author: MR. PRESIDING JUSTICE McCORMICK

text:
    Robert Boatman, Plaintiff-Appellant, v. Alvin Jordan, Defendant-Appellee.
    Gen. No. 50,635.
    First District, Fourth Division.
    October 23, 1968.

      Horwitz & Anesi, Nat P. Ozmon, and Richard A. Lewin, of Chicago (Sidney Z. Karasik, of counsel), for appellant.
    Heineke, Conklin & Schrader, of Chicago (William H. Schrader and Edwin A. Strugala, of counsel), for appellee.
   MR. PRESIDING JUSTICE McCORMICK

delivered the opinion of the court.

Robert Boatman, plaintiff, filed a suit to recover damages for personal injuries allegedly sustained in the fall of an elevator in a commercial building. On September 13, 1962, plaintiff filed a second amended complaint, the one which is germane to the instant appeal. In that complaint the plaintiff joined as defendants Alvin Jordan, the owner of the building; one Elmer C. Warner, the previous owner of the building; Sherwin-Williams Co., and Lowe Brothers Co., who were either tenants or subtenants on or prior to January 7, 1961, the date of the accident; and two elevator maintenance companies. The complaint alleged that on or prior to that date, each, or some of the defendants, were guilty of negligent acts or negligent omissions which proximately caused physical injury to the plaintiff. All of the defendants filed answers. Jordan filed a third-party complaint against Warner, the elevator maintenance companies, and Forest Paint Company.

On November 27, 1964, defendant Jordan filed a motion with supporting affidavits and exhibits, seeking summary judgment against Boatman on the sole ground that plaintiff’s claim was barred by the Workmen’s Compensation Act, as set forth in detail later in this opinion. Boatman filed a reply to the motion and produced depositions on oral examination of Jordan and codefendant Warner, the previous owner. The trial court sustained Jordan’s motion for summary judgment in his favor, and in that order, in accordance with section 50 (2) found that there was no just reason for delay in enforcement or appeal. From that order of the trial court this appeal is taken.

The plaintiff, Robert Boatman, was employed as a laborer by Forest Paint Co., in Forest Park, Illinois. He had been working in that capacity for six months prior to January 7, 1961. On that day, at about 9:00 a. m., the plaintiff was working with the foreman, Daniel Shaw, at 7236-7250 Franklin Street, Franklin Park, Illinois. They were engaged in moving the place of business of Forest Paint Company. At the request and direction of defendant Jordan, they were moving and storing drums of resin. With Jordan present, they rolled some drums onto the freight elevator of the building; took the drums to the fourth floor, removed them from the elevator, and stored them in a place designated by Jordan. Jordan then left and told Boatman and Shaw to take the other load up to the fourth floor.

After rolling six or eight drums onto the elevator Shaw and Boatman went to the fourth floor. The elevator was operated by pulling on a rope to start it and pulling another rope to stop it. After stopping at the fourth floor they remembered that they had to pick up some boards on the third floor. Shaw pulled the rope and the elevator started downward; when they got to the third floor he pulled the rope to stop. The elevator seemed to stop for an instant, then fell to the bottom of the shaft. The accident was caused by the breaking of rusty cables of the elevator. Boatman suffered physical injuries and received workmen’s compensation from Forest Paint Co., his employer.

The building in which the accident occurred had been sold by Warner and his wife; title to the property was taken in trust by Oak Park National Bank for the sole benefit of Alvin Jordan, who was president, director and principal stockholder of Forest Paint Company. In his deposition submitted on the hearing on the motion for summary judgment, Jordan stated that the building was purchased by him in his own name as the sole beneficial owner under the trust, and that the price was paid from his own bank account. The deed in trust was dated November 4, 1960, and the sale was consummated November 15,1960.

In the early part of October, Jordan and Warner viewed the premises. In his deposition Jordan stated that Warner told him he had just had the elevator inspected; that up to November 1960 the elevator had been inspected and serviced by Trimon Elevator Company.

On December 22, 1960, Jordan, by written lease, demised the entire building to Forest Paint Co., “to be occupied solely for the purpose of a paint factory, warehouse, office and a paint store,” the lease to become effective January 1, 1961, and to terminate on October 31, 1962. After the Christmas holidays in 1960, Forest Paint Co. started to move in. The lease contained a clause providing that the lessee would keep said premises, including all appurtenances, in good repair during the term of the lease, at lessee’s expense.

In his amended answer to the amended complaint, Jordan, among other affirmative defenses, pleaded the bar of section 5(a) of the Workmen’s Compensation Act (Ill Rev Stats 1961, c 48, § 138.5(a)), which provides:

“No common law or statutory right to recover damages from the employer or his employees for injury or death sustained by any employee while engaged in the line of his duty as such employee, other than the compensation herein provided, shall be available to any employee who is covered by the provisions of this Act, to any one wholly or partially dependent upon him, the legal representatives of his estate, or any one otherwise entitled to recover damages for such injury.”

At the time of the occurrence Boatman was an employee of a corporation occupying the building in question as a tenant under a formal lease from Jordan, the defendant, who was also president and principal stockholder of the corporate employer-tenant. In this court the only issue briefed by either party is whether Boatman’s action against Jordan is barred by section 5 (a) of the Workmen’s Compensation Act, since Jordan was either the employer of Boatman, or a fellow-employee, or both. Jordan contends for the affirmative of that proposition.

Boatman, on the other hand, contends here that Jordan was not sued in his capacity as president of Boatman’s employer, Forest Paint Co., but solely in his individual capacity as a landlord with certain duties to persons using the elevator in the building owned by him. In any case, a president of a corporation under Illinois law is not ipso facto a coemployee; in the instant case, the owner-landlord an individual, and the tenant-employer a corporation, were separate and distinct entities, and section 5(a) of the Workmen’s Compensation Act is not applicable.

Boatman argues that Jordan has admitted that the building was purchased with his own funds and that he personally received a rental of $900 per month from Forest Paint Co., the corporate-tenant. In the brief filed by Jordan in this court he stated:

“Plaintiff in asking this Court to overrule the motion judge essentially contends that defendant as president and principal stockholder of Forest Paint was not an employe of that company within the meaning of Section 5(a) of the Workmen’s Compensation Act; that in any event plaintiff has brought this action against defendant as an individual, and as owner of the building, and not as president or agent of the company. Plaintiff also urges this Court not to pierce the 'corporate veil/ but to treat defendant as one entity and Forest Paint as another. On these premises, plaintiff contends further that since defendant in the usual scheme of things purportedly would have an independent liability as owner of the building, supposing plaintiff able to prove his case under the issues of negligence alleged in his amended complaint, triable issues of fact on the question of defendant’s liability were for the jury and improperly were taken from the jury by the motion judge in ruling favorably on defendant’s motion for summary judgment.”

It is the rule in Illinois that an individual making a lease with an entity purporting to be a corporation is estopped to deny the separate corporate existence of the lessee. West Side Auction House Co. v. Connecticut Mut. Life Ins. Co., 186 Ill 156, 160, 57 NE 839. It has also been held that the doctrine of corporate entity is one of substance and validity and should be ignored with caution. Superior Coal Co. v. Department of Finance, 377 Ill 282, 36 NE2d 354.

In Earp v. Schmitz, 334 Ill App 382, 388, 79 NE2d 637, the court said:

"There is no controversy about the rules that a corporation is a distinct entity; that a sole stockholder is not the owner of corporate property; and that generally one who has created a corporate entity will not be permitted to disregard it to gain an advantage, which under it would be lost.”

In Superior Coal Co. v. Department of Finance, supra, the court discussed the legal fiction of the corporate entity and said that as a general rule a corporation and its stockholders are deemed separate entities. The court quoted from Commerce Trust Co. v. Woodbury, 77 F2d 478, where it was stated, at page 487:

. . the corporation will be regarded as a legal entity, as a general rule, and the courts will ignore the fiction of corporate entity only with caution, and when the circumstances justify it, and when it is used as a subterfuge to defeat public convenience, justify wrong, or perpetrate a fraud.”

In Dregne v. Five Cent Cab Co., 381 Ill 594, 46 NE2d 386, the court lays down the rule that a corporation is an entity separate and distinct from its shareholders, and the fact that the shareholders of two corporations are identical does not mean that the two corporations are to be considered as a single entity.

It has been held that a director is not liable for a tort committed by a corporation unless he actively participated in the wrongdoing, and in Lowell Hoit & Co. v. Detig, 320 Ill App 179, 50 NE2d 602, the court said, at 183: “The mere fact that a person is a director in a corporation does not necessarily render him liable for the torts of the corporation or its agents. In other words, directors are not to be held liable for the negligence of the corporation merely because of their official relation to it.” (Citing 19 CJS 271, and Kulesza v. Chicago Daily News, Inc., 311 Ill App 117, 35 NE2d 517.)

In this court Jordan argues, citing Larson, Workmen’s Compensation, § 54.10, page 786, who criticizes the Illinois courts’ construction of the term “employee,” according to the common law concepts, and he further argues that under the construction of the word “employee” in other jurisdictions, the word should be given a broad meaning. In support of his contention Jordan cites Chmelik v. Vana, 31 Ill2d 272, 201 NE2d 434, which is not at all in point.

Angerstein, Illinois Workmen’s Compensation (1952), also thinks the common-law rule should not be employed in workmen’s compensation cases. However, he flatly states in section 141, that it is generally held that officers of a corporation and those acting in an executive or managerial capacity, are not per se employees within the provisions of the Compensation Act and are not entitled to compensation in the case of accidental injury. He states that the essential reason is that one person cannot be both employer and employee at the same time.

In a late decision handed down by the Illinois Supreme Court, B. W. Sales Co. v. Industrial Commission, 35 Ill2d 418, 220 NE2d 405, the court says that the sole issue presented is whether the claimant, the sole stockholder of B. W. Sales Company, a corporation of which he is president, treasurer and director, is an employee of that corporation within the meaning of the Workmen’s Compensation Act. The court points out that this is a case of first impression in Illinois. The question was as to whether the claimant was entitled to receive compensation from the corporation for an injury allegedly sustained in the course of his duties as an employee. The plaintiff was injured in an automobile accident when he was returning from Bloomington, Illinois, to Dundee, where he lived and where the corporation maintained its offices as manufacturers’ representative selling industrial brushes. Claimant had driven from Dundee to Bloomington to sell brushes to another company and was returning when the accident occurred. The court cites and quotes as follows:

“Section 1 of the Illinois Workmen’s Compensation Act (Ill Rev Stats 1965, chap 48, par 138.1 (a) 2) defines the term ‘employer’ as: ‘Every person, firm, public or private corporation, including hospitals, public service, eleemosynary, religious or charitable corporations or associations who have any person in service or under any contract for hire, express or implied, oral or written, . . . .’ Paragraph (b) of said section (Ill Rev Stats 1965, chap 48, par 138.1 (b)2) defines an ‘employee’ as: ‘Every person in the service of another under any contract of hire, express or implied, oral or written, ....’”

The court cites Stevens v. Industrial Commission, 346 Ill 495, 179 NE 102, as follows:

“[t]he court adopted the so-called dual capacity doctrine followed by a majority of the States. Under such doctrine an officer, director or stockholder will not be denied compensation merely because he is an officer, director or stockholder, if, as a matter of fact, at the time of his injury he is engaged in manual labor or the ordinary duties of a workman and receives pay in the capacity of an employee, or if he was engaged in employment palpably separate and distinct from the official duties falling upon him as an officer of the corporation. 99 CJS, Workmen’s Compensation, sec 82, pp 302-304.
“The court concluded in Stevens that a secretary and treasurer of a corporation in which he owned 48% of the stock was acting as an employee in going to a debtor’s place of business to collect an account and was entitled to compensation for an injury occurring on such a trip.”

In the B. W. Sales Co. case the court also cites Gross-man v. Industrial Commission, 376 Ill 198, 33 NE2d 444, and quotes:

“ ‘It is clear that in order to entitle an officer of a corporation to recover compensation under the Workmen’s Compensation Act he must prove that his injury was received while engaged in employment as an employee of the company and not in the performance of the duties appertaining to his official capacity.’ ”

In that case the court takes the view that at the time of his injury the claimant was performing in a capacity as a traveling salesman and not as an officer of the company; therefore, his injuries were compensable unless the corporate entity be disregarded.

In Ryan v. State Auto Parts Corp., 255 Ill App 422, the plaintiff, while on the premises of the defendant, was injured by falling down an elevator shaft negligently left open and unguarded. He brought suit against the defendant and it was argued that he could not bring the suit since at the time he was in the employ of the Motor Transportation Company which, with the defendant, was under the Illinois Workmen’s Compensation Act. The plaintiff was the executive manager of the company; he had learned that defendant had some secondhand trucks for sale and he went to examine them with a view of buying them for the company. While on the defendant’s premises on this errand the accident occurred. The court held that at the time of the accident the plaintiff was not acting as an employee of the transportation company and was entitled to prosecute his claim by an action at common law. The court said, at page 424: “One who is an officer of a corporation, while acting as such, represents the corporation and his acts are the acts of the corporation. He makes the contracts of employment of the corporation with the employees, and it would be an obvious misnomer to call him an employee while so acting for the corporation.”

It is apparent that without some showing of an actual employment the president of a one-man or principally-owned corporation cannot be considered its employee merely because of that fact. While the cases cited deal with the question of the circumstances under which an officer of a corporation may collect compensation, nevertheless, the rule therein laid down is controlling.

In our opinion, under the cases and text writers cited, at the time of the accident Jordan could not have been considered a fellow-employee of Boatman, and consequently a common-law suit could be brought by Boatman against him, and whether or not the Illinois cases, as the defendant argues, may be subject to just criticism, is immaterial, as they are binding upon us.

The judgment of the Circuit Court is reversed and the cause remanded for further proceedings not inconsistent with this opinion.

Reversed and remanded.

DRUCKER and ENGLISH, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    Village of Glencoe, a Municipal Corporation, Plaintiff-Appellant, v. Robert D. Jackson, Margaret Anne Jackson, First Federal Savings and Loan Association of Wilmette, as Mortgagee Under Mortgage Dated December 23, 1960, and Recorded January 4, 1961, as Document No. 18053336, Jocelyn Spitz Nebenzahl and Kenneth Nebenzahl, Commodity Conversion Corporation, a Corporation, Richard L. Nelson and Mary Jane Nelson, and Bell Savings and Loan Association, as Mortgagee Under Mortgage Dated March 14, 1951, and Recorded March 20, 1951, as Document No. 15034431, Unknown Owners and All Whom It May Concern, Defendants-Appellees. In the Matter of a Special Assessment To Pay the Cost of Constructing a Sanitary Relief Sewer in Easements, Maple Hill Road and Sheridan Road in Said Village.
    Gen. No. 50,788.
    First District, Fourth Division.
    October 30, 1968.
    Rehearing denied February 4, 1969.

      E. Douglas Schwantes and Kenneth O. Stonesifer, of Chicago (Ronald M. Glink, of counsel), for appellant.
    Jacob Shamberg, Ralph G. Scheu, and Latchford & Latchford, of Chicago (George P. Latchford, Jr., of counsel), for appellees.
   MR. PRESIDING JUSTICE McCORMICK

delivered the opinion of the court.

This is an appeal from an order entered by the Circuit Court on April 5, 1965, which order sustained the objections filed by certain individuals and the Lake Shore Country Club, and dismissed the special assessment proceeding brought by the Village of Glencoe (hereafter called the Village); and from an order entered by the Circuit Court on June 2, 1965, which denied the Village’s motion to vacate the order of April 5.

It appears from the record that on March 14, 1963, the President and Board of Trustees of the Village, pursuant to the recommendations of the Board of Local Improvements, and after public notice and hearing, passed an ordinance providing for a local improvement in the Village for a sanitary relief sewer in easements, Maple Hill Road and Sheridan Road. The improvement is to be located in the northeast section of the Village. The details of the construction provide for the installation of a 15 and 12-inch sewer pipe that runs from Franklin Road down Sheridan Road and across to the 24-inch Metropolitan Sanitary District interceptor sewer just south of Maple Hill Road. The estimated cost of this improvement is $285,180.85.

For the purposes of this improvement the Glencoe ordinance created a sewer district, Special Assessment District #281, encompassing the area bounded on the north by the Cook County-Lake County Line Road, the northern limits of the Village; on the east by Lake Michigan; on the west by the Northwestern Railroad tracks and embankment, with the exception of the Terrace Court area west of these tracks; and on the south by east-west lines which run into the Metropolitan Sanitary District interceptor sewer, just south of Maple Hill Road.

The alleged purpose of this improvement is to relieve the present 8-inch sanitary sewer system in that area. This system now comprises an 8-inch sewer in Sheridan Road which extends from Franklin to Maple Hill Drive, along Maple Hill Drive to an easement, and through the easements to a connection with a 24-inch interceptor of the Metropolitan Sanitary District. There are a number of branches to the present system; one extends north along Sheridan Road and as far north as the Lake Shore Country Club; another extends in a westerly direction along Franklin Street and across the railroad tracks, serving the Terrace Court area. There are also a number of lateral sewers connecting these principal collectors.

The 8-inch sanitary sewer was first installed in 1915, pursuant to a special assessment known as Special Assessment #217, which consists of approximately 200 acres and is about one-third smaller than Special Assessment District #281. The boundaries of District #217 were just north of Timber Lane on the north; on the west, the Northwestern Railroad right-of-way; on the south, the ravine south of Crescent Street; and on the east, Lake Michigan. This area comprised approximately 200 acres and was and is occupied by single family residences. Included in District #281, but excluded from the original District #217, is the Terrace Court area west of the Northwestern Railroad tracks, and the Lake Shore Country Club property located north of the old Special Assessment District #217. The southernmost portion of the latter district south of the Metropolitan interceptor is not included in Special Assessment District #281.

The Village began considering the adequacy of the present 8-inch sewer in 1942. In that year the Village Board received a report from the engineering firm of Greeley & Hansen, indicating that the 8-inch sewer system was inadequate. In 1950 that firm was employed by the Village to bring up to date the estimates made in the report of 1942 and to advise the Village as to the potential benefits of the relief sewer being constructed by the Metropolitan Sanitary District to relieve the North Shore intercepting sewer system. This report in 1950 reiterated the need for certain improvements to the sanitary sewer system, including reinforcement of the sanitary sewer in Sheridan Road. The firm of Greeley & Hansen was again employed in 1958 to bring up to date the estimates made in 1942 and 1950, and they again recommended certain improvements as to the sanitary sewer system, including relief for Sheridan Road sewer.

Sometime in 1958 the Metropolitan Sanitary District objected to the Lake Shore Country Club’s septic sanitary system which was dumping treated sewage into Lake Michigan. The minutes of the Village Board for September 3, 1958, introduced in evidence by the objectors at the first hearing, show that the controversy led the Board to accept the Lake Shore Country Club’s proposal to construct at its own expense a lift station and an 8-inch sanitary sewer approximately 870 feet in length, to pump sewage from the Country Club to connect with the present 8-inch sanitary sewer in Sheridan Road. This sewer was subsequently built and connected to the 8-inch sewer system.

In January 1959, Greeley & Hansen were authorized to prepare plans and specifications for the construction of a relief sewer in Sheridan Road. These were prepared and a permit issued by the Metropolitan Sanitary District in 1959 for the construction of this sewer. Public hearings were held in July of 1959 and because of a number of objections at that time the Village Board took the matter under advisement, and in January 1960 decided to defer the construction of the sewer until they could make some further inspection of downspouts. These inspections were made in 1959 and continued through the summers, being substantially complete by the summer of 1961. The special assessment proceedings were reinstated in 1962, and a public hearing was held in October 1962, following which there were a number of meetings between the Village and the opponents of the project.

After passing the ordinance, on July 2, 1963, the Village filed its petition in the County Court of Cook County under the Local Improvement Act pursuant to a petition for a special assessment to pay the cost of constructing a sanitary relief sewer in easements, Maple Hill Road and Sheridan Road in the northeast portion of the Village. On July 3, 1963, the court entered an order appointing two disinterested commissioners and the President of the Board of Local Improvements of the Village to investigate and perform the other duties to be performed as commissioners. They filed their assessment roll and report on August 13, 1964; a return day was set, and the required notices were published and mailed.

On September 21, 1964, an order of default and confirmation, except as to objections filed, was entered. On October 16, 1964, on plaintiff’s motion, a rule was entered on the objectors to file specific legal objections and to set such objections for hearing. Specific objections were filed by the appellees, Lake Shore Country Club and certain other individuals. On April 5, 1965, the court heard the evidence presented by the objectors. Various residents of the old District #217, all of whom are objectors in this action, the attorney and other representatives of the Lake Shore Country Club testified that they themselves had not experienced any backing up of their sewage from the present system, nor were they aware of any sewage problem in the area generally. Mr. Patek, a sanitary engineer, testified on behalf of the objectors that according to the current minimum design standards required by the State of Illinois, the present sewer system would be adequate to service the existing sanitary flows and storm infiltration in District #217, but that it would not be adequate to allow for a full development of the new special assessment area #281.

On the basis of this evidence the court sustained all of the defendants’ objections and dismissed the special assessment proceedings. The court stated that the plaintiff had 30 days to come in on a motion to vacate, and that plaintiff could come in with any testimony it wanted at that time. On May 4, 1965, plaintiff filed a motion to vacate the order of April 5, sustaining objections and dismissing the petition, and to grant a new hearing, or, in the alternative, to overrule legal objections. In support of its motion the plaintiff offered into evidence the testimony of several residents of District #217 that after periods of heavy rainfall the sanitary sewers had backed up and an obnoxious odor discharged from the manhole covers in the streets. The then chief sanitarian of the Village and the present foreman of the Water Department testified that on occasion they had observed sewage flowing from the manhole covers onto the streets.

Matthew D. Riddle, a sanitary engineer, testified in behalf of the plaintiff that he was familiar with the project known as the sanitary relief sewer on Sheridan Road; that his firm prepared the plans which formed the basis of the ordinance enacted by the Village of Glencoe; that prior to the preparation of these plans in 1959 they reviewed the calculations of the capacity of the sewer and the required capacity of the sewer systems and it was determined that the size of the sewer indicated on those plans was necessary to provide adequate service to the area included within the proposed special assessment district. He testified that he was familiar with the Special Assessment District known as #281 and with the old District #217. In his opinion, the present sanitary sewage system is not adequate to serve the district known as #281, nor #217. He said he based his opinion on calculations he made consisting of two parts; first considering that part of the flow which can be classified as domestic sewage which originates in the household; and second, an allowance for storm infiltration. The calculations used to determine the adequacy of the sewer system were based on his own experience of the required capacity of sewers in the North Shore area. He testified that these requirements are greater than the minimum standards established by the State of Illinois in the review of plans for sewers that are built now; that he made no calculations using the State standards because they are not applicable to this case, and that those standards were established by the State merely as mínimums in the review of plans submitted to them, and any design submitted to them that was less than these values would not be approved. Mr. Riddle further stated that in cases of old sewer systems where there is considerable infiltration and where the pipe had deteriorated it is necessary to use much higher figures than these mínimums, and that the present system is not as tight as a new one might be.

Five of the defendants then testified that Mr. Riddle’s testimony was in direct conflict with a statement he had made in June 1959, at a meeting called to explain the proposed assessment; that at that meeting Mr. Riddle stated the present sanitary sewer was adequate for District #217 providing no one out of the district was allowed to make a connection to it. Mr. Riddle was recalled as a witness, but did not remember having made such a statement. On June 2, after hearing the evidence, the court denied the motion to vacate the order of April 5,1965.

In this appeal the plaintiff urges that no evidence was introduced showing that the Glencoe Village Board abused its discretion in passing the Sanitary Sewer Ordinance and that the court clearly erred in dismissing the special assessment proceeding; that the order sustaining the objections and dismissing the special assessment proceeding was based on an erroneous view of the law and was contrary to the manifest weight of the evidence presented at both the first and second hearing; and that the court should have granted plaintiff’s motion to vacate such order.

Chapter 24, Cities and Villages, section 11-109-1 of the 1963 Illinois Revised Statutes states: “The corporate authorities of each municipality may construct, repair, and regulate the use of culverts, drains, sewers, and cesspools.” (Emphasis supplied.)

The case of Village of Millstadt v. Bereitschaft, 344 Ill 550, 176 NE 746, which is similar to the case before us, involved such an exercise of discretion. There, as here, legal objections were raised in a special assessment proceeding questioning the necessity of certain sanitary improvements. The objections were sustained and the proceeding dismissed. On appeal the court held at page 554.

“The question of the necessity of a local improvement, its character, where, when and how it shall be constructed and paid for are legislative in their nature and the legislature has committed them to the corporate authorities of cities, villages and incorporated towns for determination. It is only where the evidence is clew and satisfactory that the action of the municipal authorities was taken without reasonable grounds and is oppressive that the judiciary will interfere to deelwe an ordinance for a local improvement unreasonable.” (Emphasis supplied.)

Clearly then, when municipal authorities are vested with the discretionary power to determine the necessity of local improvements and when they exercise their discretion reasonably and in good faith, their judgment will be permitted to stand and will not be judicially overturned. A court will not interfere with the proper exercise of the municipality’s legislative discretion and substitute its own judgment as to the necessity of the proposed improvement for that of the corporate authorities. However, a court will not hesitate to invalidate an ordinance where it appears that it is unreasonable, arbitrary and oppressive. People ex rel. Lyddy v. City of Rock Island, 45 Ill App2d 76, 194 NE2d 647; Baltis v. Village of Westchester, 3 Ill2d 388, 121 NE2d 495. It was incumbent upon the defendants to clearly establish that the municipal authorities acted so unreasonably as to overcome the presumption that the ordinance is valid. Village of Millstadt v. Bereitschaft, supra; City of Carbondale v. Reith, 316 Ill 538, 147 NE 422.

In the instant case, the trial judge, after hearing all of the evidence presented, determined — and we believe correctly — that the present sewage system for the proposed district was quite adequate; that the people living there were satisfied with conditions as they presently exist; and that the proposed improvement was unnecessary. The trial judge who sees the witnesses and hears the evidence is in a much superior position to find the truth than is a reviewing court which has before it only the printed page. The weight to be given the testimony and the credibility of the witnesses are matters which are within the trial judge’s province. .Consequently, where a trial judge has heard witnesses give oral testimony his findings will not be disturbed unless they are plainly erroneous and contrary to the manifest weight of the evidence. People ex rel. Penrod v. Chicago & N. W. Ry. Co., 17 Ill2d 307, 161 NE2d 126; Boyd v. Boyd, 58 Ill App2d 1, 207 NE2d 350; Dailey v. Meredith, 56 Ill App2d 230, 205 NE2d 640; Marshall Field & Co. v. J. B. Noelle Co., 81 Ill App2d 409, 226 NE2d 454; Jorn v. Tallett, 341 Ill App 240, 93 NE2d 82. After reviewing the entire record this court finds not only that the finding of the trial court is not manifestly contrary to the weight of the evidence, but rather is overwhelmingly supported by a preponderance of that evidence.

Defendants presented evidence that the present sewage system complied with the current minimum design standards required by the State of Illinois, and that approximately 240 of the residents in the area, apparently satisfied with the adequacy of the current system, had objected to the special assessment. In rebuttal, and in support of their motion to vacate the order of April 5, 1965, the only evidence of the actual inadequacy of the present system plaintiff was able to produce was the testimony of two residents of the proposed district and two water department officials that some occasional backing up of sewage had occurred. This testimony, however, must be considered in light of the fact that the condition was caused by heavy rainfall and that this one particular area is considerably lower than the main sewer into which it empties. Qualified engineers also testified on behalf of the defendants that the system was adequate. Under those circumstances it cannot be said that the finding of the trial court was against the manifest weight of the evidence. Clearly then, the municipal authorities of the Village abused their legislative discretion in passing and attempting to enforce an ordinance creating an unnecessary improvement through this proceeding.

Plaintiff contends that chapter 24, sections 9-2-57 and 9-2-58 of Illinois Revised Statutes (1963) are controlling here and that the question of benefits was not properly an issue at a hearing on legal objections, but rather is to be resolved at a separate hearing. While some of the evidence offered at the trial may seem somewhat similar to evidence relating to the question of benefits, it clearly was not. The question of whether the particular property of an objector will or will not be peculiarly benefited by the improvement is quite different and distinct from the issue of whether the improvement itself is necessary. The objection that an improvement is unnecessary is one which may properly be raised at trial as it was here under section 9-2-57. City of Chicago v. Van Schaack Bros. Chemical Works, 330 Ill 264, 161 NE 486.

At the present time there is simply no need for installing a new sewage system; the present one is quite adequate. In the past, legal objections have been raised questioning the necessity of local improvements, and the ordinances creating them have been invalidated on that basis. See City of Carbondale v. Reith, supra. This court will not hesitate to hold that an ordinance is invalid where it clearly appears from the evidence that the improvement for which it provides is unnecessary. McFarlane v. City of Chicago, 185 Ill 242, 57 NE 12; City of Chicago v. Brown, 205 Ill 568, 65 NE 65; South Park Com’rs v. Pearce, 248 Ill 578, 94 NE 33. It is true that the necessity of local improvements is commonly committed to the judgment of the municipal authorities, but only when they have exercised their judgment reasonably. Here they have not.

The judgment of the Circuit Court is affirmed.

Affirmed.

DRUCKER and ENGLISH, JJ., concur.


author: ME. JUSTICE MURPHY

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Jimmy D. Hill, Defendant-Appellant.
    Gen. No. 51,801.
    First District, First Division.
    November 4, 1968.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Professor James R. Thompson, Northwestern University School of Law, 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, Howard Levine and Sheldon M. Schapiro, Assistant State’s Attorneys, of counsel), for appellee.
   ME. JUSTICE MURPHY

delivered the opinion of the court.

This is a rape case. In a bench trial defendant was found guilty and sentenced to five to fifteen years in the penitentiary. On appeal, defendant contends that he was denied his constitutional right to a jury trial because his waiver thereof was not understandingly made. He also contends that he was not proved guilty beyond a reasonable doubt.

The complaining witness testified that on October 29, 1965, she was employed at the Presbyterian-St. Luke’s Hospital and punched out at 11:15 p. m. She took the “El” to 51st Street and started walking to her home. While walking south on Michigan Avenue a man grabbed her around the neck and said, “Walk, Bitch.” She was forced to accompany the man down 52nd Street into an alley between two buildings and down into a gangway or basement. She testified she was frightened and when she got into the gangway she could hear people talking. She tried to make some kind of sound, and he threatened to kill her. He had his arm around her neck and his hand over her mouth. He forced her to take off all of her clothing and committed an act of intercourse. Then, at his instruction, she got her clothing and, with his arm around her neck and his hand over her mouth, they started back the way they had come. Two men appeared with a flashlight, and the man with her ran away. One of the men asked her where he had gone, and she pointed into the alley. She further testified, “The next time I saw the defendant was when the officers who captured him brought him back to the car. . . . One of the officers asked if this was the fellow and I said it was. I told the officers what he had done and that I didn’t know him or anything about him.”

On cross-examination, she said there was a high hanging light in the courtyard, about two feet from the basement, and she could see defendant’s face. It was a few minutes after the officers took her to the squad car that the defendant was brought to her, and she identified him. She went to the police station, where she gave a statement and identified defendant again. The next time she saw him was in court.

Police Officer Richard Jarmon testified that he and Officer Johnson were in a police car, in uniform, when they received a call to go to 5231 South Michigan. Upon arriving they saw the complaining witness standing in the rear yard. “She seemed hysterical. She was holding some clothing in her hand. I asked her the direction in which the offender had fled and for his general description. Then I went into the alley and met Officer G. Hawkins, who had caught the defendant.” The officers took the defendant over to the victim in the squad car, and she identified him as the man who had intercourse with her. At the station, he asked the defendant if he had intercourse with the complaining witness, and he said that he had.

Police Officer G. L. Hawkins testified that he answered a radio call of a rape in progress at 5231 Michigan. “Coming to this address, I stopped on the corner and noticed two other officers who were yelling at me and pointing to the yard. They were referring to the rapist. I saw him proceeding eastbound toward a courtway. I proceeded down 52nd Street, and when I reached the alley the defendant came out of the alley heading north. As I approached him two officers behind him were commanding him to stop. I was in uniform, identified myself and also told him to stop. I chased him east on 52nd Street, across Indiana to the rear of approximately 5200 Indiana, where he jumped behind cover. I took him back to the scene, where the lady identified him as the man who had molested her. At this time his clothes were all disarranged, his pants were unzipped.” On cross-examination, he testified that the defendant said he was not doing anything at the scene of the offense.

Officer James Hogan questioned defendant at the police station. “I asked him whether he had ever seen the victim . . . who was sitting right there, and he said he had. He said that he was walking behind her on Michigan Avenue when he blacked out. He couldn’t remember any more. I asked him what he meant by blacking out and he answered that he had been drinking and couldn’t remember anything beyond that.”

The defendant testified that he lived at 224 East 53rd Street, and prior to his arrest he was at home with his family. “I left home at about a quarter to twelve. I wanted to go to 51st and Indiana to get some barbecue. On the way there, I stopped in a gangway to urinate when a bunch of policemen swept by me. They took me to the police station. Then they brought in a woman and asked if I was the one who had committed a crime on her and she said that I was. They told me I was charged with rape. I told them I did not do it. The first time I saw this woman was in the police station.” He denied the testimony of the complaining witness and the police officers.

In rebuttal, Police Officer William Strocchia testified that he questioned the defendant during the morning hours of October 30, 1965, in the squad room of the 2nd District. He asked defendant if he knew the victim, and he said that he had seen her on occasion. “With respect to this offense, he said that he could only remember seeing her walking down the street and that he crossed the street diagonally behind her. Then he went blank. He had been drinking and that was all he could remember.”

Considered first is defendant’s contention that his right to a trial by jury was not understandingly waived by him in open court (Ill Rev Stats, c 38, §§ 115-1 and 103-6). The record indicates that when the case was called for trial, counsel for the defendant informed the court that the defense was waiving a jury. The trial judge twice asked the defendant if he knew what a jury trial was and defendant responded in the negative. The judge then passed the case temporarily, instructing defense counsel to inform defendant of the nature of a jury trial. A short time later the case was called, and defense counsel stated, “I have conferred with my client and for the second time, maybe the third time, explained to him what the jury was and he has again expressed his desire to waive the jury and I’ve asked him to sign such a waiver and he has done so.” The Court: “By signing this you have waived a jury trial, Mr. Hill.” Defendant: “Yes.”

Defendant contends that People v. Turner, 80 Ill App2d 146, 225 NE2d 65 (1967), compels a reversal here. We do not agree. There the court reversed and remanded because the defendant did not understand the meaning of a jury waiver. The defendant was an illiterate and made an “X” to signify his assent to the jury waiver. In the instant case during the hearing of a motion for a new trial, defendant’s counsel in urging this point remarked, “I didn’t understand why he should not understand what a jury was. I had talked to him several times about this, and he is a young man seemingly intelligent enough to understand what a jury was, and he didn’t seem to understand what the nature of a jury was.” In reply, the court observed, “. . . The only conclusion I could draw from his testimony was he knew exactly what he was testifying about and testified cautiously and astutely.” We believe the record supports the remarks of the trial judge. Defendant is not entitled to complain of an alleged error which was invited by his behavior and that of his attorney. People v. King, 30 Ill App2d 264, 268, 174 NE2d 213 (1961).

The pronouncements made in People v. Richardson, 32 Ill2d 497, 207 NE2d 453 (1965), apply here. There it is said (p 499):

“Whether a jury waiver has been knowingly and understandingly made depends upon the facts and circumstances of each case, and there can be no precise formula for determining whether a waiver is understandingly made. . . . Merely because the court did not at length discuss the consequences of the jury waiver does not necessarily require a holding that the waiver was not understandingly made. . . . While the trial court might well have dwelt at more length on this matter in complying with its duty to insure that the jury waiver was expressly and understandingly made . . . , we believe that this record indicates that defendant understandingly waived his right to trial by jury.”

Defendant next contends that the State failed to prove him guilty beyond all reasonable doubt. Defendant asserts that where a rape conviction rests upon the testimony of the complaining witness, and the accused denies the charge, her testimony must be corroborated by other facts and circumstances in the case. Defendant argues the commission of the offense was not sufficiently established because the only evidence that penetration occurred was the statement of the complaining witness. Although she testified that she went to the Provident Hospital and the County Hospital, the record contains no mention of medical findings by these institutions. Defendant further argues that it is basic to a forcible rape charge that the evidence must show the act was committed by force and against the will of the female, and if the victim has the use of her faculties and physical powers, the evidence must show resistance sufficient to indicate the act was done against her will. Defendant argues the record fails to demonstrate that any resistance the complaining witness might have offered would have necessarily been futile and overly dangerous to her. Defendant further notes that the record shows an important discrepancy between Officer Jarmon’s testimony at the preliminary hearing and at the trial, which the officer admitted.

Defendant’s authorities include People v. Faulisi, 25 Ill2d 457, 185 NE2d 211 (1962), where the Supreme Court said (p 463):

“In our opinion, however, more striking than these corroborating factors is the complete absence from the record of other corroborating evidence which might reasonably have been supposed to be available had the complaining witness been raped, for example, the failure to produce medical testimony as to the injuries to the complaining witness despite the fact that the record shows that there was a medical examination, her failure to cry for help, and the absence of any physical evidence of any struggle sufficient to overpower physically or overcome the will of the complaining witness. Significant also, in our view, is the fact that neither the prosecutrix nor her husband made any complaint to the police until after the police had been called by the defendant’s wife at the request of the defendant.”

Defendant also cites People v. Qualls, 21 Ill2d 252, 171 NE2d 612 (1961), where, in reversing, the Supreme Court noted (p 258):

“There was no evidence of any other use of force, nor of bruises, marks, abrasions or contusions upon her body. There was no testimony by any examining doctor.”

Defendant further argues that the prosecution has failed to establish beyond all reasonable doubt that the defendant was the perpetrator. Defendant states, “Where the identifying witness has never before observed the accused, the attendant circumstances, including the opportunity for definite identification, must be carefully weighed by the reviewing court, People v. Cullotta, 32 Ill2d 502, 207 NE2d 444 (1965), because the identification of one person by another who has never seen him before is an opinion or conclusion of the identifying witness.” Defendant argues that his mere proximity to the scene cannot substantiate an otherwise inadequate conviction.

In sum, the testimony of the complaining witness shows that the defendant constantly had his hands around her neck and over her mouth in such manner as to frequently cut off her air supply; that she started to scream, but defendant clamped his hand over her mouth and threatened to kill her. The resistance put up by her was sufficient to show lack of consent on her part. The police officers captured the defendant after a chase which started at the scene of the occurrence and within minutes brought him back to the complainant, who immediately identified him as the man who molested her. When defendant was captured, his clothes were in disarray and his pants were unzipped. The officers testified that when they first approached the complaining witness she was hysterical and holding some clothing in her hand. She gave the officers a description of the defendant and told them what he did and which way he fled.

Initially, we note that “medical testimony is not required to prove a rape, and this is true even when it is established that the victim went to a hospital after the crime occurred.” People v. Boney, 38 Ill2d 23, 24, 230 NE2d 167 (1967).

Also, the question of the credibility of the witnesses was for the trial court’s determination. In People v. Henson, 29 Ill2d 210, 193 NE2d 777 (1963), it is said (p 213):

“We have repeatedly held that where a case is tried without a jury the determination of the credibility of the witnesses and the weight to be given to their testimony is for the trial judge, and this court will not substitute its judgment on such matters for that of the trial judge, who saw and heard the witnesses.”

We believe the pronouncements made in People v. Mack, 25 Ill2d 416, 420, 185 NE2d 154 (1962), apply here:

“We do not, however, regard these cases as establishing an inflexible rule of law requiring in all cases that the testimony of the complaining witness in a rape case must be corroborated. Indeed, we have frequently stated that corroboration is not necessary where the testimony of the complaining witness is clear and convincing. . . . The unvarying rule of law is that in a rape case, as in any criminal case, the evidence must be sufficient to establish the guilt of the defendant beyond a reasonable doubt. Where we have reversed cases because of failure to corroborate the testimony of the complaining witness, we have done so not because of any fixed rule requiring corroboration but because, upon the state of the record in the particular case, the evidence left a reasonable doubt as to the guilt of the defendant.”

After a careful examination of this record, we conclude that the testimony of the complaining witness was clear and convincing and sufficient to support defendant’s conviction. There appears to be no reason for regarding it as unworthy of belief. Also, the testimony of the police officers as to what they saw and participated in was ample evidence to corroborate her testimony. The evidence here is not so improbable or unsatisfactory as to justify a reasonable doubt of guilt. Therefore, we find no reason to disturb the judgment of the trial court.

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

Affirmed.

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


author: PRESIDING JUSTICE DEMPSEY.

text:
    People of the State of Illinois ex rel. Food Empire, Inc., an Illinois Corporation, Petitioner-Appellee, v. City of Chicago, a Municipal Corporation, John C. Marcin, City Clerk, and O. W. Wilson, Superintendent of Police, and William T. Prendergast, City Collector, Respondents-Appellants.
    Gen. No. 52,214.
    First District, Third Division.
    November 7, 1968.
    Raymond F. Simon, Corporation Counsel, of Chicago (Marvin E. Aspen and Edmund Hatfield, Assistant Corporation Counsel, and Harry H. Pollack, Special Assistant Corporation
    Counsel, of counsel), for appellants; no brief for appellee.
   Opinion by

PRESIDING JUSTICE DEMPSEY.

Not to be published in full.


author: MR. JUSTICE MURPHY

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Donald A. Savage and Joseph B. Crable, Defendants-Appellants.
    Gen. No. 51,810.
    First District, First Division.
    November 4, 1968.
    Rehearing denied January 24, 1969.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Frederick F. Cohn and James J. Doherty, Assistant Public Defenders, of counsel), for appellants.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Michael C. Zissman, Assistant State’s Attorneys, of counsel), and Dennis J. Horan, of Chicago, for appellee.
   MR. JUSTICE MURPHY

delivered the opinion of the court.

In a joint trial, Donald A. Savage was tried by a jury and Joseph B. Crable was tried by the court. Both defendants were represented by the Public Defender, and both were found guilty of the offense of “Unlawful Use of Weapons” (Ill Rev Stats 1963, c 38, § 24-1 (a) (4)).

On appeal, defendants are represented by separate counsel. Both defendants contend that the trial court erred in refusing to grant their motions for substitution of judge. Defendant Savage additionally contends that his arrest and search were unlawful; that he was denied the right to be represented by competent counsel, and that there was insufficient proof of a prior conviction.

Three witnesses testified for the State: Warren Rife, a furniture salesman, and Chicago Police Officers Richard Crowley and John McMahon. The evidence shows that on December 6, 1965, defendants Savage and Crable, with Raymond Miller, entered a furniture store at 6151 South Halsted Street in Chicago. All three had their hands in their pockets, and Rife became apprehensive as to their intentions. He spoke to them three times, offering assistance. The men made no reply and gestured with their heads. After some time they left the store.

Rife followed the men from the store and stopped a passing police car. He spoke with Officers Crowley and McMahon and pointed out the men, who were walking south on Halsted Street. The men turned east on 62nd Place and Halsted. The officers drove their squad car to within 20 feet of the three men, got out, and Officer Crowley shouted, “Police officers, stop where you are.” Savage turned and ran, and Officer Crowley gave pursuit. Crowley, running about 50 feet behind Savage, saw him discard a revolver. The officer captured Savage, placed him under arrest, and then went back and picked up the gun in a gangway where Savage had thrown it. The chase and the arrest took approximately ten minutes.

While the pursuit of Savage was taking place, Officer McMahon stood with the other two men, one of whom was defendant Crable. The officer observed what appeared to be the end of a shotgun barrel protruding from beneath Crable’s overcoat. He ordered Crable to drop the weapon, and when Crable failed to do so, McMahon pulled the third man (Raymond Miller) in front of himself and took aim with his service revolver. Crable then dropped the shotgun. McMahon picked it up and later found a live shell in the cartridge chamber.

All three defendants were arraigned on December 20, 1965, on indictments charging each with attempted robbery (65-3490); unlawful use of weapons (65-3491); and resisting a police officer (65-3492).

On December 27, 1965, the defendants filed verified petitions for substitution of judges, naming Judge Wells and Judge Plusdrak. The petition was allowed, and the case was reassigned to Judge Herbert R. Friedlund, where it was continued from time to time to March 3, 1966.

On February 28, 1966, defendants were arraigned on two new indictments: 66-570, charging the unlawful use of weapons in the same language as the earlier indictment (65-3491), and 66-571, charging conspiracy. At that time the new indictments were assigned to Judge Friedlund, where the prior indictments, based upon the same facts and circumstances, were pending.

On March 3 the indictments charging robbery (65-3490) and the unlawful use of weapons (65-3491) were nolle pressed by the State. The indictment charging resisting a police officer (65-3492) remained. On March 3, 1966, both defendants moved the court to grant a petition for substitution of judge. In support of the motion, defendant Savage alleged that he feared he would not receive a fair and impartial trial before Judge Friedlund, and that the knowledge came to him on February 28,1966. The motion for substitution of judge was denied. At that time the trial court also denied an oral motion of defendant Savage that the court appoint for him a “Bar Association lawyer” instead of the Public Defender, who was then of record as his attorney.

The cause was then continued to March 15, 1966, when indictments 65-3492 and 66-570-71 were consolidated and continued for trial to April 5, 1966, when the State dismissed indictment 65-3492, which charged resisting a police officer.

On April 5, 1966, the trial proceeded on indictments 66-570 (unlawful use of weapons) and 66-571 (conspiracy) . Defendant Crable waived his right to a jury trial, and the trial proceeded as a bench trial for Crable and a jury trial for Savage.

At the conclusion of the trial, the jury returned a verdict of guilty against Savage on the charge of unlawful use of weapons and found him not guilty on the charge of conspiracy. Trial Judge Friedlund thereupon found defendant Crable guilty of the unlawful use of weapons and not guilty of conspiracy. After a discussion between court and counsel regarding the previous record of defendant Savage, the court sentenced him to not less than five years and not more than ten years in the Illinois State Penitentiary and entered judgment on the finding. The court sentenced defendant Crable to a year in the county jail and a fine of $500, to be worked out at $5 a day.

Considered first is the contention that the court erred on March 3, 1966, in denying the petitions of both defendants for substitution of judge. It is asserted that the court did not conduct a hearing to determine the merits of the motion as contemplated by the statute, and no testimony was heard nor any evidence received. It is argued that section 114-5 (c) makes it mandatory upon the trial court to conduct a hearing if the motion for change is based upon “cause.” Defendants argue that no hearing was held and, as the motion was supported by affidavit alleging prejudice of the trial judge, it must be presumed that the facts as alleged were true. Authorities cited in support include People v. Arnold, 76 Ill App 2d 269, 222 NE2d 160 (1966), where it is said (p 273):

“The statutory provisions authorizing a substitution should receive liberal interpretation in order to permit rather than deny a substitution. . . . Even if the petition is presented the day of the trial in a criminal case and if prejudice is alleged, so long as the trial judge had heard no matters pertaining to the merits nor indicated his views thereon, the petition for a substitution is filed within the boundaries of the statutes and in apt time. . . . And even if the prejudice of the judge came to defendant’s knowledge on the day of trial his petition presented at that time is valid. . . . An improper denial of a petition for substitution of judge constitutes reversible error.”

Also, People v. Ethridge, 78 Ill App2d 299, 223 NE2d 437 (1966), where the court discussed section 114-5 (c) and said (p 303):

“However, it is not necessary that a defendant enumerate facts to support a general allegation of prejudice . . . ; this can be reserved for the hearing which the court must conduct.”

And on page 304:

“We must conclude from the order that no testimony was heard or evidence received and that the denial of the motion was based on the arguments of counsel. If the defendant was unwilling or unable to support his charge of prejudice the order or the record should so indicate. Since the defendant was not accorded a hearing within the meaning of the statute, the defendant’s sworn allegation that he could not receive a fair and impartial trial must be taken as true. . . . The petition for substitution of judges was, therefore, improperly denied and all the actions of the court subsequent thereto are void.”

On this point the State argues that the March 3, 1966, proceedings substantiate the denial of the motions for substitution of judge. At that time defense counsel referred to indictments 66-570 and 66-571 and said, “However, before I file the petition, I would like to know what the State intends to do with indictment 65-3490, 91 and 92, which are still pending before your Honor at this time . . . .” Following this request the State nolle pressed indictments 65-3490 and 91, leaving 65-3492 remaining from the original set of indictments.

From the foregoing the State argues, “Thus, the cause from the first set of indictments dating back to December 20, 1965 was still alive and this was the basis for the fixing of venue as it existed at the moment. To summarize, it may be said that the only real change in the charges was from attempted robbery to conspiracy. This is due to the fact that indictment 66-570 contained the identical charge and language of 65-3491 which it replaced. ... It must be remembered that both sets of indictments grew out of the same factual circumstances.”

The record shows extended discussion between court and counsel before the court ruled on the March 3, 1966 petitions for the substitution of judge. In ruling, the court said, “I think these indictments grow out of the same circumstances. And you have already had a conference with the Court. The picture is altered by these circumstances. After these circumstances happen, why, always, in the past, it has been the practice of some lawyers to go shopping, so to speak, by getting into another court. And I think that is why this rule was promulgated. And this is a reindictment based upon the same circumstances. You have had a change from Judge Wells under the ten-day rule and then you have had conferences here. And now the fact they were reindicted under the same circumstances and the other cases were nollied, I think it is proper to keep these defendants before this Court. And I will deny your motion.”

Authorities cited by the State include People v. Chambers, 9 Ill2d 83, 136 NE2d 812 (1956), where it is said (P 89):

“ [W] here the court has already commenced a hearing and has by his rulings indicated his views on the merits of the cause, it is too late for the party against whom such rulings have been made to move for a change of venue.”

And People v. Lawrence, 29 Ill2d 426, 194 NE2d 337 (1963), where it is said (p 428):

“We concur with the trial court that the request for a conference was in the nature of a preliminary motion treating to a degree on the merits of the case and designed to elicit the judge’s views with respect thereto. Having sought and obtained those views, the petition came too late. Were we to hold otherwise, a petition for a change of venue could, in effect, be used as a vehicle to permit a defendant to ‘shop’ among the judges of a court for the one most leniently disposed to a plea of guilty.”

We conclude the new indictments did not constitute a new cause of action. In substance they were based on the same factual circumstances of a pending cause of action, of which they became a part and subject to its posture at that time. See People v. Doss, 382 Ill 307, 311, 46 NE2d 984 (1943). As the defendants had been accorded on December 27, 1965, the mandatory substitution of judge, to which they were entitled by subsections (a) and (b) of section 114-5, they were not entitled to any further relief under those subsections on March 3,1966.

As it is undisputed that “conferences” had been had with Judge Friedlund on the original indictments, in which, as his remarks clearly indicated, his views on the merits of the cause had been elicited, the defendants were not entitled to any relief under subsection (c) of the statute because, as stated in People v. Lawrence, supra, the petitions “came too late.” In view of our conclusions, discussion or disposition is unnecessary of points made by defendants to show prejudice under subsection (c). We hold that the March 3 petitions for substitution of judge were properly denied.

Considered next is the contention of defendant Savage that his arrest was unlawful and the search illegal. This contention is based upon chapter 38, § 107-2. There it is said that a peace officer may arrest without a warrant when “(c) He has reasonable grounds to believe that the person is committing or has committed an offense.” Defendant Savage argues that the police officers arrested him on mere suspicion based on whatever Rife told them, and “mere suspicion does not constitute reasonable grounds.” (Brinegar v. United States, 338 US 160 (1949).) Defendant states, “The simplest inquiry of Rife would have shown the officers that his grounds were untrustworthy.”

A review of defendant’s authorities on this point is not required. The situation which confronted the officers when they were stopped by Rife comes within pronouncements made in People v. Tadlock, 59 Ill App2d 481, 208 NE2d 100 (1965), where it is said (p 486) :

“It has been stated on numerous occasions that the constitution prohibits only unreasonable searches, and permits those that are reasonable. The critical issue in each case is whether the situation confronting the officer justified the search. The legality of a search is to be determined not by its results, but by the standard of reasonableness of the conduct of the officers in light of all the circumstances. ‘Police officers often must act upon a quick appraisal of the data before them, and the reasonableness of their conduct must be judged on the basis of their responsibility to prevent crime and to catch criminals.’ People v. Watkins, 19 Ill2d 11, 19, 166 NE2d 433.”

In our opinion, the circumstances under which the officer acted here were sufficient reasonable grounds to arrest defendant Savage. As to the seizure of his revolver, the facts here come within People v. McCracken, 30 Ill2d 425, 197 NE2d 35 (1964), where it is said (p 429):

“We have held that a search implies a prying into hidden places for that which is not open to view; and that a search implies an invasion and quest with some sort of force, either actual or constructive. . . . Where, as here, the articles are in plain and open view and observed by police officers under suspicious circumstances, it is not a ‘search’ nor an unreasonable seizure for the officers to make a reasonable investigation hereof. . . . Moreover, when defendant willingly handed over the articles to the officer at his request this action implied consent to the examination. . . . Hence, defendant cannot now complain that the articles which he carried in open view and willingly handed over were taken by an unreasonable search and seizure.”

Defendant Savage cannot now complain that the revolver which he abandoned in open view was taken by “an unreasonable search and seizure.”

Considered next is the contention of defendant Savage that he was denied his Sixth Amendment right to be represented by competent counsel. At the trial level Savage was represented by the Public Defender. The record shows that at the March 3, 1966, hearing of the petition for substitution of judge defendant Savage informed the court that he wanted a “Bar Association lawyer.” At that time and after he was sworn, defendant Savage stated, “Well, Miller pleaded guilty to two charges that I know for one that he wasn’t guilty of. And this will, in turn, send me to the penitentiary, his statement, just his statement; his plea of guilty involves me in a conspiracy. Now, the attempted robbery was nolle pressed. . . . [T]here is no one that ever said we attempted to rob any place except Miller. And I was indicted for this.” As to the Public Defender, Savage said, “I don’t say he was incompetent, but I was asked to plead guilty to these three, four indictments. And I don’t think this proves to me that my counselor is entirely in my favor.” After asking the Public Defender if he was prepared to defend Savage, the court stated to Savage, “As long as you are indigent, the Public Defender will continue to represent you until there is some showing that he is not competent to represent you. And I don’t think that your representation here shows any incompetence on his part. ... I know that the lawyer has had a conference with the Judge and he has probably had a conference with you. And what transpired is really no business of the Court as long as he is doing his job diligently and according to the law, which he seems to be doing.”

On the point of incompetence of counsel, defendant Savage argues that he elected to be tried by the jury and Crable elected to be tried by the judge. As both cases were tried simultaneously, “this situation could cause confusion in the introduction of evidence, since the applicable standards are quite different in jury trials and non jury trials.” Savage also states that he was charged with an additional crime carrying a much more severe penalty than Crable.

In addition to the foregoing points, defendant Savage relates criminal statistics for Cook County, which indicate that 55% of the defendants are indigent and in 1964 the Public Defender disposed of the indictments of 1,954 defendants or 48%. From these statistics Savage stated, “Our fourth point is simply that these rough statistics show that the Public Defender’s Office is overworked. . . . For these reasons, the court abused its discretion in not appointing a Bar Association lawyer to defend Savage as he had requested.”

In People v. Gray, 33 Ill2d 349, 211 NE2d 369 (1965), it is said (p 355):

“The question of competency of counsel is one of fact and cannot be based solely upon assertions ....
“Moreover, it is well settled that ‘[t]o warrant a reversal because of incompetency of counsel, the record must clearly establish not only that counsel performed his trial duties in an incompetent manner, but also that defendant was substantially prejudiced thereby.’ ”

After an examination of the transcript of the testimony in the trial proceedings, it is our observation that defendant Savage was ably represented through the trial. The Assistant Public Defender, Cornelius Toole, diligently presented objections on behalf of defendant Savage and extensively cross-examined Bife and the other witnesses for the State. As Savage was tried by a jury, we find no merit to his contention that he was prejudiced by the plea of guilty of codefendant Miller or the suggestion by the Public Defender that he (Savage) also plead guilty. Miller did not testify at the trial. It is a matter of defense strategy for defendant’s counsel to suggest that he plead guilty provided it is not used as a means to force a guilty plea which would not have been made otherwise. From the record it does not appear that defendant Savage was prejudiced on either of these points. We find no error here.

Considered finally is defendant’s contention that there was insufficient proof of his prior conviction of a felony. Chapter 38, section 24-1 (b) of Ill Rev Stats 1965, dealing with the penalty for unlawful use of weapons, provides:

“. . . A person convicted of a felony under the laws of this or any other jurisdiction, who, within 5 years of release from penitentiary or within 5 years of conviction if penitentiary sentence has not been imposed, violates any Subsection of this Section shall be imprisoned in the penitentiary from one to 10 years.”

Defendant argues that no proof was ever offered at his trial other than the indictment itself, and “proof of defendant Savage’s prior conviction required a filing of the authenticated record of the prior conviction with further adequate proof to prove beyond a reasonable doubt that this was the same individual named in the record.” Defendant’s authorities include People v. Stewart, 23 Ill2d 161, 177 NE2d 237 (1961), and People v. Hornstein, 47 Ill App2d 367, 198 NE2d 207 (1964), which, because of factual differences, we do not consider controlling here.

The record shows that because of the objections of defendant’s counsel that it was “highly prejudicial” and “contrary to the spirit of the law,” Count 2 of indictment 66-570, which set forth a prior conviction of Savage for robbery (Indictment 62-2529), was not read to the jury. Also, the offer in evidence by the State of a certified copy of the record of that conviction was denied during the trial and deferred until after the verdict of the jury. The court ruled that the prior conviction pertained to “penalty,” and it was not “within the province of the jury to consider for any reason whatsoever.”

After the guilty verdict was returned and during the pre-sentence hearing on aggravation and mitigation, the State reviewed defendant’s record and included the details of the prior conviction (62-2529), to which defendant made no objection.

We agree with the State that defendant may not ask the court to proceed in a given manner and “then assign as error in a court of review the ruling or action which he procured.” (People v. Ficarrotta, 385 Ill 108, 110, 52 NE2d 165 (1943).) Also, we find no prejudicial error in the manner the prior conviction was handled during the pre-sentencing hearing. In People v. Deweese, 27 Ill2d 332, 336, 189 NE2d 250 (1963), it is said that at a hearing in aggravation and mitigation, the “informal presentation of a defendant’s former record is not erroneous,” because the trial court is not “bound at such hearing by the usual rules of evidence.” See, also, People v. Bradford, 23 Ill2d 30, 34, 177 NE 2d 139 (1961). We find that the course pursued by the trial court was proper under the circumstances shown by this record.

We conclude defendant was given a fair trial with the effective assistance of competent counsel. Therefore, the judgment of the Circuit Court of Cook County is affirmed.

Affirmed.

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


author: MR. PRESIDING JUSTICE BURMAN

text:
    Carolyn S. David, Plaintiff-Appellee, v. Albert David, Defendant-Appellant.
    Gen. No. 52,654.
    First District, First Division.
    November 4, 1968.

      Cummings & Wyman, of Chicago (Austin L. Wyman, Jr. and Stanley M. Cahn, of counsel), for appellant.
    Moriarty, Rose, Faccenda & Hultquist, of Chicago (Donald M. Rose, of counsel), for appellee.
   MR. PRESIDING JUSTICE BURMAN

delivered the opinion of the court.

This is an appeal from a divorce decree in favor of plaintiff, Carolyn David. The decree reserved the question of alimony, directed the husband to pay child support of $60 per week, and awarded the plaintiff a sum of money equal to 33% % of the fair market value of certain stocks and one-third of the fair market value of defendant-husband’s profit sharing plan with Sears Roebuck & Company.

The plaintiff-wife originally brought an action for separate maintenance. A hearing was held on July 14, 1966, and on the same day an order was entered by the court requiring the defendant to pay plaintiff $10 per week for temporary support, $40 per week for temporary child support, and $100 for temporary attorney’s fees. Three months later, on October 14, 1966, plaintiff was given leave to file a complaint for divorce and on April 10, 1967, she filed a verified amended complaint for divorce. In paragraphs one through seven, inclusive, of her complaint, plaintiff alleged generally that the parties were married on July 26, 1958; that two children were born of the said marriage, Sandra David, age five and Mathew David, age seven; that on April 3, 1966, the defendant struck her without provocation; that in fear of serious injury plaintiff removed herself from the marital home; and that as a result the plaintiff, without fault on her part, has lived separate and apart from the defendant without interruption and continuously for more than one year prior to filing the amended complaint for divorce. The plaintiff alleged in paragraph eight of her complaint that she was without sufficient funds to support herself and the two children and that the defendant was an able-bodied man capable of supplying suitable and sufficient support. In the plaintiff’s prayer for relief she requested that in addition to her request for support, that the defendant be required to pay her a sum to be determined by the court representing a portion of the savings the parties acquired during their marital life.

The defendant filed a verified answer to plaintiff’s amended complaint, denying only the allegations of paragraph eight of the complaint. The defendant also alleged in his answer that any savings which the parties had during their marital life were solely the result of defendant’s employment, and that the plaintiff had not contributed to the savings.

The trial of the case commenced on April 17, 1967, before the court sitting without a jury. Both parties were present and represented by counsel. The plaintiff, called on her own behalf, testified that on April 3, 1966, the defendant “grabbed me by the arm and threw me against the wall and left a bruise on my arm and I hurt my head.” The following morning, April 4, 1966, when her husband was leaving for work she told him “that unless we had some kind of . . . counseling or worked out our problems that I was leaving, and he said that if I left, I would go out the door with a knife in my back.” The plaintiff then testified that she left the house that day and that she had lived separate and apart as a single person without fault on her part since April 4,1966.

Virgil Kraft was then called to testify on behalf of the plaintiff. He stated that he was a clergyman associated with the Peoples Church of Chicago and that he had known the parties for between nine and ten years. Reverend Kraft said that on April 3, 1966, the parties scuffled or fought and that the defendant bruised the plaintiff’s arm. When asked if the plaintiff gave the defendant any cause or provocation, Reverend Kraft said she had not. He also stated that the plaintiff had been living separate and apart from the defendant since April 4,1966.

Carole Hosier was the last witness called by the plaintiff. She testified that if she were asked the same questions asked Reverend Kraft, her answers would be the same as those he gave. None of the witnesses were cross-examined and when the court asked defendant’s counsel whether they had anything to present by way of defense, the answer was “no.”

An order was entered on April 17, 1967, reciting in part that “the defendant not contesting the grounds for divorce, and the Court having heard testimony of witnesses, finds that the plaintiff has presented and proved by sufficient evidence that she is entitled to a Decree of Divorce on the grounds of Desertion and that a Decree of Divorce will be entered accordingly at the time the other matters in dispute are resolved. . . .” After further hearings held on June 13, 1967, and August 4, 1967, a decree was entered on August 7, 1967, granting plaintiff a divorce and finding among other things “ [t] hat the defendant has been guilty of desertion of the plaintiff during their marriage, without cause or provocation therefor on the part of the plaintiff. That the defendant struck the plaintiff on April 3, 1966, causing her pain and suffering and threatened her with grievous bodily harm on April 4, 1966.” The court also found that the parties had not lived or cohabited together as husband and wife since April 4,1966.

The defendant-appellant contends that the decree fails on its face to show any ground for divorce, nor does the evidence disclose any such ground. Furthermore, the defendant maintains that since the decree does not find that the defendant wilfully deserted or absented himself from the plaintiff without any reasonable cause for the space of one year, the finding can only be that the defendant is guilty of constructive desertion. The defendant argues that constructive desertion exists only where an innocent spouse leaves a spouse who is guilty of conduct which in and of itself constitutes a ground for divorce. In support of his contention, the defendant cites Coolidge v. Coolidge, 4 Ill App2d 205, 124 NE2d 1; Bramson v. Bramson, 4 Ill App2d 249, 124 NE2d 33; and Nusser v. Nusser, 4 Ill App2d 538, 124 NE2d 549.

In Coolidge, the chancellor entered a decree finding the defendant-husband guilty of cruelty and of constructive desertion. The Appellate Court reversed the decree. The Court found that the three acts of physical cruelty alleged in the plaintiff’s amended and supplemental complaint were wholly uncorroborated and declared that the finding of cruelty was not supported by the evidence. Turning to the question of desertion, the Court said that the most the record showed was that the parties quarreled over money, religion and sundry other matters. This, the Court felt, was not sufficient to support the charge of desertion by the plaintiff who physically left the marital home. In the case at bar, however, the plaintiff left her home because the defendant threatened her with bodily harm and had shown by his actions the previous day that he was capable of carrying out his threat. For this reason we do not consider Coolidge to be applicable on the facts. This is also true of the other two cases cited by the defendant on this point.

The defendant feels that “the trial court concluded that one act of physical cruelty and one threat by the defendant constituted such extreme and repeated cruelty as would justify the plaintiff deserting the husband.” The defendant apparently overlooks the fact that the divorce decree clearly recites that the defendant was guilty of desertion without cause or provocation on the part of the plaintiff. The threat of April 4, 1966, provides ample support for the conclusion of the trial court that the plaintiff was justified in leaving the marital home because of the actions of her husband and that the defendant was in fact the deserting spouse. Stritar v. Stritar, 48 Ill App2d 332, 199 NE2d 274; Karman v. Karman, 24 Ill App2d 123, 164 NE2d 521; Jeffers v. Jeffers, 9 Ill App2d 572, 133 NE2d 727 (abstract); Mathews v. Mathews, 227 Ill App 465; Albee v. Albee, 43 Ill App 370, 1961 Ill L Forum 183. Although the defendant was present throughout the divorce proceedings he neither introduced evidence to contest the divorce nor denied he had threatened her with bodily harm on April 4, or that he struck her the day before causing her pain and suffering. We are satisfied that the evidence, although meager, was sufficient to establish that plaintiff had reasonable cause for leaving the defendant and that the court was justified in holding that under the circumstances the defendant was proven guilty of wilfully deserting the plaintiff without reasonable cause for the space of one year as provided in sections 1 and 8 of the Divorce Act (Ill Rev Stats 1967, c 40, pars 1, 8). Also, we find no merit to the contention that there is a fatal variance between the allegation in the complaint for divorce and the proof.

The adjustment of property rights, however, presents a more serious problem. The defendant contends that the trial court erred when it ordered him to pay the plaintiff $4,803 representing 33%% of the average fair market value as of June 13, 1967, of some 346 shares of stock in various named corporations which were in the defendant’s name when in the same decree the court reserved the question of alimony. The same error is present, the defendant maintains, in the award of one-third of the average fair market value of defendant’s profit sharing plan with Sears Roebuck & Company to the plaintiff.

Section 17 of the Divorce Act (Ill Rev Stats 1967, c 40, § 1 et seq.) provides:

Whenever a divorce is granted, if it shall appear to the court that either party holds the title to property equitably belonging to the other, the court may compel conveyance thereof to be made to the party entitled to the same, upon such terms as it shall deem equitable.

Section 18 provides:

When a divorce shall be decreed, the court may make such order touching the alimony and maintenance of the wife or husband, the . . . support of the children, or any of them as, from the circumstances of the parties and the nature of the case, shall be fit, reasonable and just. The court may order the husband or wife, as the case may be, to pay to the other party such sum of money or convey to the party such real or personal property, payable or to be conveyed either in gross or by installments as settlement in lieu of alimony, as the court deems equitable. Irrespective of whether the court has or has not in its decree made an order for the payment of alimony or support, it may at any time after the entry of a decree for divorce, upon obtaining jurisdiction of the person of the defendant by service of summons or proper notice, make such order for alimony and maintenance of the spouse and the care and support of the children as, from the evidence and nature of the case, shall be fit, reasonable and just, but no such order subsequent to the decree may be made in any case in which the decree recites that there has been an express waiver of alimony or a money or property settlement in lieu of alimony or where the court by its decree has denied alimony.

We agree with the defendant that the property award cannot be considered as a settlement in lieu of alimony as provided in section 18 because the question of alimony has been expressly reserved in view of the plaintiff’s employment. Nor is this disputed by the plaintiff for she argues that the award of a lump settlement was not a settlement in lieu of alimony, but rather an award under section 17 of the Divorce Act. It is the plaintiff’s contention that the court has the equitable power to provide a lump-sum payment in addition to reserving the question of alimony and that the award in the case at bar was given by the trial court because the court felt that under the circumstances the defendant was holding title to property which equitably belonged to the plaintiff.

The plaintiff cites the following three cases in support of her contention: Brosie v. Brosie, 329 Ill App 514, 69 NE2d 518 (abstract); Everett v. Everett, 25 Ill2d 342, 185 NE2d 201; and Imbrie v. Imbrie, 94 Ill App2d 60, 236 NE2d 381. In Brosie, there was testimony to the effect that the wife acted not only in the capacity of a farm wife, but also carried on work which ordinarily would have been done by a hired man. She shucked corn, helped mend the fence, assisted in the loading of livestock, did milking, plowed corn, and helped with the sheep shearing and numerous other farm chores. The Court found that by reason of her efforts, far beyond those of an ordinary housewife, she contributed substantially to the accumulation of the property on hand at the time of the separation.

In the Everett case, relied on by both parties, the undisputed evidence showed that the wife contributed $3,500 of her own funds towards the purchase of a home and that title was jointly held by the husband and the wife. There was also evidence that plaintiff advanced monies to the contractor during the construction of a new residence; that she spent money for mortgage payments and that she used her own money for family expenses. The trial court gave the plaintiff-wife an equitable interest in the house and also ordered the defendant to transfer one-half of his stock to his former wife. The Court affirmed the granting of an equitable interest in the house, but reversed the stock transfer order stating that there was no evidence that any of the wife’s savings, earnings or services contributed to the purchase of the shares of stock. The Court went on to say that the wife must allege and prove that she has furnished valuable consideration such as money or services other than those normally performed in the marriage relation which has directly or indirectly been used to acquire or enhance the value of the property. The rights or interests that the wife has in the property of her husband by virtue of the marriage relation alone, the Court said, will not justify a conveyance of property under section 17 of the Divorce Act.

In the last case cited by the plaintiff, Imbrie v. Imbrie, 94 Ill App2d 60, 236 NE2d 381, the trial court awarded plaintiff alimony, child support and the defendant’s interest in their home. The defendant argued that a divorce decree should not transfer a fee in the husband’s realty to his wife unless justified by special equities and that no special equities were shown. This Court disagreed with the defendant and in affirming the award quoted the trial judge’s finding:

That from the evidence regarding the needs of the plaintiff and her five children, the Court finds that a hardship would be created upon the entire family unless the marital home were awarded to the plaintiff as a partial award of alimony for the use of the plaintiff and five minor children and to house and shelter them.

Imbrie v. Imbrie, 94 Ill App2d 60, 64, 236 NE2d 381.

In the case at bar, the plaintiff neither alleged nor proved any special circumstances or equities with respect to her husband’s stock and profit sharing plan. It is undisputed that the stocks and the interest in the profit sharing plan are in the defendant’s name alone and that no personal funds of the wife were used either to acquire the shares of stock or to increase the defendant’s interest in the profit sharing plan. Everett v. Everett, 25 Ill2d 342, 185 NE2d 201. Inasmuch as the decree for divorce specifically reserves the question of alimony the award of the stock cannot be considered an award of a lump settlement in lieu of alimony. The trial court, therefore, erred in awarding the plaintiff an interest in the various stock holdings of the defendant, including the defendant’s interest in the profit sharing plan. Whether the defendant owes any money to the plaintiff because of the alleged sale of substantially all of the household furniture and for the removal of $2,700 from a savings account is a separate matter to be heard by the court.

Finally, the defendant contends that the trial court excluded evidence relating to the income of the parties and erroneously based the award of child support on incomplete and insufficient evidence of the plaintiff’s needs and the defendant’s ability to pay. The decree for divorce required the defendant to pay $30 per week for each of the two children. The record is clear that the defendant should have been permitted to cross-examine the plaintiff as to her income from other sources, such as rental paid by a lodger, and to offer evidence in his behalf as to his ability to pay for the support of the two children and we so hold.

For the reasons stated, the decree granting the plaintiff a divorce is affirmed. That part of the decree awarding the plaintiff a percentage of the fair market value of stock and the profit sharing plan, which appears in paragraphs seven and eight of the decree, is reversed. The award of $60 for the weekly support of the two children is reversed and remanded and the court is directed to permit cross-examination of the plaintiff as hereinabove indicated and to permit the defendant to present evidence of his ability to pay for the support of the children. In all other respects the decree of the Circuit Court is affirmed.

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

ADESKO and MURPHY, JJ., concur.


text:
    Mike Horvath, Plaintiff-Appellant, v. Spector Freight System, Inc., et al., Defendant-Appellee.
    Gen. No. 52,668.
    First District, First Division.
    November 4, 1968.

      Donald C. Niersbach and Theodore F. Zbiegien, of Chicago, for appellant.
    LeRoy A. Garr, of Chicago (Sidney Z. Karasik, of counsel), for appellee.
   MR. JUSTICE MURPHY

delivered the opinion of the court.

In a non jury trial of a personal injury action, the court entered judgment in favor of plaintiff for $5,500 on June 28, 1967. On defendant’s timely post-trial motion, the trial court on July 18, 1967, reduced the judgment to $3,750 without hearing any new evidence and over plaintiff’s objection. On appeal, plaintiff contends that it was error to reduce the amount of the judgment, absent plaintiff’s consent, without giving plaintiff the option of a new trial.

Plaintiff asserts that it is undisputed in Illinois that a remittitur cannot be ordered in a jury trial without the consent of plaintiff. (Baker v. Spaulding Women’s Apparel, Inc., 83 Ill App2d 455, 456, 228 NE2d 100 (1967).) Plaintiff contends that this rule also applies to a case tried by the court without a jury. In support, plaintiff cites Travers v. Wormer, 13 Ill App 39 (1883), where it is said (p 42):

“We know of no case holding that a finding by the court can be treated differently from a verdict of a jury, or that a judge has any other or different power over the one than over the other.
“The court, after finding the issues for the defendants, had the power to set the finding aside and award a new trial; and if he was of the opinion that the finding was erroneous, it was his duty to do so. But instead of awarding a new trial, he, in effect, re-tried the case, and that, too, without hearing the witnesses or receiving any evidence, but acted wholly upon his recollection of the evidence introduced at a trial which had already been concluded. This was clearly erroneous.”

See, also, Beard v. American Type Founders Co., 123 Ill App 50 (1905). Plaintiff argues that if the court felt it had erred in setting the damages at $5,500, it should have presented plaintiff with the alternative of submitting to a remittitur or having a new trial.

Defendant concedes that a remittitur cannot be ordered in a jury trial without the consent of the plaintiff. Defendant contends that the rule is applicable only in jury cases, and that in a non jury trial and within “term” time the court had the power to amend its finding and its judgment as to damages, and a new trial was not necessary.

Defendant asserts that the ground for giving the plaintiff an option for consenting to a reduction of the damage award or a new trial is that the trial court may not invade the province of the jury on the issue of damages. Cited is Koltz v. Jahaaske, 312 Ill App 623, 38 NE2d 973 (1942), where it is said (p 627):

“The rule that a trial court is powerless to reduce the damages fixed by a jury in its verdict in an action for unliquidated damages, and render judgment for a less amount, unless the party in whose favor the verdict was rendered consents to such reduction, is so generally recognized that it may be said to be of universal application .... The reason for the above rule is that such action on the part of the court in arbitrarily reducing or increasing the damages fixed by the jury in its verdict without the consent of the party unfavorably affected by such increase or decrease, would be violative of the constitutional guaranty of trial by jury.”

Defendant states that the trial court entered the judgment on June 28, 1967, and reduced the amount of the judgment on July 18, 1967, while it was still “within the breast of the court” and was subject to amendment or to being compeletely set aside. Defendant cites section 68.-3(1) of the Civil Practice Act, in which it is provided:

“In chancery cases and in cases at law tried without a jury, any party may, within 30 days after the entry of the decree or judgment, file a motion for a rehearing, or a retrial, or modification of the decree or judgment or to vacate the decree or judgment or for other relief.”

Defendant also cites Goucher v. Patterson, 94 Ill 525 (1880), where it is said (p 527):

“During the term at which a judgment or decree is rendered, the court has control over the record, and for sufficient cause appearing, may amend its judgments and decrees, or vacate and set them aside, but when the term is ended, the judgment entered and the case passes off the docket, that power ceases and an amendment of a substantial character can not be made.”

Defendant also points out that the only statutory provision for “remittitur” occurs in subsection (7) of section 68.1 of the Civil Practice Act, dealing with “post-trial motions in jury cases.” Defendant’s authorities include Dept, of Public Works v. Huff, 15 Ill2d 517, 520, 155 NE2d 563 (1959), and Roewe v. Lombardo, 76 Ill App2d 164, 175, 221 NE2d 521 (1966).

After examining the authorities cited by both parties, we conclude that the rationale of the rule that a court has no authority to enter a “remittitur” without the consent of plaintiff is applicable to jury trials only and not to non jury trials. As the provisions of section 68.3 (1) show that within 30 days the trial judge has the power to modify a judgment entered by the court in a non jury trial, we hold that this includes the power to reduce damages fixed by the court in a non jury trial on a motion timely made.

For the reasons given, the order appealed from is affirmed.

Affirmed.

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