text:
    Marie Walsh, Plaintiff-Appellee, v. State Farm Mutual Automobile Insurance Company, a Corporation, Defendant-Appellant.
    Gen. No. 51,981.
    First District, First Division.
    January 15, 1968.

      John T. Kennedy and Joseph Harrow, of Chicago, for appellant.
    Morris, Liss, Arnold & Hennessy, of Chicago (V. J. Liss and Robert A. Hennessy, of counsel), for appellee.
   MR. PRESIDING JUSTICE BURMAN

delivered the opinion of the court.

Plaintiff, Marie Walsh, brought an action for a declaratory judgment seeking a declaration by the court that she had a valid claim against the defendant, State Farm Mutual Insurance Company, under the latter’s policy. In particular, she alleged in her complaint that she was entitled to coverage under the defendant’s uninsured motorist provisions, and that the defendant had refused to honor her claim and submit it to arbitration as provided in the policy. The trial court entered judgment for the plaintiff from which this appeal is taken. No questions are raised on the pleadings.

The defendant contends on appeal that (1) the evidence adduced at trial failed to prove that the unknown car which struck plaintiff’s automobile was a “hit-and-run automobile” within the meaning of the policy; and (2) the plaintiff is not entitled to recover on the policy because she failed to comply either with the notice provisions of the policy or with the requirement that she report the accident to the police within twenty-four hours.

At trial, the plaintiff testified that on May 2, 1964, she was returning home from a visit to her sister. At about 9:30 p. m. she stopped for a red light at Higgins and Route 72 in Mt. Prospect. The highway was dark and surrounded by open country. Another car had stopped for the light and was positioned to the right of plaintiff’s automobile. At this time another car collided with the rear of her car causing her car to move forward about a car length. She did not get out of her car, but turned around and observed that “a man was sort of slumped over the wheel, and he was grinning and making faces at me and was waving with one hand.” Plaintiff looked in her rearview mirror but she was unable to observe the other car’s make or license number. The driver of the other car did not get out after the impact. The light changed and the car to the right of the plaintiff turned the corner and went on.

The plaintiff testified that she then turned around again and the driver of the car that had hit her “. . . was just making faces and waving. And he had a very funny grin on his face. I was very frightened.” Neither the plaintiff nor the party who had hit her got out of their cars. She drove on and thought the other car was following her deliberately. “He would come up behind me and drop back, and come up behind me and drop back. So all I could think of was to keep going, to keep him from forcing me off the road or hitting me.” The plaintiff further testified that she intended to ask "for help at a restaurant she knew of and stopped to make a left turn on Landmeier Road. The car that had hit her (and had been following her since the impact) approached plaintiff’s car at a fast rate of speed. She thought he was going to hit her again, but he swerved around her car and proceeded onward. She did not see the vehicle again after it passed her, but was able to observe that it was a red Rambler Station Wagon. The plaintiff was unable to observe the Rambler’s license plates. She was relieved when the car passed her, and she drove straight home.

When she arrived home the plaintiff testified that she told her husband what had happened. Neither she nor her husband called the police that night. The next morning her husband called the police “just to inquire.” Plaintiff testified that she didn’t immediately realize her neck was injured. Two weeks after the accident the plaintiff went to a doctor. On June 1, 1964, the plaintiff filed a statement with the State Farm Mutual Insurance Company.

Patrick Walsh, the plaintiff’s husband, testified that on the morning following the accident he called the Elk Grove Police Department and informed them of the accident. He told the police that his wife was unable to get the other car’s license number, and had been afraid to get out of her car. He asked the police whether or not he should come in to the station to make a “regular report” of the accident. He said that the officer informed him that there “wasn’t much point in following up” the accident, “since the license wasn’t taken.” Walsh did not leave his name with the police.

“The principles applicable to construction of insurance contracts or policies do not differ from those governing other contracts, and the established rules of construction apply in the interpretation of contracts of insurance.” ILP, Insurance, § 141. The construction of an insurance contract, therefore, entails the consideration of the instrument as a whole; and the ascertainment from the written words of the contract of the intention of the contracting parties. Pierce v. Standard Acc. Ins. Co., 70 Ill App2d 224, 281, 216 NE2d 818. The terms used in the contract are to be understood according to their plain, ordinary, and popular sense. Canadian Radium & Uranium Corp. v. Indemnity Ins. Co., 411 Ill 325, 332, 104 NE 2d 250. “In determining what significance should be given to language where used in a contract, the situation of the parties, the nature of the subject-matter with which they are dealing and the purpose sought to be accomplished are matters to be considered by the court.” Clarke & Co. v. Fidelity & Casualty Co., 220 Ill App 576, p 580. (Citations omitted.)

The relevant portions of the insurance policy are as follows:

“Policy Conditions — Applicable To All Coverages
“1. Notice of Accident, Occurrence or Loss. In the event of an accident, occurrence or loss, written notice shall be given by or on behalf of the insured to the company or any of its authorized agents as soon as practicable. . . .” (Emphasis added.)
“. . . Uninsured Automobile Coverage . . .
“Damages for Bodily Injury Caused by Uninsured Automobiles. To pay all sums which the insured or his legal representative shall be legally entitled to recover as damages from the owner or operator of an uninsured automobile because of bodily injury sustained by the insured, caused by accident and arising out of the ownership, maintenance or use of such uninsured automobile. . . .”
“Definitions . . .
“Uninsured Automobile — means: ... a hit-and-run automobile as defined
“Hit-and-Run Automobile — means an automobile which causes bodily injury to an insured arising out of physical contact of such automobile with the insured or with an automobile which the insured is occupying at the time of the accident, provided: (1) there cannot be ascertained the identity of either the operator or owner of such “hit-and-run cmtomobile”; (2) the insured or someone on his behalf shall have reported the accident within 2k howrs to a police or judicial officer or to the Commissioner of Motor Vehicles, and shall have filed with the company within 30 days thereafter a statement under oath that the insured or his legal representative has a cause or causes of action arising out of such accident for damages against a person or persons whose identity is unascertainable, and setting forth the facts in support thereof; and (3) at the company’s request, the insured or his legal representative makes available for inspection the automobile which the insured was occupying at the time of the accident.” (Emphasis added.)

The insurer argues that the facts adduced at trial do not entitle the plaintiff to coverage under the policy’s “Uninsured Motorist Coverage” because no showing was made that the identity of the automobile which struck plaintiff’s car was unascertainable, and therefore, plaintiff was not struck by a “hit-and-run automobile” as defined by the policy. The meaning of the phrase “cannot be ascertained” which is contained in the policy was a question of law for the trial judge. Sindelar v. Liberty Mut. Ins. Co., 161 F2d 712 (7th Cir, 1947). Whether or not the facts offered in evidence by plaintiff came within the provisions of the policy as legally construed was a question of fact for the court sitting as trier of the facts. ILP, Insurance, § 571.

In Riemenschneider v. Motor Vehicle Acc. Indemnification Corp., 47 Misc2d 549, 262 NYS2d 950, affirmed in 26 App Div2d 309, 274 NYS2d 71, the court had before it a policy which defined a hit-and-run automobile as one where “. . . there cannot be ascertained the identity of either the operator or the owner of such ‘hit-and-run automobile’. . . .” There the petitioner was a passenger in an auto which was hit in the rear by another vehicle. Both drivers got out of their cars. They observed no damage to either vehicle, and the petitioner stated that he had suffered no physical injury. No identification was exchanged. Thereafter petitioner filed a claim for injuries under the uninsured motorist provisions of his policy claiming to have been struck by a hit-and-run automobile. The court held that even though the petitioner might have been negligent in failing to ascertain the identity of the offending vehicle he could still recover on the policy; the court did not limit the term “hit-and-run” to those situations in which the offending vehicle immediately flees the scene of the accident following impact. The court construed the phrase “cannot be ascertained” to include situations in which the behavior of the insured was in part responsible for the lack of identification of the offending vehicle.

The insurer, in the case at bar, contends that since the insured did not get out of her car to learn the identity of the offending driver it cannot be said that his identity was unascertainable. Where there is no ambiguity in the terms of an insurance contract the language alone is determinative of the intention of the parties. Allstate Ins. Co. v. Conglis, 33 Ill App2d 370, 179 NE2d 434. The plain words of the insurance contract in the instant case do not reveal an intent to limit an insured’s coverage under the policy’s uninsured motorist provision in the manner contended for by defendant. The policy does not define a “hit-and-run automobile” as one which immediately flees the scene of an accident, but rather defines such a vehicle as one whose owner or operator cannot be ascertained. The language of the policy does not reveal that the parties had agreed that the insured would attempt to obtain the identity of the driver of the offending vehicle at the risk of her own physical safety. See State of South Dakota v. Goff, 79 SD 138, 109 NW2d 256. The purpose of the policy is to provide coverage for an insured when struck by an automobile whose driver or owner cannot be ascertained; the reasons for such an inability to ascertain are not made part of the contract of insurance. We will not add terms to the contract of insurance which the parties have not included in the language of the policy. Lentin v. Continental Assur. Co., 412 Ill 158, 105 NE2d 735.

Plaintiff testified that she was afraid to get out of her automobile to learn the identity of the driver who had struck her. She testified that the driver of the offending vehicle was behaving in an erratic and provocative manner, and that the accident took place on a dark road in open country. The trial judge as trier of the facts might reasonably have concluded that the plaintiff was unable to ascertain the identity of the driver of the car that struck her because she was reasonably afraid for her own safety. We cannot say that such a finding by the trier of fact was against the manifest weight of the evidence, nor can we say that the insurance policy excluded such a situation from coverage under its uninsured motorist provisions.

The defendant next contends that the plaintiff did not comply with the notice provisions of the policy in that she did not notify the company of the accident “as soon as practicable,” as provided in the policy. This phrase was construed by the court in London Guarantee & Accident Co. v. Shafer, 35 F Supp 647 (1940, DC Ohio) to mean that notice of the accident must be given to the insurer within a reasonable time; and whether notice was given within a reasonable time is dependent upon all of the facts and circumstances of the particular case. The purpose of such a notice requirement in an insurance policy is to provide the insurance company with an adequate opportunity to investigate the accident and prepare its defense. Weller v. Atlantic Cas. Ins. Co., 128 NJL 414, 26 A2d 503.

The record shows that the plaintiff, through her lawyer, did not notify the insurance company of her claim until June 1, 1964, about a month after the occurrence. However, the plaintiff testified that she did not consult a doctor until two weeks after the accident. Also, it is worthy of note that since the offending vehicle was unidentified no third-party claimant was present against whom the insurance company would have to prepare a defense. The trial judge could reasonably have concluded from the evidence adduced that the plaintiff under all of the circumstances had acted in a reasonable manner in notifying the company of the accident when she did, and that she had informed the company of the accident “as soon as practicable.”

Finally, the defendant contends that plaintiff failed to report the accident to the police within twenty-four hours of its occurrence as required by the policy, and therefore, the defendant is entitled to disclaim liability on its policy. We find no merit in this contention. The plaintiff’s husband testified that he called the Elk Grove Police Station within twenty-four hours after the accident and informed them of the accident. They informed him there was no need to come in and make a formal report of the accident. The failure of the police to record the report of plaintiff’s husband cannot be considered a breach of the policy requirement; clearly, a report was given to the police within twenty-four hours, and the trial judge was correct in so finding. See Casanova v. Motor Vehicle Acc. Indemnification Corp., 36 Misc2d 489, 232 NYS2d 713.

For the foregoing reasons the judgment of the Circuit Court is affirmed.

Affirmed.

MURPHY and ADESKO, JJ., concur.


source: Caselaw Access Project

author: MR. PRESIDING JUSTICE BURMAN

license: Public Domain

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Bernard A. Berg, Defendant-Appellant.
    Gen. No. 51,998.
    First District, First Division.
    January 15, 1968.

      William Levinson and David Levinson, Jr., of Chicago, for appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Robert A. Novelle, Assistant State’s Attorneys, of counsel), for appellee.
   MR. PRESIDING JUSTICE BURMAN

delivered the opinion of the court.

The defendant, Bernard Berg, was charged with a violation of chapter 38, section 16-1 (c)(1), Ill Rev Stats, in that he knowingly obtained control over property of another which he knew to have been stolen by another, with intent to deprive the owner of the use and benefit of said property. The defendant waived a jury trial. He pleaded not guilty, and after a trial was found guilty as charged. Berg was fined $100 and admitted to probation for a period of one year. He appeals from the judgment of conviction entered upon said finding of guilty. No questions are raised on the pleadings.

The defendant asks us to reverse his conviction on the ground that he was not proven guilty beyond a reasonable doubt in that the state failed to prove guilty knowledge, an essential element of the offense with which he was charged.

The record reveals that one Benson Hilt, a shoplifter, stole eighteen books on the morning of June 20,1966, from Kroch’s & Brentano’s Book Store. The books had a retail value of $88.35. Hilt was apprehended by Robert Gay, a security guard, who was employed by Kroch’s. After he had apprehended Hilt, Gay called the Chicago Police Department. Detective Earl Batch responded to Gay’s call. After he had arrived at Kroch’s he had a conversation with Hilt. Batch then proceeded to the University Book Exchange where the defendant Berg was employed as the manager.

Batch positioned himself approximately ten or fifteen feet from the cash register and observed that the defendant was going about his normal duties in the store. For about five minutes Batch looked through the books located on a shelf adjacent to where he had stationed himself. At that time Hilt entered the store carrying the stolen books in a shopping bag. Hilt approached the defendant, who was behind the counter at the cash register, and placed the shopping bag on the counter. The defendant took the books from the shopping bag, looked at them for approximately twenty or thirty seconds and told Hilt, “I’ll give you $16.75 for these books.” There was no further conversation between Hilt and the defendant. After Berg had given the money to Hilt, Officer Batch stepped forward, informed the defendant he was a police officer, and arrested Berg. Officer Batch then inquired of the defendant if he could search the premises. The defendant did not object and assisted the officer in carrying out the search.

The University Book Exchange was located around the corner from Roosevelt University. At the time of the defendant’s arrest the store was in the business of buying and selling new and used books. Berg, as the manager of the store, would frequently purchase new books secondhand. He testified that he had been purchasing said books for a period of about ten years. He further testified that he was thoroughly familiar with the reasonable value of secondhand books in Chicago; and that the price he paid for the books he purchased from Hilt was a fair and reasonable one. Berg followed his customary business procedure for the purchase of the secondhand books in his transaction with Hilt. He appraised the books, made an offer to Hilt, and paid out the price in cash. He then initialed the cash register receipt himself and had Hilt sign his name and address on the back of the receipt in view of Detective Batch. At the time of his arrest Berg was thirty-one years old and had never been arrested before.

The defendant further testified that when he received the books they were in their original dust jackets, but that he didn’t notice either the price tags or any Kroch’s & Brentano’s identification. He made no attempt to remove the labels from the books. Berg testified that he had no reason to suspect that the books had been stolen. On cross-examination he said he had seen Hilt before, but that he didn’t know him. He explained that he had purchased books in similar condition to those he purchased from Hilt on other occasions, and that the seller could be a student, an instructor, or a student acting as an agent for a teacher. He testified that there were many reasons why a person might sell books to him in their original dust jackets: perhaps a teacher had received a “desk copy” he didn’t want; a student might buy a book and then decide not to take the course; or a student might receive a book as a gift and decide not to keep it. Berg testified that he thought Hilt looked like a student.

John E. Schudy, a general manager and vice president of Economy Book Stores, Inc., testified that defendant’s reputation was the “best,” and that he still had faith in the defendant’s honesty and integrity. Schudy testified that he was familiar with the fair value of secondhand and new books and that a fair price for the books purchased by the defendant was “in the vicinity of twenty percent or twenty-two percent of the list price.” He stated that the price asked by Berg was “close” to his estimate of a fair price. He further testified that it was customary business procedure to purchase books with the price tags and labels still on them.

Our duty in reviewing the record of judgment of conviction in a criminal case entails reviewing all of the evidence adduced at trial, and if that evidence is not sufficient to remove all reasonable doubt as to the defendant’s guilt and create an abiding conviction that he is guilty then it is our duty to reverse. People v. Rossililli, 24 Ill2d 341, 181 NE2d 114.

“Before there can be a conviction for receiving stolen property the evidence must show beyond a reasonable doubt, first, that the property has, in fact, been stolen by a person other than the one charged with receiving the property; second, that the one charged with receiving it has actually received it or aided in concealing it; third, that the person so receiving the stolen property knew that it was stolen at the time of receiving it; and fourth, that he received the property for his own gain or to prevent the owner from again possessing it.” People v. Rife, 382 Ill 588, 48 NE2d 367. (Citations omitted.) The defendant contends that the State has not proved the third requirement beyond a reasonable doubt. It is true, as the State points out, that guilty knowledge can be proved by circumstantial evidence, People v. Holtzman, 1 Ill2d 562, 116 NE2d 338; and that guilty knowledge may be established by proof of circumstances which would induce belief in a reasonable man that the property offered for sale had previously been stolen. People v. Stewart, 20 Ill2d 387, 392, 169 NE2d 796. However, it is likewise true, as pointed out by the defendant, that where only circumstantial evidence is relied on to prove guilty knowledge, the circumstances must point clearly and conclusively to the fact that the defendant knew the goods were stolen and must exclude every reasonable hypothesis other than that of guilt. People v. Rubin, 361 Ill 311, 328, 197 NE 862.

We have concluded that while there are many facts and circumstances, in the record before us, tending to create the suspicion that the defendant is guilty, there are also many circumstances which tend to establish his innocence. We do not think that the guilt of the defendant has been sufficiently proved to the degree required by law.

The record reveals that the defendant was not informed by Kroch’s & Brentano’s that the books which he purchased had been previously stolen, a condition that had been agreed to at a previous meeting of certain bookstores. There was no evidence of any previous dealings between the defendant and Hilt; indeed, Hilt didn’t even testify at the trial. The defendant had no arrest record and his good reputation was testified to by his superior. It is true that the defendant purchased the books in their original dust jackets from thief shortly after the theft took place. However, these facts are not conclusive of guilt, especially when the defendant presents a plausible explanation for his actions. Cherry v. United States, 78 F2d 334 (7th Cir, 1935). Berg’s explanation that he thought Hilt was a student and that he frequently bought books from students in the same manner is borne out by the record.

The sale was rung up in the usual way on the cash register, and Hilt signed his name and address on the back of the receipt. The defendant allowed the original identification of Kroch’s & Brentano’s to remain on the price tags. See People v. Rubin, 361 Ill 311, 329, 197 NE 862. The transaction took place in a regular business establishment during the daytime and in open view. See Cherry v. United States, 78 F2d 334 (7th Cir, 1935). The defendant on behalf of his employer had legitimately purchased new books similar in appearance to those brought in by Hilt for several years. The testimony by both the defendant and his superior that the price paid to Hilt was a fair one was uncontradicted. The defendant willingly permitted the officer to search the store. See People v. McBeth, 405 Ill 608, 92 NE2d 77.

When all of the foregoing circumstances are considered together we cannot say that we have an abiding conviction of the defendant’s guilt.

For the reasons stated in this opinion, the judgment of the Municipal Division of the Circuit Court is reversed.

Reversed.

MURPHY and ADESKO, JJ., concur.


author: MR. JUSTICE DRUCKER

text:
    Richard K. Ragni, Plaintiff-Appellant, v. Lincoln-Devon Bounceland, Inc., Defendant-Appellee.
    Gen. No. 50,987.
    First District, Fourth Division.
    January 15, 1968.
    Hinshaw, Culbertson, Moelmann & Hoban, of Chicago (Donald W. Garlinger and John P. Graves, of counsel), for appellant.

      Rothschild, Hart, Stevens & Barry, of Chicago (Norman J. Barry and John J. Coffet, III, of counsel), for appellee.
   MR. JUSTICE DRUCKER

delivered the opinion of the court.

Plaintiff sought damages for injuries he received while using the equipment at defendant’s outdoor trampoline park. From the direction of a verdict at the close of his evidence, plaintiff appeals contending (1) that certain testimony of his expert was improperly excluded; (2) that there was evidence that defendant failed of its duty to warn plaintiff of certain dangers inherent in the equipment; and (3) that there was evidence that defendant negligently and inadequately supervised the trampoline park.

On September 4, 1960, plaintiff, with his then fiancee, went to defendant’s trampoline park. He paid the fifty cents admission which entitled him to the use of a trampoline for a half hour, although the rules prohibited his remaining on the trampoline for more than three minutes at a time. The trampoline was a nylon mat four feet wide and eight and one-half feet long, suspended over a shallow trench (so that it was flush with the ground) by steel springs. The springs were attached to a steel frame which completely surrounded the trampoline and which was bolted to a wooden frame. The steel frame was covered with foam padding about one and one-half inches thick. Plaintiff, then twenty-six years old, had received trampoline instructions in a college physical education course in which he had spent a total of thirty minutes throughout the course actually practicing on the trampoline. On the day in question he bounced on the trampoline for a short while and then his fiancee used it. Feeling that she was not bouncing correctly she got off and he returned. He did two standard bounces and on the third bounce fell into the springs, striking the padded steel frame with his buttocks, causing him to black out.

The park was managed by a man who had no training in trompolining but there were three or four men on duty at the time who had received instruction in using the trampoline. These men walked around the trampolines to make sure that the customers did not do anything wrong. There was a sign posted stating that customers could receive special instruction for a fee and other signs throughout the park containing certain rules for using the trampolines safely. A loudspeaker system emanating from the cashier’s cage was used to stop people from “goofing around.”

Plaintiff’s expert, Anthony Matic, testified that based on his experience with indoor trampolines, customary procedure required that a spotter stand at one corner of the trampoline and attempt to prevent the trampolinist from falling against the frame. He testified that he had taught trampolining to boys on Saturday mornings for the past fifteen years and that they always used at least one spotter and occasionally three or four “in advance cases.”

Plaintiff first contends that Mr. Matic should have been allowed to testify in three situations. Mr. Matic was prevented from answering (1) whether or not the conditions at Bounceland conformed to customary safety procedures; (2) what was the effect of the padding over the metal frame in preventing injuries; and (3) whether there was a causal relationship between the frame padding and the injury. Defendant lodged general objections to all three questions whereupon the court and counsel retired to chambers. There, in response to plaintiff’s request for greater specificity, defendant said that the expert was not qualified, that he was being asked to testify to an ultimate issue in the case and that the hypotheticals did not contain all the facts in evidence. On appeal plaintiff argues that defendant’s objections were general and therefore insufficient. Defendant argues that they were cured by the discussion in chambers and that they should be sustained. For purposes of argument we will assume, without deciding, that the testimony should have been allowed and analyze plaintiff’s second and third contentions in the light of his offer of proof. If permitted, plaintiff’s expert would have testified in substance that three or four people were not adequate to supervise twenty-five trampolines when there could be as many as seventy-five people in attendance, that the padding over the frame would give the trampolinist a false sense of security and that the padding was inadequate to prevent spinal injuries.

Plaintiff secondly contends that the presence of the one and one-half inch thick pad over the trampoline frame misled him and that defendant was under a duty to warn him that there was a hard substance beneath the mat which could cause him injury should he land on it. Plaintiff cites Calvert v. Springfield Elec. Light & Power Co., 231 Ill 290, 83 NE 184. In that case a man was killed when he went upon defendant’s roof to work on a smokestack. He fell through a weak spot in the roof which was visible to those inside but not visible from above. The court said at page 293:

The law is well settled that an owner or occupant of land who by invitation, express or implied, induces or leads others to go upon premises for any lawful purpose is liable for injuries occasioned by the unsafe condition of the land or its approaches, if such condition was known to him and not to them, and was negligently suffered to exist without timely notice to the public or to those who are likely to act upon such invitation, and if there are hidden dangers upon the premises he must use ordinary care to give persons rightfully upon the premises warning thereof, and that the owner owes such duty to an independent contractor or his servants while working upon his premises. (Emphasis supplied.)

Plaintiff also cites Corpus Juris Secundum, Vol 86, Theaters and Shows, § 42d:

The proprietors or owners of places of public amusement are required to warn patrons of dangers, which to them are hidden and latent, or not reasonably observable in the exercise of care by an ordinarily intelligent person, but which are either known to the owners or proprietors, or, in the exercise of reasonable care, could have been known or foreseen by them. (Emphasis supplied.)

In Daniel v. S-Co Corp., 255 Iowa 869, 124 NW2d 522, an Iowa case, plaintiff was injured on a similar outdoor trampoline which also had padding covering the frame. There was no warning of the fact that a hard substance lay under the pad or that it was unsafe to land on the frame pad. In ordering the trial court to enter a judgment n.o.v. the court said at page 526:

He was an especially intelligent college educated man of 35 years of age. There was no hidden danger involved in the trampoline. It was an athletic exercise of jumping upon the mat.

And at page 527:

It is well settled that a proprietor of a place of business is not required to warn invitees of a hazard which is open and obvious and as well known to the invitee as to the proprietor . . . (Cases cited.)

In Williams v. Lombardini, 38 Misc2d 146, 238 NYS2d 63, plaintiff was injured when he hit his nose on the padded frame of a similar outdoor trampoline. The court said at page 66:

Certainly the danger was obvious to one reasonably mindful of his own safety.

In the instant case plaintiff was twenty-six years old and had received instruction on indoor trampolines in college. We do not believe he needed to be told that the nylon mat in the middle of the trampoline was the only safe place to land. Defendant was under no duty to warn him that landing on the padded frame was unsafe.

Plaintiff’s third contention is that defendant failed its duty of supervision. In Corpus Juris Secundum, Vol 86, Theaters and Shows, § 42a, cited by plaintiff, it is said:

. . . The duty to exercise ordinary or reasonable care is fulfilled where the place of amusement is made as little dangerous as it can reasonably be made having regard to the contrivances necessarily used in conducting such a place. Care must be exercised to make the place of amusement as safe as is reasonably consistent with the practical operation thereof, and be reasonably adapted to the construction of the place . . .

Plaintiff’s expert Matic stated that three or four men could not adequately supervise twenty-five trampolines. He testified that in his trampoline experience one man, a spotter, generally stood at one corner of the trampoline attempting to prevent accidents like Ragni’s by pushing the trampolinist back toward the mat, that in advance cases as many as four spotters were used, that his experience with trampolines had come largely from teaching boys on Saturday mornings at an athletic club in an indoor gym, that he had discussed trampolines at meetings of a national association of directors of athletic clubs, that his experience was with indoor trampolines but that he was familiar with outdoor operations and he felt that the applicable safety features were “pretty much the same.”

In Daniel v. S-Co Corp., supra, the court said:

... As far as supervision is concerned it was not necessary that defendant place someone at every trampoline to observe the users. . . .

In Fein v. Board of Education of City of New York, 104 NYS2d 996, plaintiff was injured when he fell off of a chinning bar in defendant’s gymnasium. There was one supervisor in the gymnasium observing the use of the equipment there and one in the locker room assisting an incoming gym class. The court said at page 999:

It was not the duty of the defendant to place each and every piece of equipment, including the chinning bar, under the direct management or supervision of an instructor or other attendant or to have somebody in close proximity to the equipment who might have prevented the accident. Such a requirement under well-settled principles, would be unreasonable. (Cases omitted.)

Plaintiff, however, argues that Brumm v. Goodall, 16 Ill App2d 212, 147 NE2d 699, is controlling of the instant case. In that case plaintiff’s decedent drowned in defendant’s swimming pool. The court held that the jury could find that in view of the size and depth of the pool and the presence of approximately 175 people, there should have been two guards in the deep end rather than one. It is difficult to see how this case could control the situation before us. What is reasonable supervision depends on the facts of each case and there is little relationship between the number of supervisors necessary to guard a swimming pool and those necessary to watch a trampoline. Similarly there is little relationship between the supervision of boys in an indoor gymnasium of a private athletic club and the supervision of an adult at a public outdoor trampoline park where the fee for the use of the trampoline is fifty cents a half hour. Plaintiff did not show that the supervision in the instant case was not reasonably consistent with the practical operation of a trampoline park nor did he establish that there was a custom to provide one or more spotters for each trampoline in a public outdoor trampoline park.

In view of the foregoing the judgment of the Circuit Court of Cook County is affirmed.

Affirmed.

MCCORMICK, P. J. and ENGLISH, J., concur.


text:
    The People of the State of Illinois, Defendant in Error, v. John D. Harper (Impleaded) and Charles L. Evans (Impleaded), Plaintiffs in Error.
    Gen. Nos. 51,038, 51,039.
    First District, Fourth Division.
    January 15, 1968.

      Jay T. Frank, Martin J. Rubin, and Elias Levin, of Chicago, for plaintiffs in error.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and James C. Veldman, Assistant State’s Attorneys, of counsel), for defendant in error.
   MR. JUSTICE DRUCKER

delivered the opinion of the court.

Defendants were indicted for the burglary of the premises of the Adult Education Center of the Board of Education of the City of Chicago at 6535 South Stewart Avenue (Indictment No. 651235), for the burglary of the Convent of the Religious of the Institute of the Blessed Virgin Mary (Indictment No. 651068) located at 6541 South Stewart Avenue and for the aggravated battery of Sister Alma (Indictment No. 651069). Both defendants were tried jointly on all three indictments and were found guilty by a jury of all charges. Defendant Evans received consecutive sentences of 30 to 60 years on one burglary, 30 to 60 years on the other burglary and 7 to 10 years on the aggravated battery. Harper received sentences of 7 to 15 years on each of the burglaries and 5 to 10 years on "the aggravated battery, all to run concurrently. Both defendants appealed from the judgments of conviction and the sentences. The defendants have presented this appeal jointly.

The evidence presented on behalf of the State showed that on the evening of March 17, 1965, Sister Alma of the Religious of the Institute of the Blessed Virgin Mary lived in that order’s convent at 6541 South Stewart in Chicago. Shortly before 9:00 p. m. on that date Sister Alma checked all of the doors and windows of the convent and also checked a door which opened into a tunnel connecting with the Loretta High School which was next door. Some time before three on the following morning, she was awakened by footsteps coming up the stairs from the first floor of the convent. Through the partially opened door of her room Sister Alma heard two persons talking in the hallway and, thinking that someone might be ill, she asked if anything was wrong. A whispered voice told her to go back to sleep and an unsuccessful effort was made to close her bedroom door, but when the sounds from the hall continued, she rose to investigate. As she emerged from her room, Sister Alma was surprised to see two men in the hallway. "The man closest to her raised his arm and she could see that he was holding a long stick like a broom handle. She backed into her room and the man pursued her, striking her with the instrument he held and causing her to fall to the floor. Her assailant continued to strike her in spite of her efforts to ward off his blows with her left arm, until the sounds of approaching footsteps indicated that others in the convent had been aroused. The assailant then fled with his companion, who had been standing in the doorway of Sister Alma’s room during the beating.

By this time Mother Sophia Hinker, who occupied the room directly across the hall, had been aroused by the screams of Sister Alma and had gone out into the hall. She saw a figure in the doorway of Sister Alma’s room and found herself suddenly face to face with a man whom she later identified as defendant, John Harper. In the light from the stairwell she was able to get a good look at Harper as he brushed past her and fled down the stairs. At this same time a second man, whom Mother Hinker identified as defendant, Charles Evans, came out of Sister Alma’s room carrying in his hand what appeared to be a stick nearly two feet in length. He too fled down the stairs to the convent’s first floor. Mother Hinker went down the back stairs to the convent’s basement and found that entry had been made through the rear door which connected with the tunnel leading across to the neighboring high school building. Glass had been removed from this door. Further investigation revealed that the door at the other end of the tunnel, which leads into the high school building, was also open. Entry into the high school building had been made by breaking in a rear window.

Sister Alma was immediately taken to St. Bernard’s Hospital for treatment. She testified:

“I got two stitches in the back of my head. And they put like a compress on my forehead. I had been struck over the left eye. And I had quite a good size bump there. And my left arm was put in a sling. They thought, at first, it was broken. The wrist was very badly hurt. Then I had a big bump on the top of my left arm. And then shots and everything as soon as I got in.”

Sergeant Buczek testified that defendant Evans told him that he and a companion had broken into the school building and then the convent and that when they were discovered by Sister Alma he had beaten her with a stick he was carrying. This statement was reduced to writing and signed by Evans.

On behalf of the defense testimony was presented to the effect that John Harper spent the night of March 17-18, 1965, sleeping in a Clark Gasoline Station at 63rd and Princeton Avenue in Chicago. Harper himself stated that he was locked out of the apartment in which he was staying and that for want of a better place to go he spent the night in the gasoline service station. No evidence was presented on behalf of Charles Evans.

On appeal Harper contends the court committed reversible error in denying his motion for a severance. In his motion Harper stated that his codefendant Evans had signed a written confession which implicated him and that the confession would prejudice him. The confession stated:

“Me and Johnie [indicating John Harper] went to the convent at 65th and Stewart and broke a window on the side. We then went in and were taking cans of fruit juice, about thirty pounds of sugar, and were getting ready. We took this out of the school next to the convent. We then went into the convent and were taking some silver when a nun hollered at us. I had a stick and beat her to make her keep quiet. We then ran out. The sugar and juice we had put in the basement at 337 West 65th Street.”

When the confession was read to the jury the words “Johnie, indicating John Harper” were eliminated and the word “blank” substituted so that it read “Me and blank went to the convent,” etc. Harper argues that the elimination of his name did not dismiss from the minds of the jury the inference that “blank” was Harper inasmuch as there were two defendants being tried jointly. In People v. Johnson, 13 Ill2d 619, 150 NE2d 597, the word “blank” was substituted for defendant’s name wherever it appeared. The Supreme Court held that the substitution could not have deceived anyone as to the identity of the person mentioned in the confession. We find it was reversible error to deny the motion for a severance. However, we cannot reverse without remanding because the positive identification of Harper by Mother Hinker was believed by the jury and is sufficient to support a verdict of guilty. People v. Solomon, 24 Ill2d 586, 182 NE2d 736, and People v. Stewart, 62 Ill App2d 428, 211 NE2d 154. Therefore as to Harper, the judgments are reversed and the three cases (Case Nos. 651068, 651069 and 651235) remanded to the Circuit Court for a new trial as to him.

Evans does not challenge the sufficiency of the evidence as to the burglaries but complains that the State failed to prove the charge of aggravated battery beyond a reasonable doubt. In People v. Cavanaugh, 18 Ill App2d 279, 152 NE2d 266, at page 289, the court cited with approval the following language from a Nebraska case:

“The term ‘great bodily injury,’ as employed in the statute, is perhaps not susceptible of a precise legal definition. It is, however an injury of a graver and more serious character than an ordinary battery; and whether a particular injury is within the meaning of the statute is generally a question of fact for the jury and not of law.”

We believe that the evidence of Sister Alma as to the beating administered by Evans supports the conviction. No expert medical testimony was necessary.

Evans urges a reduction of sentences on the grounds that they were excessive and unconstitutional. In People v. Taylor, 33 Ill2d 417, 211 NE2d 673, at page 424, the court stated:

“We have previously stated that ‘ [w] here it is contended that the punishment imposed in a particular case is excessive, though within the limits prescribed by the legislature, this court should not disturb the sentence unless it clearly appears that the penalty constitutes a great departure from the fundamental law and its spirit and purpose, or that the penalty is manifestly in excess of the proscription of section 11 of article II of the Illinois constitution which requires that all penalties shall be proportioned to the nature of the offense. [Citations.] ’ (People v. Smith, 14 Ill2d 95, 97.) Such principles have not been violated here. We believe that under the now applicable statute granting reviewing courts the power to reduce sentences imposed by trial courts where circumstances warrant (Ill Rev Stats 1963, c 38, par 121-9 (b) (4), such authority should be applied with considerable caution and circumspection, for the trial judge ordinarily has a superior opportunity in the course of the trial and the hearing in aggravation and mitigation to make a sound determination concerning the punishment to be imposed than do the appellate tribunals.” (Emphasis supplied.)

In the instant case both defendants committed the two burglaries — their conduct did not differ until Sister Alma was assaulted by Evans. For this additional crime both were indicted and found guilty — Evans as the principal — Harper as an accessory. Harper was sentenced 7 to 15 years on each burglary and 5 to 10 years (10 years is the maximum) on the aggravated battery to run concurrently, while Evans received consecutive sentences of 30 to 60 years on each burglary and 7 to 10 years on the aggravated battery, also consecutive, or a total maximum sentence of 130 years compared to a maximum of 15 for Harper. We believe that the penalties applied to Evans on the burglary charges were not proportioned to the nature of the offenses.

Neither defendant had a previous felony record. When Harper was sentenced to 7 to 15 years for each of the burglaries, the sentences to run concurrently, this constituted a determination by the court of the appropriate sentences for these two crimes apart from the consideration to be given to Evans’ actual assault. Thus a sentence of 7 to 15 years on each burglary to run concurrently would appear to be appropriate for Evans also.

Both defendants were also found guilty of aggravated battery and it was appropriate, in the court’s discretion, to impose a heavier sentence upon the one who committed the actual battery. This was done and Harper was given 5 to 10 while Evans was given 7 to 10 years. We cannot say that under all the circumstances Evans’ sentence for the aggravated battery was excessive. If, therefore, Evans is sentenced to 7 to 15 years on each burglary, the sentences to run concurrently, and the sentence of 7 to 10 years for the aggravated battery runs consecutively to the sentences for the burglaries, the sentences would be “proportioned to the nature of the offense.”

We therefore reduce Evans’ sentences to 7 to 15 years for each of the burglaries to run concurrently and affirm the sentence of 7 to 10 years for the aggravated battery, this sentence to be consecutive to the sentences for the burglaries.

Reversed and remanded as to Harper. Affirmed as to Evans in Case No. 651609. Sentences modified as to Evans in Case No. 651608 and Case No. 651235 and judgments affirmed as modified.

MCCORMICK, P. J. and ENGLISH, J., concur.

       Ill Rev Stats 1963, c 38, § 19-1:
      (a) A person commits burglary when without authority he knowingly enters into, or without authority remains within a building, house trailer, watercraft, aircraft, railroad car, or any part thereof, with intent to commit therein a felony or theft.
      (b) Penalty.
      A person convicted of burglary shall be imprisoned in the penitentiary for any indeterminate term with a minimum of not less than one year.

       Ill Rev Stats 1963, c 38, § 12-4 (a):
      (a) A person who, in committing a battery, intentionally or knowingly causes great bodily harm, or permanent disability or disfigurement commits aggravated battery and shall be imprisoned in a penal institution other than the penitentiary not to exceed one year or in the penitentiary from one to 10 years.

       Located at 6535 South Stewart and at that time rented to the Adult Education Center of the Chicago Board of Education.


author: MR. JUSTICE ENGLISH

text:
    People of the State of Illinois, Appellee, v. Robert L. Pruitt, a/k/a Ulysses J. Coleman, Appellant.
    Gen. No. 51,448.
    First District, Fourth Division.
    January 15, 1968.
    Gerald W. Getty, Public Defender of Cook County, of Chicago (Brian Crowe and James J. Doherty, Assistant Public Defenders, of counsel), for appellant.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and James B. Klein, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE ENGLISH

delivered the opinion of the court.

Crime Charged

Murder.

Judgment

After a bench trial the court found defendant guilty and sentenced him to a term of 14 to 25 years.

Contention on Appeal

Defendant was not proven guilty.

Evidence for the State

At about 7:45 p. m. on April 26, 1963, Reverend James Siler and several members of his church choir were sitting in an automobile at 5924 S. Prairie Avenue, Chicago. Reverend Siler heard a gunshot which at first he thought was a firecracker. Then he saw two men running, one chasing the other, in the gangway alongside a building on the opposite side of the street. There was another shot as the first man was opening the gate at 5939 S. Prairie, and he fell backward onto his head on the public sidewalk. This was practically straight across the street from where Reverend Siler and the others were sitting in the parked car. At that juncture Reverend Siler saw “this other gentleman” walk between the legs of the man who was “flat on his back” on the sidewalk and start “firing away.” He saw the fire from the gun. The man with the gun then lit a cigarette, walked maybe 50 feet, looked around a couple of times, and began to run. It was just beginning to get dark, but Reverend Siler didn’t know for sure whether the streetlights were on. The only voice which he heard was that of “the first gentleman” who grunted when he hit the ground upon first being shot.

Anthony Lewis, age 16, was one of the ones in the car with his mother and Reverend Siler. He heard two shots, saw a man running, and then heard at least three more shots. He remembered it as “pretty dark out” and the streetlights were on.

In response to a radio call at about 8:00 p. m. that evening, Police Officer Robert Crowley found William Dudley lying on his back on the sidewalk in front of 5939 S. Prairie. His body bore multiple bullet wounds, and he was dead.

The findings of the Coroner’s physician, which were admitted into evidence by stipulation, showed ten bullet wounds, with the notation that two wounds in the hands might have been caused by some of the bullets which had entered the chest or abdomen from the front. There were also entrance wounds in the back of the hips and legs, caused by bullets which had shattered both thigh bones.

Defendant was apprehended in New York, and the gun which was taken from him at that time was introduced into evidence. Also in evidence was a signed statement by defendant which was made on January 8, 1964, after his extradition from New York. This statement was generally consistent with the testimony which defendant gave at trial.

Evidence fob the Defense

The only evidence for the defense was the testimony of defendant in his own behalf. He testified that he had known decedent for about a year; that they had lived together as “lovers.” Continuing with his testimony, on the day in question they had been drinking gin together when decedent asked for money. Although he had given him money many times before, defendant refused. In reaching for their bottle of gin which decedent was carrying, defendant felt the gun in decedent’s pocket and asked for it. At this, decedent started to hit defendant with the pistol on the side of the head. Defendant threw gin in decedent’s eyes, and while the latter was wiping his eyes defendant knocked the pistol from his hand. They then struggled with each other for the pistol. Defendant’s testimony concluded: “Dudley was on the ground with me when I picked up the gun. He was rolling around. Then I shot him, sir. As far as I can remember, I stood up over his body and shot him over his body.” In the signed statement, defendant said he had shot nine times and that decedent had not fallen to the ground until the seventh or eighth shot. The gun was a .22 revolver belonging to decedent, but he had kept it at defendant’s house.

Opinion

Defendant says that the evidence left a reasonable doubt as to his guilt. But it didn’t.

Decision

The judgment of the Circuit Court is affirmed.

Affirmed.

MCCORMICK, P. J. and DRUCKER, J., concur.

         The appeal was taken to the Supreme Court which transferred the case here.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Robert Fitzgerald, Defendant-Appellant.
    Gen. No. 51,699.
    First District, Fourth Division.
    January 15, 1968.

      Starke, Anglin, Savage, Frazin, Stewart & May, of Chicago (Howard T. Savage, Elliott L. DuBois, and Mayme Spencer, of counsel), for appellant.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Arthur H. Zimmerman, Assistant State’s Attorney, of counsel), for appellee.
   MR. JUSTICE ENGLISH

delivered the opinion of the court.

Crime Charged

Public indecency. Ill Rev Stats (1965), c 38, § 11-9.

Judgment

On a plea of guilty, defendant was sentenced to six months in jail.

Contentions on Appeal

(1) The court erred in accepting defendant’s plea of guilty without informing him of the consequences of his plea and of the maximum penalty for the crime charged.

(2) The court erred in failing to impanel a jury to determine defendant’s competency.

Opinion

As to both of defendant’s contentions on appeal the State’s Attorney has confessed error, requesting that the judgment be reversed and the cause remanded for a new trial. Since agreement of the parties cannot control such a judicial function of this court, we have been required to examine the record to see if the conduct of the proceedings by the trial judge did, indeed, demonstrate the errors alleged and confessed. People v. Kelly, 66 Ill App2d 204, 209, 214 NE2d 290; People v. Allen, 71 Ill App2d 283, 284, 218 NE2d 837; People v. Colston, 81 Ill App2d 75, 77, 225 NE2d 801.

The Code of Criminal Procedure provides that a plea of guilty may be accepted only after the court has informed the defendant of the consequences of such a plea and of the maximum penalty which might be imposed. Ill Rev Stats (1965), c 38, § 115-2 (a) (2). This record discloses that without the making of any statement to defendant, and without questioning him to ascertain his comprehension of the procedure and its consequences, defense counsel entered a plea of guilty and the court forthwith made a finding of guilty on the plea. This, of course, cannot be countenanced, as it represents a complete breakdown in the safeguards carefully constructed through the years to protect a defendant in the taking of so vital a step as pleading guilty to a criminal charge. See People v. Ballheimer, 37 Ill2d 24, 224 NE2d 811, and the cases there cited.

The record also discloses that facts presented to the court by defendant himself, by his counsel, by the State’s Attorney and by a probation officer raised a serious question as to defendant’s competence to stand trial. Without going into detail, suffice it to say that these facts were sufficient to give the court reason to believe that defendant was incompetent. Ill Rev Stats (1965), c 38, § 104-2. Failure to conduct a competency hearing under these circumstances constituted a clear violation of the statute.

Decision

We agree with the parties that the trial court committed reversible errors. The judgment is therefore reversed, and the cause remanded for a new trial which is to be commenced, however, only if defendant is first found competent in proceedings conducted pursuant to the statute last cited above.

Reversed and remanded with directions.

MCCORMICK, P. J. and DRUCKER, J., concur.


text:
    Harlem Savings Association, Plaintiff and Counter-Defendant-Appellee, v. Bruno Lesniak, Irene Lesniak, His Wife, Unknown Owners, Registrar of Torrens Titles and Golden Manor Homes, Inc., Defendants, and Bruno Lesniak and Irene Lesniak, Defendants, Counter-Plaintiffs and Third-Party Plaintiffs-Appellants, v. Harlem Savings Association, Counter-Defendant-Appellee, and Golden Manor Homes, Inc., Third-Party Defendant-Appellee.
    Gen. No. 52,687.
    First District, Fourth Division.
    January 15, 1968.

      Arthur George, of Chicago, for appellant.
    Hoft, Shapiro & Hoft, of Chicago, for appellee.
   MR. JUSTICE ENGLISH

delivered the opinion of the court.

In this matter defendants filed a notice of appeal from a decree of foreclosure entered on July 7,1967. Numerous issues are involved, relating not only to the basic litigation but also to a counterclaim and a third-party complaint.

Defendants moved in this court to expunge an order entered on December 19, 1967, in the trial court approving the Report of Sale and Distribution. In considering this motion we found that the decree of foreclosure from which this appeal was sought is not a final judgment and therefore not appealable. Calumet Federal Savings & Loan Ass’n of Chicago v. Markman, 50 Ill App2d 430, 438, 200 NE2d 419.

The authority of this court stems from the constitution and pertains only to “appeals from final judgments of a Circuit Court,” with exceptions not here pertinent. Art VI, §§ 6 and 7; Harris Trust & Savings Bank v. Briskin Mfg. Co., 63 Ill App2d 12, 15-16, 211 NE 2d 32. When we are without jurisdiction to determine an appeal it is our duty to dismiss it, even though neither of the parties has requested such action. Cook County v. Hoytt, 41 Ill App2d 122, 124, 190 NE2d 150; Village of Niles v. Szczesny, 13 Ill2d 45, 49, 147 NE2d 371. This appeal is, therefore, dismissed on the court’s own motion.

If the subject matter of this attempted appeal were again to be presented to this court, the abstracts and briefs now on file could be refiled in the new appeal without reprint.

Appeal dismissed.

MCCORMICK, P. J. and DRUCKER, J., concur.


author: JUSTICE BAUER

text:
    Herbert A. Kaufman and Betty Mae Kaufman, Plaintiffs-Appellants, v. The City of Highwood, a Municipal Corporation, Defendant-Appellee.
    Gen. No. 67-18.
    Second District.
    January 15, 1968.

      Runyard, Behanna, Conzelman, Schultz & O’Meara, and Frank M. Daly, of Waukegan, for appellants.
    Shulman and Baum, and Paul P. Black, of Chicago, for appellee.
   JUSTICE BAUER

delivered the opinion of the court.

This is an appeal from a decree of the Circuit Court of Lake County which upheld the validity of the zoning ordinance of the City of Highwood as such ordinance related to the plaintiff’s property.

The property in question is part of the abandoned right-of-way of the Chicago, North Shore & Milwaukee Railway in the City of Highwood in Lake County. It is approximately one-half mile in length from North to South and an average of 115 feet in width. The railroad tracks have been removed and the property is vacant at present. The property is bounded on the North by Old Elm Road which is the border between the City of Lake Forest and the City of Highwood, on the West by the railroad right-of-way and tracks of the Chicago, Northwestern Railroad, on the South by the abandoned car barns of the North Shore Railroad, and on the East by Sheridan Road, a state highway.

The Fort Sheridan military reservation is located across from the subject property on the East side of Sheridan Road. The Northwestern Railroad has a train station just West of the North end of the subject property and West of the train station is a small business area with nine stores and apartments in the City of Highland Park. West of the business area and beyond the Northwestern tracks is a single-family subdivision, also in the City of Highland Park.

The Commonwealth Edison Company has a small substation on the West side of the subject property and electric transmission lines run the entire length of the property at its Westerly side.

The subject property was annexed to the City of High-wood in 1963. The zoning ordinance of the city has no provision for automatic classification of annexed property and the property was not zoned until the instant case was in progress. In April, 1965, the plaintiffs purchased the property and on May 25, 1965, requested the City to zone the property for business and apartments. (As an item of interest, both the plaintiffs and the defendant-city treated the property as though it were zoned for duplex apartments.) The city denied the petition for business and apartment use on August 20, 1965, and on September 24, 1965, plaintiff filed this suit, asking that the court declare the zoning ordinances of Highwood void as they pertained to the subject property and to enjoin the city from refusing to issue building permits to the plaintiffs for construction of business buildings. The city filed its answer — and, again, both parties treated the property as though zoned for duplex residences.

After the trial had commenced the city undertook to zone the property and did so. The zoning classification ultimately applied was, not unexpectedly, for duplex use. The court found this classification to be reasonable and denied the relief prayed for by the plaintiffs. This appeal followed.

The plaintiffs first contend that the city had no right to zone the property during the course of the trial. In essence, they rely upon the rules set forth in Sgro v. Howarth, 54 Ill App2d 1, 203 NE2d 173 (1964) where the court held that a municipality could not change a long-standing zoning classification when such a change was “triggered” by an application, proper under the zoning classification at the time of the application, when the city did not approve the use. In the Sgro case, the property had been zoned for commercial use for forty years. When the plaintiff filed an application for a building permit for a gasoline station, the city, instead of granting or denying the application, started the motions necessary to rezone the property to residential use.

In the instant case it is to be noted that the application of the plaintiffs was for a “change in zoning” and the complaint sets forth that the property was zoned for “Duplex Family Residences.” The zoning ordinance as ultimately passed was “triggered” by the fact that the city became aware that what everyone had assumed to be fact was not a fact: i. e., that no formal ordinance establishing a zoning classification for the property had been passed. Such action is not precluded under the language of the Sgro case. More correctly, the right of a municipality to pass ordinances relating to zoning classifications, as was done in the instant case, follows the rule as set forth in the case of Bohan v. Village of Riverside, 9 Ill2d 561, 138 NE2d 487 (1956) where the court said, at page 566:

The mere pendency of a suit by plaintiffs does not affect the power of a municipality to pass an ordinance or the manner of exercise of such power as prescribed by statute.

Moreover, it certainly does not appear that the plaintiffs in the instant case acquired the property in question in reliance on any existing ordinance or zoning classification different from the ordinance ultimately adopted by the municipality.

Having disposed of the problem of whether the municipality had a right to adopt the ordinance in question, it now becomes necessary to ascertain the validity of that ordinance as it related to the plaintiff’s property.

As is usual in cases involving proposed land use, the evidence was in conflict as to the highest and best use of the property. Plaintiff introduced a proposed use as follows (to quote the Memorandum opinion of the trial court):

A gasoline station is proposed on the northerly 200 feet; that is to be followed, proceeding southerly, first by a restaurant, a motel, some commercial offices, and the balance is to be residential. The entire strip to be occupied by these business uses is approximately 1600 feet, and the balance is to be used for residences. The type of multiple family structures involved are five structures in number, being four floor apartment buildings, containing 16 units per structure, each unit with two-bedrooms, livingroom and kitchen, to rent for approximately $150.00 per month. According to the evidence, five entrances onto Sheridan-Road would be required, and parking space would be provided to the rear. The present main entrance to Fort Sheridan would be directly across from the intended northerly business use.

Experts called on behalf of the plaintiffs testified that, in their opinion the plaintiffs proposed land use was the “highest and best use” of the property in question, and, moreover, that in their opinion the property was wholly unsuited for duplex-residential use.

The defendant city, on its part, called expert witnesses who testified that, in their opinion, the proposed use as described by the plaintiffs, was bad from any point of view, and that the highest and best use of the property was for duplex residential.

The trial judge found, in his memorandum opinion, that “the most that can be said for the evidence in this case is that the wisdom and intelligence of the zoning in question is no more that debatable.” A careful reading of the record clearly shows that this statement of the trial court was well founded.

The rule that a zoning ordinance is presumed valid, and the burden is on a plaintiff seeking to attack an ordinance, to prove by clear and convincing evidence that the ordinance is unreasonable and unrelated to public health, safety, or welfare is well established. (Hoffman v. City of Waukegan, 51 Ill App2d 241, 244, 201 NE2d 177 (1964).) It is also clear that where room for a reasonable difference of opinion exists regarding the validity of the ordinance, the courts will uphold the ordinance. Wehrmeister v. County of Du Page, 10 Ill2d 604, 609,141 NE2d 26 (1957).

The plaintiffs have failed to meet the necessary burden of proof to overcome the presumption of the validity of the ordinance. The trial court so found and we find no reason to differ with that decision.

The judgment of the trial court is therefore affirmed.

Judgment affirmed.

DAVIS, P. J. and ABRAHAMSOÑ J., concur.


author: MR. JUSTICE SULLIVAN

text:
    The People of the State of Illinois, ex rel. Rosemarie Effertz, et al., Members of the Board of Library Directors of the Village of Franklin Park, Plaintiffs-Appellees, v. Benjamin Brzezinski, President of the Village of Franklin Park, Richard Gast, et al., Trustees of the Village of Franklin Park, Joseph Catellani, Clerk of the Village of Franklin Park, and The Village of Franklin Park, a Municipal Corporation, Defendants-Appellants.
    Gen. No. 52,082.
    First District, Third Division.
    January 18, 1968.
    Rehearing denied February 9, 1968.
    Norman E. Jacobson, of Chicago, for appellants.
    Klein, Thorpe, Kasson & Jenkins, of Chicago (Arthur C. Thorpe and Peter Pappas, of counsel), for appellees.
   MR. JUSTICE SULLIVAN

delivered the opinion of the court.

This is a suit for declaratory judgment brought by plaintiffs, the members of the Board of Library Directors of the Village of Franklin Park (library board), against the President, Village Trustees and Clerk of the Village of Franklin Park and the Village of Franklin Park. Plaintiffs sought a declaration that the corporate authorities have the duty to appropriate and levy taxes in accordance with the requested amount set forth by the plaintiffs. The trial court found in favor of plaintiffs and entered an order declaring that the President and Board of Trustees of the Village (village board) have a ministerial duty to appropriate the full sum set forth by plaintiffs and to levy taxes in that amount. Defendants appealed from that order.

The sole issue presented on appeal is whether the library board has the power to determine the amount of money to be appropriated and levied for library purposes or the power is one of the village board.

The defendants contend that after the electors have voted to establish and maintain a public library, the corporate authorities must levy an annual tax to maintain the library, but that the amount of the levy, under the terms of the Public Libraries Act (Ill Rev Stats 1965, c 81), is to be determined by defendants, the corporate authorities. The issue therefore is one of statutory interpretation and, as language directly conferring the powers on plaintiffs or defendants is not to be found within the Act, the meaning must come from a reading and understanding of the several relevant sections of the Act. This is not a question of whether a board such as the library board could be given the power of final decision, but rather what was the intention of the legislature as to this situation.

Section 3-4 of the Act states in part:

“When the electors of an incorporated town, village or township have voted to establish and maintain a public library . . . the corporate authorities of such incorporated town, village or township may levy an annual tax for the establishment and maintenance of such library, not exceeding .12% of full, fair cash value as equalized or assessed by the Department of Revenue. . .

The above section states that taxes may be levied for library use and such language has been held to mean that once the library has been legally established funds must be provided therefor by taxation. (People ex rel. Moffett v. Turnbull, 184 Ill App 151.) Although no direction is given as to who shall determine the amount to be levied, it is clear that the corporate authorities are the ones who are to levy the taxes.

The Act provides in section 1-1 that the term corporate authorities means the corporate authorities as defined in section 1-1-2 of the Illinois Municipal Code. That section provides in part as follows:

“ (2) ‘Corporate authorities’ means ...(b) the board of trustees or similar body when the reference is to villages . . (Ill Rev Stats 1965, c 24, § 1-1-2.)

Section 4-7 of the Public Libraries Act sets forth the powers and duties of the library board. It has the power of exclusive control of all moneys collected for the library and deposited to the credit of the library fund. This is control only over the disposition of those funds which have been levied and collected. The library board is also given the power to appoint a competent librarian and necessary assistants and to fix their compensation. Plaintiffs claim that that power means that the village board must therefore accept their recommendation as to funds to be appropriated or the above clause would be rendered meaningless. Plaintiffs rely on People ex rel. Egan v. City of Chicago, 310 Ill 534, 142 NE 161. In that case the statute allowed the judges of the Municipal Court to fix the number of deputy bailiffs and the amounts of their salaries within certain limitations. The court held on page 538 that the legislature had created in the judges a corporate authority, and when that act was accepted by the voters it gave the judges control of the expenses of the court and the “power to incur indebtedness on the part of the city for that purpose, for which it is the duty of the city council to provide by the appropriation of money to pay it and the levy of taxes for that purpose.” The Public Libraries Act by its own terms distinguishes the instant case from the Egan case by distinguishing the library board from corporate authorities. It refers us to a clear but narrow definition of that term as given in the Municipal Code. Throughout the Public Libraries Act the terms corporate authorities and Board of Library Directors are used and always as two separate bodies. In several sections of the Act the library board is given authority to determine policies or actions with permission of the corporate authorities (e. g. §§ 5-1, 5-2, 5-6). This would indicate that on major steps the permission or approval of the village board is needed. Certainly the total amount to be appropriated for library use is a major decision and the final approval of the sum must come from the village board.

Plaintiffs and defendants both rely on section 4-10 (6) which provides that the library board shall furnish to the village board “a statement of the financial requirements of the library for the ensuing fiscal year, and of the amount of money which, in the judgment of the board of directors, it will be necessary to levy for library purposes in the next annual tax levy ordinance;....” This clause merely requires the library board to notify the village board of the upcoming needs. This is to reflect the judgment of the library board. There is no requirement that the village board honor the total request.

The case of People ex rel. Schlaeger v. Jarmuth, 398 Ill 66, 75 NE2d 367, involved a tax to be levied for the Municipal Employees’ Annuity and Benefit Fund of the City of Chicago. The act creating this fund provided in part:

“The amount of the tax to be levied in each year shall be certified to the city council of such city, by the retirement board of the annuity and benefit fund herein provided for.”

The court held that final determination of the amount of the levy was up to the city council and said on page 70:

“Neither this section nor any other section of the act specifies that the tax levied by the city council shall be in the sum certified by the retirement board as the amount of the tax to be levied. The act nowhere states that the amount certified by the retirement board must be the amount levied by the city council. If the legislature had intended that the board should have the absolute power to fix and determine the amount of the tax to be levied and that the council should have no discretion whatever in the matter, it is only reasonable to suppose that the legislature would, in that event, have directed the council to levy the sum certified by the board instead of directing it to levy a sum ‘sufficient for the purpose of such fund in accordance with the provisions of the act/ This language makes it apparent that the action of the retirement board in determining and certifying to the city council the amount of the tax to be levied is merely advisory to the council and that it is the council and not the board, to whose discretion is committed the final determination as to the amount of the tax which is levied.”

In Ickes v. Board of Sup’rs of Macon County, 415 Ill 557, 114 NE2d 669, the court analyzed a statute which created a Veterans Assistance Commission and provided for the funding thereof. The court said on page 561:

“Analyzing the statute in question, it is apparent that the county board must make an appropriation upon the recommendation of the veterans assistance corn-mission. That appropriation, however, can be no more than the maximum amount allowed by the statute. The act does not say that the appropriation must be in the amounts recommended by the commission. It states purely and simply that the board shall appropriate such amounts as may be deemed necessary to properly compensate employees. What is a proper compensation is certainly within the discretion of the board.”

The above cases are relevant to the instant case insofar as statutory interpretations are concerned and they indicate that the intention of the legislature in enacting the Public Libraries Act was for the library board to give recommendations as to the amount to be levied, but for the village board to determine the final amount necessary for the maintenance of such library.

Plaintiffs and defendants agree that the village board may not refuse to levy any taxes for library purposes and, presumably, the amount must be fair and reasonable. However, there is no requirement in the language or spirit of the act that the village board must honor the recommendation of the library board as to the amount to be appropriated and levied if, in the opinion of the village board, the amount requested is excessive.

Defendants also raise the point that to allow the library board the power of final determination of the sum to be appropriated and levied for library purposes would violate the constitution of the State of Illinois. Because we have found that the Public Libraries Act does not vest the library board with that power, we need not consider this point.

For the above reasons the judgment order of the trial court is reversed.

Judgment reversed.

DEMPSEY, P. J. and SCHWARTZ, J., concur.


author: MR. PRESIDING JUSTICE DEMPSEY

text:
    Lena Rucker, Helen Ford, Robert I. Dixon, Sr., Robert I. Dixon, Jr., a Minor, and Bryan I. Dixon, a Minor, by Robert I. Dixon, Sr., Next Friend, Plaintiffs-Appellees, v. George Harris, Defendant-Appellant.
    Gen. No. 52,101.
    First District, Third Division.
    January 18, 1968.
    Rehearing denied February 16, 1968.

      Thomas M. Clarke, of Chicago, for appellant.
    Benjamin G. Clanton, of Chicago, for appellees.
   MR. PRESIDING JUSTICE DEMPSEY

delivered the opinion of the court.

The plaintiffs are daughters and grandchildren of Archie Weaver. Weaver and his second wife owned their two-story, two-family home in joint tenancy. They executed a joint will which provided for the disposition of their estate in the event of three contingencies: their simultaneous death, the prior death of Weaver and the prior death of his wife. In the first, they left their home and the bulk of their personal property to the daughters; in the second, Weaver devised and bequeathed his estate to his wife to use during her life and upon her death to his daughters; in the third, Mrs. Weaver devised and bequeathed her estate to her husband for life with the remainder, upon his death, to the same beneficiaries.

Archie Weaver died in 1959, predeceasing his wife. Their joint will was admitted to probate. In April, 1960, Mrs. Weaver conveyed the home to the defendant, George Harris. In October, 1960, she also executed a will devising the same property to him. She died in 1964 and her will of October, 1960, was admitted to probate over the objection of her stepdaughters. The stepdaughters appealed and this court (In re Estate of Weaver, 71 Ill App2d 232, 217 NE2d 326 (1966)) held that the joint will was a contract between the Weavers for the disposition of their entire estate and that Mrs. Weaver’s second will was void. This court directed that her second will be denied probate and that the joint will be probated instead.

The plaintiffs then filed the present action praying that Harris be compelled to execute a quitclaim deed to the property or that the conveyance to him be cancelled. The chancellor found that under the decision of this court the joint will vested the real property in the daughters, ordered the conveyance removed as a cloud on their title and enjoined Harris from exercising any act of ownership over the property.

Harris appeals from the decree and contends, first, that it must be determined from the language of the joint will whether or not the property held in joint tenancy was the subject of a contract between Weaver and his wife, and, second, that Weaver, being the first of the joint tenants to die, had no interest which could be devised and the property passed to Mrs. Weaver by operation of law.

Harris’ first contention was answered in In re Estate of Weaver. In that case, as we have pointed out, this court construed the joint will and determined that it was a contract which could not be revoked by the conflicting provision in Mrs. Weaver’s second will concerning their jointly owned real estate. No appeal was taken from that decision and it is therefore conclusive as to the defendant’s first contention.

In support of his second contention the defendant has cited cases which hold that a joint tenant who predeceases the other joint tenant has no interest in the property which can be devised because at the moment of his death the title passes to the survivor by operation of law. Cf. Klajbor v. Klajbor, 406 Ill 513, 94 NE2d 502 (1950); Eckardt v. Osborne, 338 Ill 611, 170 NE 774 (1930). From this general principle, he argues that Weaver had no interest in the property to devise and that his wife, after his death, had a complete and absolute interest which she was free to do with as she pleased. However, this general principle yields to a more particular rule of law when it is established, as in this case, that there is a contractual agreement which includes the property held in joint tenancy.

Where a husband and wife properly execute a joint will which indicates a contractual agreement between them for the disposition of their property after both of their deaths, a life estate in the property is created in the survivor with the remainder interest belonging to the beneficiaries named in the will. Bonczkowski v. Kucharski, 13 Ill2d 443, 150 NE2d 144 (1958). This is true even if the property is held in joint tenancy, providing the will evidences an intention to include such property in the ultimate devolution to the remaindermen. The property held in joint tenancy becomes subject to the agreement and the survivor will not be permitted to dispose of the property by subsequent will or conveyance. Helms v. Darmstatter, 34 Ill2d 295, 215 NE2d 245 (1966); Tontz v. Heath, 20 Ill2d 286, 170 NE2d 153 (1960).

The Weaver’s joint will was a contract for the devolution of all their property, real and personal, to the daughters of Archie Weaver. Therefore, Mamie Weaver had only a life interest in the property formerly held in joint tenancy and could convey no greater interest to the defendant.

The judgment of the Circuit Court is affirmed.

Affirmed.

SCHWARTZ and SULLIVAN, JJ., concur.


author: MR. JUSTICE SCHWARTZ

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Jeff Fort, Defendant-Appellant.
    Gen. No. 52,142.
    First District, Third Division.
    January 18, 1968.
    Marshall Patner and Alfred R. Lipton, of Chicago, for appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Barth H. Goldberg, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE SCHWARTZ

delivered the opinion of the court.

The defendant was charged with the crime of resisting or obstructing a peace officer (Ill Rev Stats, c 38, § 31-1 (1965)) and after a trial by the court he was found guilty and sentenced to serve thirty days in the House of Correction. He appeals and contends that the testimony of the arresting officer should be disregarded as self-contradictory and that in any event he (the defendant) was justified in defending himself. The facts follow.

On June 24, 1966, Officers Sullivan and Kovacs of the Chicago Police Department were assigned to investigate the theft of a shotgun from 1422 East 67th Street, Chicago. After speaking to the victim, they set out to find Jeff Fort and one Gene Hairston who were allegedly involved in the theft. They found Fort, Hairston and three other youths sitting on a front porch at 1404 East Marquette Road, Chicago. They stopped their car in front of the building and were met by Hairston. They told him that they had a charge against him of involvement in the theft. Officer Sullivan directed the other men on the porch to come downstairs and when they did so, he told them of the nature of the investigation. Sullivan went upstairs, where the five young men had been, and found the stolen shotgun. He came down and informed all five men that they were under arrest. To this, the defendant replied, “Bullshit.” That word, slang and vulgar, has a contemptuous and defiant connotation. (See Webster’s Third New International Dictionary, unabridged, 1964.) The youths were milling around the officers when the defendant directed that abusive, defiant remark to Officer Sullivan. Officer Kovacs testified that it seemed to him they were trying to take Jeff Fort from custody. Sullivan grabbed the defendant, who pushed and struck him. Kovacs testified that he saw the defendant thrashing and kicking and swinging his arms and that he was subdued by Officer Sullivan only with his aid and the aid of two other officers who had been summoned to the scene.

Defendant argues that the police officer was not justified in grabbing him; that the officer’s actions amounted to an unprovoked attack; and that under the circumstances he was privileged to repel the attack. In furtherance of this argument he emphasizes some contradictions in the testimony of Officer Sullivan, particularly as to whether the officer seized the defendant before or after being struck by him. It is not necessary that the exact sequence of events be conclusively established in order to determine whether the defendant was guilty of resisting arrest. He admits struggling with the police, and we need only determine whether his physical resistance was in response to an unreasonable exercise of force by the officers.

The Criminal Code provides that:

“A peace officer . . . need not retreat or desist from efforts to make a lawful arrest because of resistance or threatened resistance to the arrest. He is justified in the use of any force which he reasonably believes to be necessary to effect the arrest and of any force which he reasonably believes to be necessary to defend himself or another from bodily harm while making the arrest.” (Ill Rev Stats, c 38, § 7-5 (a) (1965).)

The arrest occurred in a tense situation. The officers had located a stolen shotgun and undertook to arrest five young men for the offense, when the defendant responded with his abusive and defiant remark. This unquestionably aggravated the tension and gave the police reasonable cause to believe that force was required to maintain custody of the defendant. Struggling and fighting ensued and four officers were required to restore order.

Arrests frequently are made under hazardous conditions and the peace is best preserved when the citizen submits to arrest without regard to the merits of the case. (See, c 38, § 7-7 Ill Rev Stats, (1965).) Our courts have gone to great length to preserve the individual’s right to an impartial trial and trial by combat has long been outlawed.

The defendant was proven guilty beyond a reasonable doubt and the conviction is affirmed.

Judgment affirmed.

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


author: STOUDER, J.

text:
    Myrna Brandow and Edward C. Brandow, Plaintiffs-Appellants, v. Interstate Bond Company, a Corporation, and The John Allan Company, a Corporation, Defendants-Appellees.
    Gen. No. 67-39.
    Third District.
    January 18, 1968.
    Rehearing denied February 9, 1968.
    Robert C. Carr, of Ottawa, for appellants.
    Allan L. Blair, of Chicago, and John A. McNamara, of Marseilles, for appellees.
   STOUDER, J.

Plaintiffs, Myrna Brandow and Edward Brandow, commenced this civil suit for damages in the Circuit Court of LaSalle County alleging that defendants, Interstate Bond Company and The John Allan Company, were guilty of maintenance. Plaintiffs appeal from the dismissal of their complaint. A detailed account of prior litigation between the parties may be found in People ex rel. Wright v. Doe, 26 Ill2d 446, 187 NE2d 222, and People ex rel. Wright v. Doe, 50 Ill App2d 458, 200 NE2d 370.

The facts are that Interstate purchased the property of plaintiffs at a tax sale. Issuance of a tax deed was ordered by the County Court of LaSalle County and no appeal was taken from this order. The property was then conveyed to The John Allan Company. Thereafter plaintiffs commenced a proceeding under section 72, chapter 110, Ill Rev Stats (1959), seeking to set aside the tax deed as having been secured by fraud and other improper conduct and naming Interstate and John Allan as respondents. The proceeding was dismissed for insufficiency but the Supreme Court in Wright v. Doe, 26 Ill2d 446, 187 NE 2d 222, reversed the decision of the trial court and remanded the proceeding for a trial on its merits. Additional pleadings were filed from which it appeared The John Allan Company, subsequent to the dismissal of the proceeding, had conveyed the property by quitclaim deed to Lorine and Elizabeth McMichael. Plaintiffs moved to strike the answers of the defendants, Interstate Bond Company and The John Allan Company, alleging that after the conveyance by quitclaim deed, the defendants had no interest in the litigation. The trial court denied such motion and despite plaintiffs’ renewed objections to the contrary, permitted defendants to defend against the allegations of the petition. A trial on the merits resulted in a decision adverse to plaintiffs which decision was affirmed in Wright v. Doe, 50 Ill App2d 458, 200 NE2d 370.

• In response to the complaint alleging them to be guilty of maintenance, defendants filed alternative motions supported by affidavits under sections 45 and 48, chapter 110, Ill Rev Stats (1965). Such motions alleged that the complaint did not set forth facts from which it could be concluded defendants had no interest in the prior litigation, that the issues raised by the complaint were res judicata and that the failure of the previous litigation to terminate in favor of plaintiffs was a bar to the present action.

Plaintiffs in seeking to reverse the decision of the trial court argue defendants had no interest in the subject matter, the issues raised are not res judicata and the outcome of the previous litigation is immaterial.

We believe the trial court properly dismissed the complaint. Maintenance consists of officiously inter-meddling in a suit in which one has no interest. Neff v. State Bank of Woodstock, 33 Ill App2d 53, 178 NE2d 713. Whether defendants officiously intermeddled in a suit in which they had no interest was not and could not have been an issue in the prior litigation. Consequently the doctrine of res judicata is not applicable. This does not mean that the judgment in the prior litigation is not without effect. To the extent any of the elements necessary for the plaintiffs to succeed in the present action were determined in the prior litigation such determination operates as an estoppel against the reassertion or relitigation of the same issue. Barry v. Commonwealth Edison Co., 374 Ill 473, 29 NE2d 1014, and Hoffman v. Hoffman, 330 Ill 413, 161 NE 723. Although lack of interest in the subject matter of the prior litigation is only one of the elements upon which plaintiffs' present action is based, such issue was determined adversely to plaintiffs in the prior litigation. That decision now being final, plaintiff is precluded from relitigating this issue.

When the trial court dismissed the complaint, it awarded defendants $300 as attorney’s fees under section 41, chapter 110, Ill Rev Stats (1965). The allowance of such fees was thereafter vacated by the trial court and defendants have not elected to perfect any cross appeal from such order. However, they have moved in this court for the allowance of attorney’s fees. The Statute provides the costs assessable thereunder are “. . . to be summarily taxed by the court at the trial.” In our opinion section 41, chapter 110, Ill Rev Stats (1965), contemplates that the allowance of any relief pursuant thereto is within the province of the trial court only. Accordingly the motion for the allowance of attorney’s fees is denied.

For the foregoing reasons the judgment of the Circuit Court of LaSalle County is affirmed.

Judgment affirmed.

ALLOY, P. J. and CULBERTSON, J., concur.


author: PER CURIAM

text:
    Jack R. Pawchak, as a Taxpayer, and for the Use and Benefit of All Taxpayers of the City of Joliet, Plaintiff-Appellant, v. William C. Long, d/b/a Joliet Office Machines, Central Office Equipment Company, a Corporation, Aaron Marsh, et al., and City of Joliet, a Municipal Corporation, Defendants-Appellees.
    Gen. No. 67-8.
    Third District.
    January 18, 1968.

      John F. Cirricione, of Joliet, for appellant.
    Harry Leineweber, of Joliet, for appellee.
   PER CURIAM

opinion.

This is an appeal by Plaintiff, Jack Pawchak, a taxpayer, from an order of the Circuit Court of Will County dismissing his complaint seeking to restrain the Defendant, City of Joliet, and its officials from paying to Defendant, William C. Long, any monies pursuant to a contract to furnish office equipment in the new City Hall. In the alternative Plaintiff prayed that the court restrain Defendant Long from employing Defendant, Central Office Equipment Company, as its subcontractor with respect to his agreement to furnish the new building and for other similar injunctive relief. The complaint was dismissed for failure to state a cause of action.

The complaint alleges the Defendant, Central Office Equipment Company, entered into an employment contract with the Defendant, City of Joliet. In consideration of the payment of a specified amount Central Office Equipment agreed to perform the following services: (1) Preliminary survey work; (2) equipment inventory and tagging; (3) final plans and color coordination using preliminary layouts and data supplied by others; (4) specifications of new equipment and preparation of bid and proposed forms; (5) coordination of installation. Central Office Equipment performed the services enumerated and pursuant to its recommendations, the Defendant, City of Joliet, advertised for bids for equipment to be purchased. The Defendant, Long, admitted a bid to the Defendant, City, for the sale of the equipment, including in his letter of transmittal, a statement to the effect that the Defendant, Central Office Equipment, as a subcontractor, would supply a portion of the equipment specified in the bid. Central Office Equipment recommended the acceptance of Long’s bid which was accepted by the City. It is this transaction and the relation of the parties thereto which gives rise to this action.

It is contended by Plaintiff that Central Office Equipment is a “municipal officer” of the City of Joliet and hence its participation in the sale of equipment to the City is in violation of the statute. Ill Rev Stats (1965), chapter 24, section 3-14-4, provides “No municipal officer shall be interested, directly or indirectly, in any contract, work, or business of the municipality, or in the sale of any article, whenever the expense, price, or consideration of the contract, work, business, or sale is paid either from the treasury or any assessment levied by any statute or ordinance. . . .” The issue thus presented for our consideration is whether the Defendant, Central Office Equipment Company, is a “municipal officer” within the meaning of the statute.

Article 3 of the Cities and Villages Act (Ill Rev Stats, chapter 24, section 3-1-1 et seq.) wherein the disputed statute is found provides that the term “municipal officer” refers to elected or appointed officials whose duties are continuing and not limited to a single transaction. The statute does not purport to apply to an independent contractor.

In Bristol and Gale Co. v. Industrial Commission, 292 Ill 16, 126 NE 599, the Illinois Supreme Court reviewed the numerous definitions of an independent contractor. The court noted that “an independent contractor is one who renders service to another in the course of an independent occupation, representing the will of his employer only as to the result of his work and not as to the means by which it is accomplished.”

We believe Central Office Equipment Company meets this definition in the instant case. The Defendant Company is therefore an independent contractor and is not a “municipal officer.”

Plaintiff has directed our attention to other sections of the Cities and Villages Act but in consequence of our view that Defendant, Central Office Equipment Company, is an independent contractor we do not believe that such sections are applicable.

For the foregoing reasons the order of the Circuit Court of Will County is affirmed.

Affirmed.


text:
    Evey M. Sternberg, Plaintiff-Appellant, v. Robert M. Sternberg, Defendant-Appellee.
    Gen. No. 67-22. (Abstract of Decision.)
    Third District.
    January 18, 1968.
    James E. Sutherland, of Peoria, for appellant; Smith, Whitney & Church, of Peoria, for appellee.
   Opinion by PRESIDING JUSTICE STOUDER. Not to be published1 in full.