Our courts now permit one tortfeasor to recover from another if there is a qualitative distinction between the negligence of the two. As it is commonly stated, a passively negligent tortfeasor may obtain indemnification from an actively negligent tortfeasor.”

The entire theory is discussed at length in Muhlbauer v. Kruzel, 39 Ill2d 226, 224 NE2d 790. As a result of judicial precedents, we have a rule in this State that a party who is merely passively negligent may seek indemnity from one whose active negligence primarily caused the damage or injury.

There are times when it is difficult to determine whether the conduct of a party is active or passive. A number of cases have treated the problem where a plaintiff has been injured by a defective condition on the property owned by a certain defendant. The defendant-owner of the property has then shown that the condition causing the injury was caused by another defendant, and that the defendant-owner’s only negligence was the failure to discover the defective condition. In such cases, the owner of the property has been found to be entitled to be indemnified by the defendant whose negligence caused the injury, on the theory that the negligence of defendant-owner was passive, while the negligence of the other defendant was active (Gulf, M. & O. R. Co. v. Arthur Dixon Transfer Co., 348 Ill App 148, 98 NE2d 783; Moroni v. Prepakt, Inc., 24 Ill App2d 534, 165 NE2d 346). A typical case involving active and passive negligence claims, was Harvan v. Arthur C. Trask Co., 47 Ill App2d 403, 198 NE 19. In that suit, Harvan sued Trask as a result of the injuries sustained when a wall fell upon him while he worked on Trask’s property. Trask brought in Pennoyer who was loading empty barrels on the Trask property and in so loading caused the wall to fall. Trask successfully alleged that his negligence was passive while that of Pennoyer was active. A similar situation existed in D’Amico v. Moriarty Meat Co., 47 Ill App2d 63, 197 NE2d 445.

In the case before us we have the converse of the situation which arises in the typical case where the landowner is sued. In the instant case, the defendants whose physical act caused the injury (Todd and Suburban Oil Co.) were made original defendants. They seek to bring in the owner of the property as a third-party defendant. Todd and Suburban Oil Co, can only be justified in bringing in the school district as a third-party defendant if there is a possibility that the school might be required to indemnify the third-party plaintiffs in the event judgment is entered as against them. As stated in Muhlbauer v. Kruzel, supra, at page 229:

“Section 25(2) of the Civil Practice Act permits a defendant to implead as a third-party defendant any person ‘not a party to the action who is or may be liable to him for all or part of the plaintiff’s claim against him.’ (Ill Rev Stats 1965, chap 110, par 25(2).) The purpose of this section is the same as that of Federal Rule 14 . . . which is ‘to save the time and cost of a reduplication of evidence, to obtain consistent results from identical or similar evidence, and to do away with the serious handicap to a defendant of a time difference between a judgment against him, and a judgment in his favor against the third party defendant.’ ”

As stated in Muhlbauer v. Kruzel, supra (at page 230), “The section is not a device for tendering a new defendant to the plaintiff, nor does it create substantive rights. Consequently, a third-party complaint will be dismissed if it fails to state a cause of action by the defendant against the third-party defendant.” The school district (in the instant case) could not be impleaded for indemnification purposes unless the Third-Party complaint and record disclosed facts showing a possibility of recovery, on the indemnification theory to which we have referred in this opinion, by Todd and the Suburban Oil Company as against the school district. From the record it is apparent that the conduct of Todd and Suburban Oil Company if found to be negligence in the principal action could only be classified as active negligence. Todd’s action in physically pushing open the gymnasium door caused the door to strike and injure plaintiff. It is obvious from the record that it was not the condition of the door alone or of the corridor or gymnasium which caused the injury to plaintiff. It, at the very least, required the active, and potentially negligent, operation by Todd to cause the injury. If Todd and Suburban Oil Company were in fact guilty of active negligence, there could be no indemnity from the school district irrespective of whether the negligence of the school district was classified as active or passive (Chicago & Illinois Midland Ry. Co. v. Evans Const. Co., 32 Ill2d 600, 208 NE2d 573).

Courts of review have been reluctant to dismiss actions involving third-party complaints on the pleadings alone, where the issue was whether negligence was active or passive, unless it was clear from the pleadings that no recovery could be had against the impleaded third-party defendant. In Harvan v. Trask, supra, at page 408, the Appellate Court stated:

“Trask’s third party action for indemnity involves factual questions, the resolution of which is ordinarily within the province of the jury, and prior to the hearing of evidence it would be difficult, if not impossible, for a court to say whether or not a third party complainant is entitled to relief.”

In D’Amico v. Moriarty Meat Co., supra (at page 67), the third-party complaint was stated to require at least the showing of a “possibility of a recovery over.” We have had occasion in this Court to consider this question in Campbell v. Joslyn Mfg. & Supply Co., 65 Ill App2d 344, 212 NE2d 512. We stated in such case (at page 351) that if the third-party complaint set forth a claim which may have substance, then the trial court should not dismiss the complaint in the pleading stage merely on the argument that there are allegations of active negligence in the original complaint against the third-party plaintiff. There must, however, be a factual allegation showing a possibility of recovery. As stated in Muhlbauer v. Kruzel, supra (at page 231), “We recognize that the policy of section 25(2) can be frustrated by a rigid and formal approach to the pleadings; nevertheless, a third-party complaint must disclose some relationship upon which a duty to indemnify may be predicated.” This means that the third-party complaint must disclose facts, and not conclusions, upon the basis of which a possibility of indemnification is shown.

If in this case facts were alleged which disclosed a possibility of recovery, dismissal on the pleadings alone would not have been proper. On the record before us, however, Suburban Oil Company and Todd obviously had no possibility of recovery as against the school district. Eegardless of the proof as to how the injury actually occurred to Camille Gillette, it was still the physical act of Todd which primarily caused the injury (if recovery were allowed in the principal case). This would certainly be held to be active negligence. Even if the negligence of the school was also considered as “active,” Todd and Suburban Oil Company would not be entitled to indemnity on their third-party complaint. If the original action had been against the school district, and it filed a third-party complaint as against Todd and Suburban Oil, then it would be necessary to hear the evidence to determine if the conduct of the school was active or passive on the basis of the record before us. It is clear, however, that there is no question but that the conduct of Todd and Suburban Oil Company (if found to be negligent) constituted active negligence and that the dismissal of such complaint was proper.

Although we believe there is merit in the further contention that the third-party complaint was barred by the statute of limitations, in view of our conclusion in this case, we find that it is not necessary to make a determination of such issue.

The order of the Circuit Court of Cook County will, therefore, be affirmed.

Affirmed.

STOUDEE and SCHEINEMAN, JJ., concur.


author: JUSTICE CRAVEN.

text:
    City of Chicago, a Municipal Corporation, Plaintiff-Appellant, v. Chicago Title & Trust Company, Trustee Under Trust No. 37335 and Deed in Trust, Dated February 1, 1955, Oscar W. Berkson and Unknown Owners, Defendants. Oscar W. Berkson, Marshall Berkson, Sylvia Berkson and Chicago Title and Trust Company, Trustee, Defendants-Appeilees.
    Gen. No. 52,495.
    First District.
    February 24, 1969.
    Raymond F. Simon, Corporation Counsel of City of Chicago, of Chicago (Marvin E. Aspen and Edmund Hatfield, Assistant Corporation Counsel, of counsel), for appellant; George C. Rabens, of Chicago (S. Joseph Formusa, of counsel), for appellees.
   Opinion by

JUSTICE CRAVEN.

Not to be published in full.


text:
    Fairfield Savings and Loan Association, etc., Plaintiff, v. Harriet Kroll, et al., Defendants. Harriet Kroll, Cross-Plaintiff and Third-Party Plaintiff-Appellee, v. Anna Vitello, et al., Defendants, Sam Mormino, Cross-Defendant and Third-Party Defendant-Appellant.
    Gen. No. 52,757.
    First District.
    February 24, 1969.
    Rehearing denied April 7, 1969.

      L. Louis Karton, of Chicago, for appellant.
    Simon & Ingram, of Chicago (John D. Ingram and Robert B. Simon, of counsel), for appellee.
   ALLOY, P. J.

The cause before us originated as a foreclosure action on a mortgage to Fairfield Savings and Loan Association (hereinafter called “Fairfield”) against Harriet Kroll, a defendant, and cross-plaintiff in the third-party action. The third-party complaint sought damages on the basis of the contention that Harriet Kroll was defrauded in connection with her purchase of the real estate being foreclosed and through the activities of defendant, Sam Mormino, in obtaining such mortgage on the property and in the conduct of the transaction.

Plaintiff Kroll noted a three-apartment frame building for sale on January 19, 1964. The realtor was listed as Top Realty Company which was owned and operated by defendant, Sam Mormino. Harriet Kroll then entered into a contract through the real estate broker, Mormino, with the owners of the building. The sale price of the building was $23,500 and the pertinent provision in the contract provided specifically that it was contingent on the ability of the buyer or Top Realty Co. to secure a first mortgage in the sum of $15,000 payable over a 15-year period at an interest rate of 6% per annum within 45 days from the date of the contract. The mortgage commission was not to exceed 2%. It further provided, if the buyers or the realty company failed to secure the mortgage within the 45-day period, that the contract was to be void and the earnest money was to be refunded to the buyer. Plaintiff Kroll paid a down payment of $2,000 to Mormino. The record shows that Mormino attempted to obtain a mortgage for plaintiff Kroll by sending her to Liberty Savings and Loan Company, and also through the owners to see if the owners would accept a mortgage from the purchaser in connection with the sale. By April 11, 1964, neither Harriet Kroll nor Mormino was able to obtain a mortgage for her on the property. On such date, the contract was marked cancelled by Mormino, but Mormino noted that there was a 45-day extension of time within which to obtain a mortgage although the owners appear from the record never to have consented to such extension by Mormino.

An Edward Lesiak testified that he was in the Mormino Realty Office when plaintiff Kroll was present and that Mormino introduced her to him. He stated that he would help her get a loan and testified that he gave her his business card. He also testified that he received a call from her and that she wanted him to get her a loan which he did by purchasing the property himself and obtained a loan with Fairfield Savings and Loan. Mormino denied that he introduced Lesiak to plaintiff Kroll and denied any contact at all with Lesiak with regard to the purchase and loan at Fairfield. There was evidence, however, that Mormino and Lesiak were friends and Mormino had referred some insurance business to Lesiak. Lesiak was in the insurance business. Plaintiff Kroll testified that she had never met Lesiak and knew nothing about any loan he obtained for her and that the first time she even knew of the transaction with Fairfield was when she received a loan payment book in the mail, the loan book being made out to Edward Lesiak.

The record discloses that plaintiff Kroll testified that Mormino had told her he would get someone to sign for the mortgage. He then requested that she bring him an additional $6,000, which she did, making a total payment of $8,000. It appears from the record that Lesiak applied for a loan on the property at Fairfield of $15,500. With the $8,000 which Harriet Kroll was going to pay, this would make the purchase price of $23,500. Harriet Kroll was not involved in the loan proceedings in any way. She was not present at the closing of the purchase of the property. The sellers along with the Lesiaks and Mormino were present at the closing. Sellers were represented by an attorney as were the Lesiaks. An attorney named Raszus was also present and stated that Mormino had called him to represent Harriet Kroll. The attorney said he talked with Harriet Kroll on the telephone about the transaction but plaintiff Kroll denied ever talking with Raszus on the telephone or paying him for representing her. She did testify that Mormino took her to meet Raszus, but she did not ask him to represent her. At the closing at the loan company, a warranty deed was given from the owners to Edward Lesiak, and Edward Lesiak and wife then signed a $15,500 mortgage with Fairfield. Plaintiff Kroll was not present, but later she was sent a quitclaim deed from the Lesiaks, a title policy showing title insured in the Lesiaks, and still later she was mailed a payment book from Fairfield, also in the name of Edward Lesiak. No assignment of any of the leases in the building was made or given to her. It appears from the record that no one explained to plaintiff Kroll the mechanics of the transaction. After Miss Kroll had paid the additional $6,000 for the down payment she was told by Mormino that she could move into the apartment building. This was done in June or July, 1964. Harriet Kroll stayed there until September of 1964, and collected rent during that period. In September of 1964 she left on a trip to Europe advising the previous owner, then living in the apartment house, that if there were any problems such tenant should get in touch with plaintiff Kroll’s brother.

Plaintiff Kroll had never made any payments on the loan as she contended she had no payment book in her own name and wanted one in her own name before she would make any payments. While plaintiff Kroll was gone, the electric power was shut off and several pipes froze before Harriet Kroll returned. Following her return she was informed by Fairfield that they were going to foreclose. An attempt was made to sell the property without success. In conjunction with the foreclosure action, as indicated previously, plaintiff Kroll filed a third-party action naming the previous owners, Mormino and Lesiak as defendants and in such action sought damages against them for fraud in the purchase and mortgage transaction. It appears from the record that Lesiak had filed a voluntary petition in bankruptcy. The previous owner of the property and Fairfield were removed from the third-party action for fraud on a motion to strike and dismiss the complaint. Following hearing in the cause, the judgment for $8,497.80 was entered against Mormino and Edward Lesiak. This figure was determined by adding, to the $8,000 which Harriet Kroll had delivered to Mormino, interest at the rate of 5% from the date of the purchase with rents which Miss Kroll had received deducted from the total amount, and also the amount of the fair rental value of the apartment which Harriet Kroll had occupied was also deducted. Of particular significance, the record disclosed that during this time, Harriet Kroll was hard of hearing, confused and sometimes incoherent.

Defendant in the cross-complaint, Mormino, has appealed to this Court and asserts (1) that the third-party complaint does not state a cause of action as against him; (2) that the court erred in denying the motions to strike and dismiss for summary judgment and for a finding in Mormino’s favor at the close of the evidence; (3) that the evidence in the record fails to show that the third-party plaintiff suffered any injury or damage to support the decree and that, if it does, the finding against Mormino for more than the broker’s commission was improper; (4) that the chancellor erred in permitting the third-party plaintiff to produce evidence of her mental capacity; and (5) that there was no clear and convincing evidence that defendant Mormino was guilty of the alleged conspiracy to cheat and defraud plaintiff Kroll.

The cases in this State make no precise definition of what constitutes fraud but rely upon a general definition of fraud as related to particular facts. In Illinois Minerals Co. v. McCarty, 318 Ill App 423, at 434-5, 48 NE2d 424, the court, in considering what would constitute fraud stated:

“Acts which may constitute fraud extend to every possible case in which a fiduciary relationship exists. It may be moral, social or business. The rule embraces those informal relations which exists when, one man trusts and relies upon another. The relationship of principal and agent is a familiar instance in which the principal of fiduciary relationship applies, in the strictest sense. Fraud may be based on false representation. It may be based on concealment; on fraudulent devises; on a wilful, malevolent act directed to perpetrate a wrong to the rights of others ; unlawful appropriation of another’s property by design, or conduct that operates fraudulently on the rights of others, and is so intended. In short, it comprises all acts, of omissions and concealments, including breach of legal or equitable duty, trust or confidence, resulting in injury to another. Deceit is a species of fraud. Sometimes the words are used interchangeably.”

As stated in Citizens Savings & Loan Ass’n v. Fischer, 67 IllApp2d 315, at 322, 214 NE2d 612:

“There is no general rule for determining what facts will constitute fraud; whether or not it is found depends upon the special facts of each particular case. Majewski v. Gallina, 17 Ill2d 92, 160 NE2d 783. Fraud includes anything calculated to deceive, whether it be a single act or combination of circumstances, whether suppression of truth or suggestion of what is false, whether it be by direct falsehood or by innuendo, by speech or by silence, or by word of mouth or by look and gesture.”

The complaint filed by plaintiff, Kroll, in the instant case is quite detailed and outlines numerous instances of what could well amount to fraud. It does not merely list general conclusions but sets forth specific facts such as dates, activities and conversations which allege the existence of fraudulent conduct. It specifically alleges that defendant, unable to get a mortgage for plaintiff called for by the agreement which defendant himself prepared, contrived a scheme whereby he took $8,000 of plaintiff’s money and intentionally arranged for Lesiak, a codefendant, to masquerade as the purchaser and mortgagor of the property in question. It alleges that as a result of this scheme, plaintiff Kroll lost her $8,000 and received a quitclaim deed, not a warranty deed, a title policy showing title in someone else’s name, no mortgage in her name (with the consequent lack of the relationship to the lending institution), no leases or assignments or bill of sale for any personalty involved (both called for by the terms of the contract).

Mormino contends that he was merely acting as the agent for the seller and thus stood in no fiduciary relationship to Harriet Kroll. The record in the case, however, shows that Mormino undertook to obtain a mortgage for Harriet Kroll and assist her in financing the purchase. In view of her inability to readily understand such matters, when he did this, he became an agent for Harriet Kroll and thus stood in a fiduciary relationship to her. While he contended that he had nothing to do with obtaining the mortgage for Harriet Kroll, there is evidence that he contacted the seller about taking a mortgage back and, also, evidence that he worked with Lesiak and Fairfield to obtain a loan on the premises. Mormino obviously had a duty to reveal to plaintiff Harriet Kroll all aspects of the transaction and to see that she was informed about the purchase of the apartment building and the financing. This duty became even more significant in the case before us because of the confused mental state of Harriet Kroll. It is apparent from the record that Harriet Kroll was not familiar with real estate purchases and was the type of person who was easily confused in business matters. The testimony indicates that Mormino was aware of this condition. As a consequence, Mormino should have been particularly careful and solicitous to the end that Harriet Kroll was completely informed of everything that was going on and so that she would be advised of the time of closing, the type of deed she would receive, how the payments were to be made on the mortgage and all other matters reasonably relating to the transaction. Mormino should also have advised her of the significance and importance of having an attorney represent her at the closing if there was any question in her mind as to the legal effect of the transaction.

The record shows that Mormino did not inform plaintiff Harriet Kroll of the fact that Lesiak was going to take title in Lesiak’s name and obtain the mortgage in such name at Fairfield and then quitclaim the property to Kroll. There is no evidence to show that Mormino or anyone informed Harriet Kroll of this procedure or obtained her consent to proceed in this manner. Mormino did not make arrangements to have Harriet Kroll at the closing at Fairfield. She should have been present at the transaction with an attorney to fully inform her of her obligations. This failure by Mormino was taken by the court as a strong indication that Mormino wished to conceal the true facts from Harriet Kroll when in fact he had a duty to reveal them to her. The circumstance that Mormino had attorney Raszus present at the closing presumably to represent Harriet Kroll (when in fact Raszus was not hired by Harriet Kroll) was taken by the court as a further indication that Mormino was attempting to conceal the true facts of the purchase from Harriet Kroll. Raszus was later paid by Mormino. Mormino knew that Harriet Kroll was confused in business matters and he should have made it clear to her that she should be present at the closing and represented by an attorney of her choice.

The evidence shows that Harriet Kroll was relying on Mormino to see that she was protected in connection with the purchase. Mormino failed to obtain a title insurance policy insuring title to the apartment building in Harriet Kroll’s name, even though she was relying on him to see that she received such policy. Mormino also failed to see that leases on the apartment were assigned to Harriet Kroll. The record indicated that the failure to obtain the leases may have led to further damage to the building, since two tenants moved out while Harriet Kroll was away during September, October and November of 1964. Mormino also failed to notify Fairfield Savings and Loan that Harriet Kroll was the party who was actually making the purchase and that Harriet Kroll was going to be responsible for making the loan payments. Mormino likewise failed to notify Harriet Kroll that it was Fairfield that was the loan company involved. Harriet Kroll testified that the first time she heard about Fairfield Savings was when she received the Fairfield Savings Loan payment book with Lesiak’s name on it. There is evidence that Mormino told Harriet Kroll that she was the owner of the property and could move in after the closing on June 5, 1964. She was not present at the closing. The quitclaim deed from the Lesiaks to Harriet Kroll was not notarized until June 29, 1964, and was not recorded until July 23,1964. Harriet Kroll did not receive the quitclaim deed until sometime thereafter.

If Harriet Kroll had been a knowledgeable participant in the transaction, then the trial court’s conclusion would not have been justified. We cannot say, in view of the combination of all the facts and circumstances coupled with a knowledge of Harriet Kroll’s inability to understand real estate transactions, as shown by the record, that the trial court was not justified in finding the existence of a fiduciary relationship and a failure of Mormino to inform Harriet Kroll of pertinent facts relating to the transaction. The foreclosure and loss stem largely from the mortgage arrangement involving Lesiak and Miss Kroll’s inability to understand her rights and responsibilities. Such evidence supports the finding of the court on the question of fraud.

The trial court in making the finding of damages, concluded that Harriet Kroll was entitled to a return of her $8,000 which she paid as a down payment and adjusted this figure further for rents received and the reasonable value of the rent used by Harriet Kroll and the utilities paid by her. The trial court also allowed Harriet Kroll 5% interest on her $8,000 from the date the sale was concluded. The measure of damages which results from fraud of a defendant should not be the gain received by defendant, but rather the injury to plaintiff (Lickus v. O’Donnell, 321 Ill App 144, 147-8, 52 NE2d 271; Horne v. Walton, 117 Ill 141, 145, 7 NE 103). On the basis of the record before us, we cannot say that the court was wrong in finding that damage accrued to Harriet Kroll by reason of the conduct of Mormino and Lesiak. If Mormino had fulfilled his duty to Harriet Kroll and properly informed her what was going on she would have known who her loan was obtained from, would have known when the leases expired and, presumably, would have made payments on the loan. She presumably also would have taken steps to manage her property. Harriet Kroll, according to the record, became confused when she received a loan payment book showing a loan in someone else’s name with no explanation from her agent Mormino. It is quite possible she felt that she was not clearly the owner of the property, and, since the loan books were in another name, she did not make loan payments since the payment book did not list her name as the obligor.

The respective ability, capability and degree of understanding of Harriet Kroll in relationship to Mormino and the degree of trust reposed in Mormino by Harriet Kroll, as related to the agreement of the parties and all of the testimony, was properly received by the court. The court likewise had the benefit of testimony of another person well acquainted with Harriet Kroll who testified that at the time of this transaction Harriet Kroll was confused and incoherent and that Harriet Kroll had suffered a nervous breakdown in 1952, which apparently had a continuing effect on her. As stated in Hinkley v. Wynkoop, 305 Ill 115, 122-3, 137 NE 154:

“Where mental weakness of one party to a transaction, not of itself sufficient to destroy capacity, is accompanied by undue influence, inadequacy of price, advantage taken of pecuniary necessities, ignorance and want of advice, misrepresentations or concealment, and the like, a contract or conveyance procured under such combined conditions will be defeated or set aside. It is not simply a presumption of invalidity which thus arises, but the presumption has become established. (2 Pomeroy’s Eq Jur § 947, note 3.) The court was warranted in holding the transaction in question fraudulent, and that appellee is entitled to be relieved of the unconscionable contract or to be reimbursed for her damages if she has to assume the burden of the contract.”

The trial court had the benefit of observing all of the parties in this cause. As we have stated on numerous occasions, the reviewing court will not substitute its judgment for that of the trial judge who has the advantage of seeing and hearing the witnesses in open court. The decision of the trial court should be sustained when supported by evidence. On the basis of the record before us we must, therefore, conclude that the judgment of the Circuit Court of Cook County should be affirmed.

Affirmed.

STOUDER and CULBERTSON, JJ., concur.


author: MR. JUSTICE DAVIS

text:
    Olga Perec, Administrator of the Estate of Karlo Bytner, Deceased, and Helen Bytner, Deceased, and Michael Perec, a Minor, by Olga Perec, Mother and Next Friend, Plaintiffs-Appellants, v. Frederick G. Little, Defendant-Appellee.
    Gen. No. 68-74.
    Second District.
    February 25, 1969.

      Kamin, Stanley, Burtker and Steinberg, of Chicago, for appellants.
    Corrigan, Mackay, Quetsch and O’Reilly, of Wheaton, for appellee.
   MR. JUSTICE DAVIS

delivered the opinion of the court.

The plaintiffs brought this action seeking, in Count I of the complaint, damages for the alleged wrongful deaths of Karlo Bytner and Helen Bytner; and in Count II, damages for personal injuries allegedly sustained by Michael Perec, a minor, the son of plaintiff, Olga Perec.

The trial court directed a verdict for the defendant at the close of the plaintiffs’ case and stated that the evidence failed to show negligence on the part of the defendant; and further, as to Count n, that the evidence failed to show any damages sustained by the minor, Michael Perec.

The evidence, on which the trial court directed verdicts for the defendant, indicated that the accident took place on August 17, 1965, at about 7:30 p. m. Karlo Bytner, accompanied by his wife, Helen, and his grandson, Michael Perec, was driving his Falcon car in an easterly direction on Route 64, in Du Page County.

Route 64, at the place in question, was a four-lane highway, with adjoining shoulders on each side. Bytner had intended to turn south, off Route 64, onto Prince Crossing Road, to take his grandson to the football practice field. He missed this turn and proceeded easterly on Route 64, approximately one-half to three-quarters of a mile, to where Fair Oaks Road formed a “T” intersection with Route 64 from the north. At this point, he was making a left turn when his car was struck by the defendant’s car.

The testimony of Michael was the most beneficial evidence offered on behalf of the plaintiffs. When viewed in its aspect most favorable to the plaintiffs, it indicated that after missing the turn at Prince Crossing Road, grandfather Bytner proceeded on eastward in the outside of the two eastbound lanes of traffic of Route 64; that as he approached the crest of a hill at the Fair Oaks intersection, he put on his left turn signal and began to drive the car into the inner of the eastbound lanes of traffic; that he traveled in the inner traffic lane for a little over 100 feet, stopped at the Fair Oaks intersection for three or four seconds and waited for a vehicle in the westbound lanes to pass so that he could turn left; and that he then proceeded to turn. Michael looked back at that time and saw some cars behind him, and this was the last thing he remembered.

The plaintiffs next produced the evidence deposition of Mark Lohse, who at the time of the accident was riding in a car with his father. Lohse stated that his car was traveling in the outside eastbound lane, immediately behind four vehicles, the first of which was driven by Bytner, and the third by the defendant. He noticed the Bytner car, which was traveling in the outside traffic lane. The three other intervening cars were in the inside eastbound lane—that nearest to the center line of Route 64. He also stated that the Bytner car made a left-hand turn from the outside lane in a northerly direction and towards Fair Oaks Road; that the first and third cars behind the Bytner car “dodged” it by turning into the outside lane; that the defendant’s car turned left, towards the westbound lanes of traffic of Route 64 in an attempt to avoid a collision; and that the Bytner car and the defendant’s car collided in the middle of the “T” intersection of Route 64 and Fair Oaks Road, and partially in the westbound lanes of traffic of Route 64.

Lohse described the incident in further detail, and stated that the car driven by Bytner was traveling approximately 35 m, p. h., and slowed down to about 20 m. p. h. as it approached Fair Oaks Road, and that then one or two of the right wheels were off the road on the south shoulder of Route 64. He further stated that Bytner attempted a left-hand turn from this position; that he gave no signal whatsoever; and that the defendant’s vehicle was then about 175 feet behind Bytner’s and was traveling approximately 65 m. p. h. As Bytner made the turn, the defendant turned his car across and into the westbound traffic lanes of Route 64 in an attempt to avoid the Falcon. At this time, the defendant’s car was slowing down and its tires were squealing. Lohse further said that the two outside lanes of traffic near defendant’s car were then occupied by the cars that had been immediately preceding and following the defendant’s car.

The defendant testified, under section 60 of the Civil Practice Act, that prior to the accident he had been to Beloit, Wisconsin, on business; drank two beers there and left Beloit at about 6:00 p. m.

He further testified that as he approached the crest of the hill just prior to reaching Fair Oaks Road, he was traveling approximately 60 m. p. h.; and that the speed limit at this point was 65 m. p. h. He knew that other vehicles were behind him and to his right. When he first noticed the Bytner Falcon, it appeared to him that it was going to make a right turn; it was slowing down, and its right front wheel was off on the shoulder, beyond the outside eastbound traffic lane. At the time he saw this, he “hit” his brakes to flash his lights to signal to the cars behind him that there was cause for concern ahead. He testified that he continued driving in the inside lane, and slowed down to approximately 50 m. p. h. as the Bytner car continued to edge to the right.

It was at this time that the defendant flashed his lights, and about the time the Falcon made a wide left turn and proceeded in front of him. Neither the Bytner car nor its driver had given any turn signal or indication of any type. When the defendant saw the Falcon “swoop over” to the left, he hit his brakes and turned to the left as sharply as he could. He stated that there was no traffic in the westbound lanes and that was the only direction he could go. The point of impact was in the inside, west lane of traffic of Route 64. He stated that at the moment of impact his speed was reduced to approximately 30 m. p. h.; and that after the police officers arrived, he overheard Michael Perec tell the police officers that he told his grandfather not to make a “U” turn at that point in the road.

In directing the verdicts against the plaintiffs, the trial court stated that if it were to consider only the testimony of Michael Perec, there would be some evidence to substantiate a case of negligence against the defendant; however, that Michael’s testimony was neither clear nor convincing, and was somewhat garbled; and that some of his statements were contradictory.

We have set forth herein only that part of Michael’s testimony which was most favorable to the plaintiffs’ cause. But, as the trial court noted, his testimony did not find any support in any of the other evidence before the court.

In testing whether the verdicts should be directed for the defendant, it was the duty of the trial court to examine all of the evidence, in its aspect most favorable to the plaintiffs, and if it so overwhelmingly favored the defendant that no contrary verdict based on that evidence could ever stand, then it was proper to direct verdicts for the defendant. Pedrick v. Peoria & Eastern R. Co., 37 Ill2d 494, 510, 229 NE2d 504 (1967).

Since Pedrick, the determination of whether or not a verdict should be directed is not made to depend on whether a search of the record reveals any evidence which might reasonably favor the nonmoving party. The trial court now may view, and weigh, all of the evidence, and even though there be evidence tending to substantiate the nonmoving party’s case, if that evidence is so overwhelmingly contradicted by the remaining evidence that a verdict based thereon could never stand, then the court may direct a verdict for the movant. Pedrick v. Peoria & Eastern R. Co., supra, 511; Dimitrijevic v. Chicago Wesley Memorial Hospital, 92 Ill App2d 251, 263, 264, 236 NE2d 309 (1968).

Viewed in relation to all of the other evidence, particularly that of plaintiffs’ own disinterested witness, Lohse, the testimony of Michael Perec is of dubious probative value. He testified that his grandfather had given a turn signal, had driven into the inside eastbound traffic lane and proceeded there for over a 100 feet before stopping, at which time he waited for several seconds for a westbound vehicle to pass. Lohse, however, substantiated defendant’s version: that Bytner’s car was in the outside traffic lane, even partially on the shoulder, and from this point proceeded to make a turn to the left, across the lanes of traffic, without a signal or warning. If we view the evidence in its aspect most favorable to the plaintiffs, we accept that Bytner was attempting to turn onto Fair Oaks Road rather than to make a “U” turn. This does not, however, alter the inescapable conclusion that the defendant was not negligent and that the plaintiffs’ intestate, Bytner, was guilty of contributory negligence.

We believe that the testimony of Lohse, taken with that of the defendant, under section 60 of the Civil Practice Act, renders Michael Perec’s version of the collision inherently improbable, and that the trial court properly directed a verdict for the defendant.

The plaintiffs further contend that the trial court erred in refusing to dismiss Count II of the complaint upon the plaintiff’s motion. The defendant received notice that the plaintiffs would seek to dismiss Count II of the complaint, which sought damages for injuries to Michael Perec, on the day prior to trial. The purpose of the motion was to prevent the defendant from testifying under section 2 of the Evidence Act (Ill Rev Stats 1967, c 51, par 2). The motion was heard and denied immediately prior to the commencement of the trial. The defendant contends that the trial court could properly exercise its discretion by denying the motion for the reasons that proper notice of the motion was not given and that the plaintiff did not agree to the payment of costs.

Section 52 of the Civil Practice Act (Ill Rev Stats 1967, c 110, par 52), provides for voluntary dismissal of a lawsuit prior to trial upon the conditions that: (a) notice be given, and (b) plaintiff pay costs. Section 49 of the Civil Practice Act (Ill Rev Stats 1967, c 110, par 49), provides for notice of motions according to rules. The local rules of the Eighteenth Judicial Circuit provide for four day’s notice of motions, except where such notice requirement is waived by stipulation.

The plaintiffs’ eleventh-hour motion would have had a substantial effect on the defendant’s trial procedures and strategy. The presence of Count II of the complaint, and no prior attempt to obtain separate trials, presumably suggested to the defendant’s counsel that his client would be permitted to testify at the trial.

We can only speculate that counsel’s procedural plans and strategy in connection with the trial would have been altered considerably if his client were to be unavailable for testimony.

Under these circumstances, we can see a substantial prejudice to the defendant if the plaintiffs had been permitted, at the eleventh-hour, to dismiss Count II of the complaint. The case had been on file for a long period of time. The plaintiffs had ample opportunity to determine the procedural method of their choice and alter their trial strategy within sufficient time before the trial so as not to prejudice the defendant. In view of this, we are of the opinion that the trial court properly exercised its discretion in denying the plaintiffs’ motion, which was made without requisite notice and without payment of costs as required by the Civil Practice Act and the local rule.

For the reasons stated herein, the judgment of the trial court is affirmed.

Judgment affirmed.

ABRAHAMSON, P. J. and SEIDENFELD, J., concur.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Sotirios T. Manikas, Defendant-Appellant.
    Gen. No. 68-87.
    Second District.
    February 25, 1969.
    Rehearing denied and supplemental opinion April 1, 1969.

      Klein, Thorpe, Kasson and Jenkins, of Chicago (Constance Kasson, of counsel), for appellant.
    William V. Hopf, State’s Attorney of Du Page County, of Wheaton, and J. Michael Fitzsimmons, Jr., Assistant State’s Attorney, for appellee.
   MR. JUSTICE DAVIS

delivered the opinion of the court.

The defendant, who was charged with having committed the offense of driving while his operator’s license was revoked, in violation of section 6-303 of the Illinois Motor Vehicle Act (Ill Rev Stats 1965, c 95½, par 6-303), waived his right to trial by jury, was tried by the court, found guilty and sentenced to ten days in the county jail, with credit for three days, considered as served. He appealed from this judgment.

He was arrested on the East-West Tollway in Du Page County and was issued a traffic ticket and complaint charging him with the violation of section 6-119 (d) of the Act (Ill Rev Stats 1965, c 95½, par 6-119 (d)) in that he was driving in violation of the restrictions imposed by his restricted driver’s permit. One week later, the arresting officer filed the complaint under which the defendant was tried and sentenced, and thereafter, the complaint, charging a violation of section 6-119 (d) of the Act, was dismissed.

At the trial, the People offered, and the court admitted in evidence, a certificate of the Secretary of State (herein called Secretary) which set forth the defendant’s record with reference to the status of his operator’s license. It reflected that his license had been revoked on August 5, 1965; that a restricted driver’s permit was issued to him on October 6, 1965, to expire October 6, 1966; that the Secretary received a report of the defendant’s conviction of a motor vehicle violation, and on December 20, 1965, extended the revocation of the defendant’s operator’s license until August 5, 1967; and that the defendant did not have a valid operator’s license on the date of said certificate: August 23, 1966. The arresting officer testified on behalf of the People.

The defendant did not testify, but did offer—and the court received in evidence—a copy of his restricted driving permit which carried an expiration date of October 6, 1966. It reflected that the restrictions permitted the defendant to operate his car between the hours of 9:00 a. m. and 1:00 p. m., and 5:00 p. m. and 9:00 p. m., Monday through Saturday of each week, within the Chicago area, for his transportation while performing his duties as an insurance salesman.

It was 10:25 p. m., on August 6, 1966, when the defendant was arrested. He had visited his father in Aurora and, at the time of his arrest, was en route to Chicago. It would, thus, appear that he was then and there in violation of both the time and place restrictions specified in his driving permit.

Upon appeal, the defendant contends that his conviction for driving while his operator’s license was revoked is not authorized by section 6-303 of the Act since that section exempts from its provisions, any person who is allowed to drive by a restricted driving permit; that the complaint under which he was convicted failed to set forth the nature and elements of the offense of driving in violation of the restrictions which were imposed; and that the court erred in admitting into evidence the said Secretary’s certificate.

The People contend that the issuance of a restricted driving permit to a person whose operator’s license has been revoked, suspends the terms of such revocation only during the times and under the circumstances specified in the restricted permit; and that at all other times, the revocation is in full force and effect.

Section 6-303 of the Illinois Motor Vehicle Act provides that any person who drives a motor vehicle on any highway of this State at a time when his operator’s license is revoked as provided under the Act, except as may be allowed by a restricted driving permit issued under this Act, shall be punished by imprisonment for not less than seven days nor more than one year and there may be imposed in addition a fine of not more than $1,000.

Section 1-157 of the Act defines the terms, “Revocation of operator’s . . . license” as follows:

“The termination by formal action of the Secretary of a person’s license ... to operate a motor vehicle on the public highways, which termination shall not be subject to renewal or restoration except that an application for a new license may be presented and acted upon by the Secretary after the expiration of at least one year after the date of revocation.”

Section 6-208 (b) of the Act states that once an operator’s license has been revoked, he is not entitled to have it renewed or restored, but rather, he may apply to the Secretary for a new license, after the expiration of at least one year from the date of revocation.

Section 6-205 of the Act provides for the mandatory revocation of an operator’s license upon the Secretary receiving a report of the operator’s conviction of the offenses therein listed. And, section 6-206 thereof provides for the discretionary revocation by the Secretary, of an operator’s license under the circumstances therein enumerated. Each of said sections authorizes the Secretary to issue a driving permit to a person whose operator’s license has been revoked, which will grant to him the privilege of driving his car between his residence and place of employment or other proper limits, in order to prevent undue hardship; and each section provides:

“A restricted driving permit issued hereunder shall be subject to cancellation, revocation and suspension by the Secretary of State in like manner and for like cause as an operator’s or chauffeur’s license issued hereunder may be cancelled, revoked or suspended; except that a conviction upon one or more offenses against laws or ordinances regulating the movement of traffic shall be deemed sufficient cause for the revocation or suspension of a restricted driving permit.”

Under the provisions of section 6-210 of the Act, any person whose operator’s license has been revoked shall not drive a motor vehicle on a public highway in Illinois after such revocation, until an operator’s license has been obtained as permitted under the Act, except as permitted by a restricted driver’s permit issued under the provisions of section 6-205 (a).

It is apparent from these provisions, when read together, that it was the intention of the legislature that there should be no automatic restoration of an operator’s license after the one-year period of its revocation, or after such revocation as extended; and that the issuance of a restricted driving permit to a person whose operator’s license has been revoked, does not ipso facto restore or renew the operator’s license which has been revoked, but rather, such driver’s permit authorizes the licensee to drive a car upon the highways of the State, subject to the restrictions provided therein, and not otherwise. A driver’s permit is not an operator’s license, rather, it is a special type of permit issued to a driver whose operator’s license has been revoked, in order that he may drive his car subject to the restrictions specified and thereby avoid the undue hardship which would otherwise be imposed upon him and his family. If the restricted driver violates the restrictions specified in the permit, the permit may be revoked by the Secretary.

In the light of these statutory provisions, we believe it was the obvious intent of the legislature that a driver—whose operator’s license has been revoked and to whom a restricted driving permit has been issued—■ who drives in violation of the restrictions imposed by the permit, is guilty of the offense of driving while his operator’s license is revoked. We find no ambiguity in this legislation.

The defendant’s operator’s license was revoked. He was granted a restricted driving permit to alleviate a hardship situation. He was permitted to drive in accordance with the restrictions of his permit. Under the provisions of section 6-303 of the Act, any person who drives a motor vehicle on the public highways while his operator’s license is revoked except as may be allowed by a restricted driving permit, shall be punished as provided therein.

Section 6-119 of the Act authorizes the Secretary, for good cause shown, to impose restrictions suitable to the licensee’s driving ability, with respect to the type of, or special mechanical control device required on, a motor vehicle which the licensee may operate, or such other restrictions applicable to the licensee as the Secretary may determine to be appropriate to assure safe operation of the vehicle by the licensee. The defendant in the case at bar was not under a restriction with reference to any mechanical control which was applicable to him by virtue of some physical handicap. Consequently, section 6-119 had no application or pertinency in the case at bar.

The defendant also urges that the complaint against him failed to set forth the nature and elements of the offense with which he was charged. It read,

“that at or about the hour of 10:25 P. M. on or about the 9th day of August A. D. 1966 in said County and State Sotirios T. Manikas hereinafter called the defendant committed the offense of driving while license revoked in violation of Section 6-303 of Chapter 95% of the Illinois Revised Statutes of said State, in this, to wit; That the said defendant operated a motor vehicle, to-wit; a 1966 Chevrolet bearing 1966 Illinois motor vehicle registration number PD2497, along and upon the East-West Tollway at or near milepost 11%; that at said time and place defendant was operating a motor vehicle while his operator’s license was revoked.”

The defendant was not charged with the violation of the restrictions of his driving permit; he was charged with operating a motor vehicle while his operator’s license was revoked. At no time did he file a motion for a bill of particulars pursuant to section 114-2 of the Code of Criminal Procedure (Ill Rev Stats 1965, c 38, par 114—2).

We are of the opinion that the complaint was sufficiently specific to inform the defendant of the nature of the charge that he was called upon to defend, and that the record of his conviction is a bar to a subsequent prosecution for the same offense. See: People v. Crockett, 41 Ill2d 226, 242 NE2d 235, 236, 237 (1968); People v. White, 24 Ill App2d 324, 329-332 incl., 164 NE2d 823 (1960).

The defendant also urges that the trial court erred in admitting into evidence, on behalf of the People, the certificate of the Secretary relative to the status of his operator’s license. Duly authenticated or certified copies, or transcripts of public records, are admissible in evidence whenever the originals thereof would be admissible. People v. White, supra, 333.

Section 6-123 of the Act provides that “The Secretary of State shall maintain appropriate records of all licenses and permits refused, cancelled, revoked or suspended and of the revocation and suspension of driving privileges of persons . . . .” Section 6-124 provides that the Secretary may furnish, upon request, an abstract of a driver’s record.

A certified copy of these records of the Secretary, maintained pursuant to statutory mandate, under his signature and seal, are admissible in evidence. Thus, the trial court properly admitted into evidence the Secretary’s certificate relative to the status of the defendant’s operator’s license. People v. White, supra, 333.

Section 6-303 of the Act was amended in 1967 by adding thereto a provision that “an abstract issued by the Secretary of State pursuant to section 6-124 ... on request of a law enforcement agency, for the record of a named person as to the status of his motor vehicle operator’s license shall be prima facie evidence of the facts therein stated . . . .”

In Lubezny v. Ball, 389 Ill 263, 59 NE2d 645 (1945), at page 266 the court stated:

“In ascertaining the meaning and intent of the General Assembly in the construction of statutes, where no specific provision appears to aid such construction, recourse may be had to the language of subsequent acts of the same lawmaking body.”

If any question ever existed as to the propriety of admitting the Secretary’s certificate in evidence, it was removed by the amendment to section 6-303.

The defendant offered no rebuttal evidence to the record of the Secretary. He did not attempt to prove that he was driving in accord with the restrictions contained in his restricted driving permit. The evidence was sufficient to prove the identity of the defendant, establish the corpus delicti, and to prove that the defendant was guilty beyond a reasonable doubt.

On review, we will not disturb the judgment finding the defendant guilty on the basis that the evidence is not sufficient to convict, unless the evidence is so palpably contrary to the judgment, or unreasonable, improbable or unsatisfactory as to justify entertaining doubt as to the defendant’s guilt. Such doubt does not exist in the case at bar. Consequently, the judgment of the trial court is affirmed.

Judgment affirmed.

ABRAHAMSON, P. J. and SEIDENFELD, J., concur.

Supplement to Opinion on Denial of Petition for Rehearing

On petition for rehearing, the defendant strenuously contends that “the complaint failed to set forth the nature and elements of the offense of driving while license revoked in that it failed to allege that with respect to each element described by the statute defining the offense of driving while license revoked, the defendant acted while having one of the mental states required by the Criminal Code of 1961.”

The complaint is set forth verbatim in the opinion.

The rationale of the defendant is that:

“A ‘charge’ is defined as ‘a written statement presented to a court accusing a person of the commission of an offense and includes (a) complaint . . . .’ (Ill Rev Stats, c 38, § 102-8 (1967).

“ ‘Offense’ is defined as ‘violation of any penal statute of this State . . . .’ (Ill Rev Stats, c 38, § 102-15 (1967). (Emphasis added.)

“The phrase ‘penal statute’ is not defined by the Code of Criminal Procedure of 1963; however, that phrase has been defined ... in Superior Laundry & Linen Supply Co. v. Edmanson-Bock Caterers, Inc., 11 Ill App2d 132, at 134, 136 NE2d 610 (1956), as follows:

“A penal statute is defined to be ‘one which imposes a forfeiture or penalty for transgressing its provisions, or for doing a thing prohibited.’ (Potter’s Dwarris on Statutes, p 74.) A penalty ‘is in the nature of punishment for the non-performance of an act or for the performance of an unlawful act. It involves the idea of punishment, whether enforced by a civil or criminal procedure.’ ”;

that section 6-303 is a penal statute; that under section 111-3 (a) of the Code of Criminal Procedure, the complaint must set forth the nature and elements of the offense charged; and that the complaint failed to allege an essential element of the offense; namely, that the defendant acted either “intentionally,” “knowingly,” “recklessly,” or “negligently.”

He further argues that section 4-9 of the Criminal Code of 1961 (Ill Rev Stats 1967, c 38, § 4-9) sets forth specific tests by which the courts of Illinois are to determine whether an offense is one which involves absolute liability; that section 4-9 provides:

“A person may be guilty of an offense without having, as to each element thereof, one of the mental states described in Sections 4-4 through 4-7 if the offense is a misdemeanor which is not punishable by incarceration or by a fine exceeding $500, or the statute defining the offense clearly indicates a legislative purpose to impose absolute liability for the conduct described.” (Emphasis added.);

and that the first test requires a determination of whether the offense is a misdemeanor which is not punishable by incarceration or by a fine exceeding $500; that a “misdemeanor” is defined as “any offense other than a felony. . . .” (Ill Rev Stats 1967, c 38, § 2-11); that a “felony” is defined as “an offense punishable with death or by imprisonment in the penitentiary” (Ill Rev Stats 1967, c 38, § 2-7); that since a violation of section 6-303 of the Motor Vehicle Act is punishable by imprisonment for not less than seven days nor more than one year and in addition by a fine of not more than $1,000, the offense is a misdemeanor; that under section 4-9 of the Criminal Code, a person may not be guilty of this offense without having as an element thereof, one of the mental states described in sections 4-4 through 4-7 unless the statute defining the offense clearly indicates a legislative purpose to impose absolute liability for the conduct described, and that such legislative purpose is not clearly indicated in section 6-303.

The Committee Comments with reference to section 4-9 of the Criminal Code, set forth in SHA ch 38, pages 186 through 188, relate the problems attendant upon drafting the sections of the Criminal Code pertaining to mental state requirements and absolute liability. At page 188, the Committee Comments state:

“A very unsatisfactory situation thus existed in Illinois: numerous provisions appeared which were absolute in language; only a few of them had been interpreted as to their mental-state requirements; many of the remainder were felonies, or misdemeanors punishable by incarceration or severe fine; and no adequate rule existed for determining whether a particular provision, not yet interpreted by the courts, was to be regarded as implying a mental-state element or as imposing absolute liability. (The usual methods of interpretation are summarized in Remington, ‘Liability Without Fault Criminal Statutes,’ 1956 Wis L Rev 625, 629-32.)
“Section 4-9 represents only a partial solution of the problem—a general restrictive rule of interpretation. Another part of the solution is in the rephrasing of the Code provisions which define the specific offenses, to indicate clearly the intended mental-state elements, and the offenses in which mental state, for some cogent policy reason, is not an element.
“The first part of section 4-9 recognizes the type of offense which carries so little culpability that incarceration is not a part of the penalty, and the fine is less than $500. As indicated above, nearly one-third of the former Illinois code provisions which did not express mental state were in this category, as were many of the penal provisions appearing outside of the Code. In view of the difficulty of enforcing such provisions if mental state must be proved in each instance, the assumption seems proper that in these instances the omission of such a requirement is intended to create absolute liability. (See Model Penal Code Sec 2.05, comment at 145 (Tent Draft No. 4, 1955); Sayre, ‘Public Welfare Offenses,’ 33 Col L Rev 55, 68-72, 78-79 (1933).)
“In addition to permitting a construction requiring absolute liability in offenses punishable by incarceration or by a fine of not more than $500, the second part of section 4-9 expresses the policy that in other offenses not including a mental state in the definition only a clearly indicated legislative intent to create absolute liability should be recognized, and in all other instances, a mental-state requirement should be implied as an application of the general rule that an offense consists of an act accompanied by a culpable mental state, as expressed in Section 4-3. (See Model Penal Code, sec 2.05, comment at 145-6 (Tent Draft No. 4, 1955); Sayre, supra at 68-72, 79-83.)”

Section 6-303 is not a part of the Criminal Code. Consequently, it was not redrafted, along with other sections of the Code, to reflect legislative intent of absolute liability. The section is legislation of a regulatory, police and public welfare nature which involves the violation of laws pertaining to motor vehicles and safety.

Subsection (b) of section 6-303 of the Motor Vehicles Act (Ill Rev Stats 1967, c 95%, par 6-303 (b)), provides:

“The Secretary of State upon receiving a report of the conviction of any person under this Section upon a charge of driving a vehicle while the license or permit or privilege of such person was suspended, except as may be allowed by a restricted driving permit issued under this Act, or upon receiving a report of the conviction of any person of any violation indicating said person was operating a motor vehicle during the time when said person’s license, permit or privilege was suspended, shall extend the period of such suspension for an additional like period, and if the period of suspension has then expired, the Secretary of State shall be authorized to suspend said person’s license or permit or privilege for the same period of time as the suspension which had expired, and if the conviction was upon a charge of driving while a license or permit or privilege was revoked, except as may be allowed by a restricted driving permit issued under this Act, or if the conviction was upon a charge which indicated that a vehicle was operated during the time when the license, permit or privilege of said person was revoked, the Secretary of State shall not issue a license for an additional period of 1 year from the date of conviction if such conviction was obtained after the date such person would have been entitled to apply for a new license.”

This subsection clearly manifests a legislative intent to further restrict the erring driver and to protect the safety of the public by the additional restrictions therein imposed. Such provision manifests a legislative purpose to impose absolute liability for the conduct described in subsection 6-303 (a).

In People v. Jensen, 24 Ill App2d 302, 164 NE2d 228 (1960), the court pertinently construed this section in these words:

“The offense under the statute, so far as material, is driving a motor vehicle on a highway at a time when the operator’s license is revoked—the particular distance the defendant may have so driven under such circumstances is immaterial so far as commission of the offense is concerned. The particular intent, knowledge, moral turpitude, if any, or purity of motive, if any, of the defendant are also immaterial on the question of guilt under this particular statute: Cf. People v. Player (1941), 377 Ill 417. Price v. People (1884) 109 Ill 109, referred to by the defendant, did not involve the present statute or the present offense.”

The Criminal Code was enacted after the Jensen opinion was filed. Generally, a statute should not be construed to effect a change in settled law of the state unless its terms clearly require such construction. People v. Bernette, 30 Ill2d 359, 374, 197 NE2d 436 (1964); Sternberg Dredging Co. v. Estate of Sternberg, 10 Ill2d 328, 333, 334, 140 NE2d 125 (1957).

The terms of section 6-303 (a) do not indicate the implication of a mental state requirement. In fact, we believe that the terms of section 6-303 (b) negate such requirement.

We conclude that the violation of section 6-303 of the Motor Vehicle Act is an offense which involves absolute liability and that the mental state of the offender is not an essential element of the offense of driving while license is revoked. Accordingly, we adhere to the opinion as originally adopted, and the petition for rehearing is denied.

ABEAHAMSON, P. J. and SEIDENFELD, J., concur.