author: STOUDER, J.

text:
    La Salle National Bank, a National Banking Association With Trust Powers Under the Laws of the State of Illinois, as Trustee Under Its Trust No. 20116, and Not Personally or Individually, Plaintiff-Appellee, v. County of Lake, a Body Politic and Corporate, Defendant-Appellant, v. Barrington Countryside Association, Barrington Hills Country Club, C. Kenneth Hunter and Nelson Forrest, for Themselves and on Behalf of All of Their Members of the North Barrington Association, Intervenors-Appellants, v. Village of Barrington, a Municipal Corporation of Illinois, Intervenor, v. Village of Barrington Hills, a Municipal Corporation of Illinois, Intervenor.
    Gen. No. 65-26.
    Second District.
    April 14, 1966.

      Snyder, Clarke, Dalziel, Holmquist & Johnson, and Bruno W. Stanczak, State’s Attorney, all of Waukegan (Stanley Grosshandler, Assistant State’s Attorney, of counsel), for appellants.
    Runyard, Behanna, Conzelman & Schultz, of Waukegan, for appellee.
   STOUDER, J.

This action was commenced in the Circuit Court of Lake County against the County of Lake, one of the Appellants, by the beneficial owners of a land trust in the name of the trustee of said trust. The complaint alleged that the Lake County Zoning Ordinance was unreasonable and confiscatory as applied to Appellee’s property and sought a declaratory judgment and injunctive relief. Other parties desirous of upholding the validity of the ordinance were permitted to intervene. From a judgment granting the relief sought, this appeal follows.

In 1939, Lake County enacted a comprehensive zoning ordinance applicable to all of the unincorporated area of Lake County. The subject property was zoned R-l, thereby limiting its use to single-family residences on lots with a minimum size of 5 acres. In 1959, this zoning classification was continued under a comprehensive rezoning plan adopted by Lake County and was in effect at the time these proceedings were commenced. Appellee claimed that the 1-1 zoning classification of the Lake County ordinance which permitted light industrial use should be applicable to his property.

Appellee’s property is a vacant lot containing 24 acres in a subdivided area located in the southwest corner of Lake County. It is bounded on the north by the right-of-way of the Chicago and Northwestern Railroad. State Route 14, also known as the Northwest Highway, is contiguous with and parallel to the north line of the railroad right-of-way. The combined rights-of-way, 299 feet in width, abut the lot on the north at an angle from the southeast to the northwest. The lot is abutted on the south by the fairways of the Barrington Country Club, which is also zoned R-l. The property lying south of the railroad and westerly from the subject property for a distance of %0 of a mile, is vacant, subdivided into large lots and is zoned R-l. The property lying east of the subject property and south of the railroad is zoned R-l except for a strip commencing 950 feet southeast of the northeast corner of the subject tract. This strip fronts along the south line of the railroad 1,250 feet, varies in width from 300 to 125 feet and is zoned 1-1 for light industrial use. The Transolene plastic factory is located along the railroad 650 feet southeast of the northeast corner of the subject property and the land on which it is located measures 750 feet along the railroad and has a width of 400 feet. Part of Transolene’s property is zoned R-l and part is included within the 1-1 area previously described. Since the plastic plant has occupied this location for more than 40 years it is considered a legal nonconforming use as to that part of its property zoned R-l. The plastic company is a small business employing 25 persons and its buildings are low lying. Except for the plastics plant the area for approximately % mile east of the subject property is vacant, with some residences being located beyond said % mile. The area lying north of the combined rights-of-way of the highway and railroad is generally zoned for residential use with lot sizes ranging from y% acre to 5 acres and is sparsely improved with residences. None of the residences face the highway. Douglas Iron Works, a family operated welding business, is located on the north side of the highway across from the Transolene plant and is zoned for commercial use. Farther to the southeast is located Ballmark Floors, also zoned for commercial use. The area on the north side of the highway, opposite the subject property, is low and swampy and has been used for dumping. A lease has been entered into between Appellee and the Chicago and Northwestern Railroad permitting Appellee to construct a grade level crossing, including warning signals, across the railroad tracks for access to State Route 14 at a cost of $35,000.

A petition to rezone the subject property was filed with the Lake County Board of Appeals requesting that it be rezoned 1-1 thereby permitting light industrial use. The Board recommended such rezoning but the County Board of Supervisors refused to approve such recommendation.

We do not believe this case presents any issue of the general validity of the R-l zoning classification but only its validity as applied to the particular property in question. Appellant contends: First, that there is a presumption of the validity of a zoning ordinance; Second, that the presumption of validity can only be overcome by clear and convincing evidence, that the ordinance is unreasonable or arbitrary and does not promote the general health and welfare; Third, that where the effect of the ordinance is reasonably debatable the presumption of validity is not overcome; and Fourth, that the hardship, if any, claimed by Appellee is the result of his own conduct.

We are thus faced with a familiar problem, namely the resolution of the conflict between the right of a property owner to use his property as he deems best and the right of the public, through its legislative bodies, to regulate the use of property and promote the general health and welfare.

We shall first consider Appellant's contention that Appellee is precluded from objecting to the zoning ordinance since his hardship, if any, is self-imposed. There is evidence in the record that the owners of the beneficial interest in the land trust are experienced real estate developers and builders, that the subject property was purchased with full knowledge of its use limitation, and that one-half of the beneficial ownership of said trust was in fact acquired after the commencement of these proceedings. This contention is fully answered in Trust Co. of Chicago v. City of Chicago, 408 Ill 91, 96 NE2d 499, and People ex rel. Chicago Title & Trust Co. v. Reiter, 25 Ill2d 41, 182 NE2d 680, where the court held that acquisition of property, shortly before the commencement of rezoning proceedings, with full knowledge of the zoning limitation, is only one factor or circumstance which should be considered by the court in determining possible hardship and that the owner is not thereby estopped from objecting to an ordinance which is otherwise improper. In the instant case we believe that the recent transfers were proper circumstances to be considered by the court but they do not prevent or estop the present owners from attacking the validity of the ordinance.

We have frequently held that whether or not a zoning ordinance is reasonably related to the general health and welfare as applied to a particular piece of property depends on the peculiar and particular circumstances of each case. In Bauske v. City of Des Plaines, 13 Ill2d 169, 148 NE2d 584, the court indicated that in determining this question the following factors should be considered: (1) The existing uses and zoning of nearby property; (2) The extent to which property values are diminished by the particular zoning restrictions; (3) The extent to which the destruction of property values of plaintiff promotes the health, safety, morals or general welfare of the public; (4) The relative gain to the public as compared to the hardship imposed upon the individual property owner; (5) The suitability of the subject property for the zoned purposes; and (6) The length of time the property has been vacant as zoned, considered in the context of land development in the area.

The court below considered numerous documentary exhibits including maps, plats, overlays and aerial photographs. It also heard the testimony of many witnesses including real estate brokers, engineers and land use planners. All of the witnesses agreed on the general topography of the area and of the subject property, on the actual uses and permitted zoning uses of the surrounding property, and on the physical relationship of the subject property to its surroundings. They also agreed there is no access to the subject property from public roads and although certain easements relating to access were presented to the Trial Court it is not now contended that such easements did provide access for the subject property. It is likewise undisputed that access over the tracks of the Chicago and Northwestern Railroad to the Northwest Highway would cost $85,000. However there are substantial areas of conflict in the evidence.

The testimony of Appellant’s witnesses presents the following picture. The highest and best use of the subject property, as it relates to the surrounding property is that permitted under the R-l classification. If the subject property were developed into 5 acre home sites the value of such sites would be $64,000, such value, however, contemplating access to the subject property other than over the railroad. There is a market in the area for homes adequately priced to justify development costs including the cost of access. The area overlooking the golf course is very desirable for 5 acre home sites and the areas along the railroad right-of-way and those from which the Transolene plant is visible could be appropriately screened from any objectionable features. Rezoning would result in a 10 to 15 percent depreciation in value of surrounding property and would interfere with residential development of property to the west of the subject property. The present services available, including sanitary drainage, are not adequate for the light industrial use. The nonconforming use, the zoning of other areas and the existence of the railroad right-of-way have no effect on the residential character of the subject property.

Appellee’s witnesses countered with the following testimony. The highest and best use of the property is light industrial and as presently zoned the property has little value. The location of the property along the railroad track and in close proximity to commercial or industrial property makes it unsuitable for residential purposes. There is no market for homes in that area priced to cover the extremely high development costs. There is other property in the area which would be more desirable as residential lots and less expensive to develop. The light industrial use would not affect the surrounding property unless a building were located near the western boundary in which event the property immediately to the west might be affected. The services, including drainage, which could be built would be adequate. The location of the subject property as related to other property indicates its character to be light industrial. The restrictions under the 1-1 zoning classification prevent any use harmful to adjoining property and are adequate to protect adjoining property.

It is the Appellant’s contention that the evidence is insufficient to support the findings and conclusions of the Trial Court. In Bauske v. City of Des Plaines, 13 Ill2d 169, 148 NE2d 584, the court said, “A difference of opinion does not render the evidence of one party unbelievable, or require a finding that the reasonableness of an ordinance is debatable. In a trial before the court without a jury, the credibility of witnesses and the weight to be accorded their testimony are still to be determined by the trier of fact.” The Trial Court’s findings will not be disturbed unless they are unsupported by the evidence.

Although the evidence in the instant case is conflicting, we nevertheless believe the record contains ample evidence to support the basic findings of the Trial Court. It can be inferred from the testimony of Appellant’s own witnesses that although the 5 acre home sites into which the subject property could be developed would have substantial value, the realization of such value would depend on access to the property other than over the railroad right-of-way. Furthermore, the value of such 5 acre home sites, even if otherwise realizable, would not justify the $35,000 cost of access to the property. The light industrial use contemplated would be consistent and compatible with the development of the surrounding area and the court’s conclusion that it would not be inconsistent with general welfare or public interest is supported by the record. This conclusion is not predicated solely on the fact that the property would be more valuable for the light industrial use or that it could not be developed economically under its restricted use. Those factors, taken in conjunction with the circumstance that such use is in fact compatible with the development of the surrounding area and not contrary to public interest, justified the conclusion of the trial court in this cause.

We also believe that the Trial Court committed no error in denying Appellant’s post-trial motion and suggestion in support thereof, that access easements had been offered by adjoining property owners. We do not believe that circumstances arising after and as a result of the court’s action are pertinent to the judgment.

We find no error in the judgment of the Circuit Court of Lake County, accordingly its judgment is affirmed.

Judgment affirmed.

CORYN, P. J. and ALLOY, J., concur.


source: Caselaw Access Project

author: ALLOY, J. CORYN, P. J.,

license: Public Domain

text:
    People of the State of Illinois, Plaintiff-Appellee, v. John Jacob Steg, et al., Defendants-Appellants.
    Gen. No. 65-45.
    Third District.
    April 14, 1966.

      Robert W. Boeye and James A. Wurbs, both of Rock Island, for appellants.
    Richard Stengel, State’s Attorney, of Rock Island, for appellee.
   ALLOY, J.

The action from which this appeal is taken originated as an indictment charging armed robbery by three defendants, John Jacob Steg, Jimmy Witt, and Valentino L. Bravo. On January 13, 1965, defendant Valentino L. Bravo pleaded guilty to the indictment and filed a petition for probation. On January 25, 1965, defendant John Jacob Steg pleaded guilty to the indictment and likewise filed a petition for probation. On January 28, 1965, the third defendant, Jimmy Witt, pleaded guilty to the indictment but did not file a petition for probation. On February 26, 1965, the court sentenced Jimmy Witt to be imprisoned in the Illinois State Penitentiary for not less than 2 years nor more than 10 years, such sentence to run consecutively with the sentence of the court in the State of Iowa. The defendant Jimmy Witt was remanded to the Sheriff of Scott County, Iowa, for further proceedings in a criminal charge against him in that county. Thereafter, the petitions for probation for the remaining two defendants were denied and they were both sentenced to the Illinois State Penitentiary for not less than 5 years nor more than 20 years. On appeal in this court, the said defendants John Jacob Steg and Valentino L. Bravo, seek to have their sentences reduced on the basis that such sentences were excessive in view of the sentence imposed upon Jimmy Witt and likewise that the sentences were excessive in view of the records and age of the defendants Steg and Bravo.

The circumstances of the crime to which the defendants had pleaded guilty indicated that on September 21, 1964, Jimmy Witt had approached defendants Steg and Bravo in a tavern in Rock Island and solicited them to “go on a job with him.” They drove to defendant Jimmy Witt’s house where Witt gave Steg and Bravo guns. Thereafter, they drove to Milan, Illinois, to the home of Mr. and Mrs. Walter Seefeldt, where Witt entered the house followed by Steg and Bravo. The trio tied up and robbed the Seefeldts of $600 and this money was subsequently turned over to Jimmy Witt and was never recovered.

The sentence imposed upon defendant Jimmy Witt was made by one of the judges of the Rock Island County Circuit Court and the sentencing of Bravo and Steg was made by another judge of such court. The trial court which sentenced the two remaining defendants, indicated that it had knowledge of the fact that the third defendant Witt had been sentenced to a term of from 2 to 10 years but stated specifically as follows:

“Now it is true that one of these defendants has been sentenced from two to ten years in the penitentiary. But the fact that this Court made a mistake in the third of this crime doesn’t mean I’m going to make a mistake likewise for two-thirds of the crime. It is the judgment and sentence of this court that both of these defendants be imprisoned in the Illinois State Penitentiary for a term of not less than five (5) nor more than twenty (20) years.”

The record indicates that defendant Steg was 23 years of age and had a prior criminal record of only one disorderly conduct charge and several minor traffic violations. Defendant Bravo was 24 years of age and had a minor criminal record of misdemeanor convictions such as disorderly conduct. The record indicates that the instigator and planner of the crime was defendant, Jimmy Witt, who received a sentence of 2 to 10 years. At the time of sentencing of defendants Steg and Bravo, the State’s Attorney had made a recommendation that they be sentenced to the penitentiary for not less than 1 nor more than 10 years.

It is obvious that if all three of the defendants had been sentenced to a term of not less than 5 years nor more than 20 years such sentence would not be excessive in any respect and this court would not disturb the sentence on appeal. Similarly, the fact that the State’s Attorney’s recommendation was not followed by the trial court would be of no significance since the trial court is not bound by such recommendations. The problem with which we are confronted, however, is not a simple one of determining whether the sentences are excessive in view of the crime committed. The issue basically is whether the results in this case are consistent with the basic principle of dispensing equal justice under the law.

Smaller sentences are consistently approved where an individual aids in disposing of a case through cooperation with the prosecution. Such is not the case before us since the actual cooperation with the prosecution was by defendant Bravo and the plea of guilty by defendants Bravo and Steg preceded the plea of guilty by Jimmy Witt. Similarly, there is nothing in the record of Jimmy Witt which would justify a smaller sentence for him, but, in fact, the records of Steg and Bravo were both better than the record of Jimmy Witt who was being charged at the time he was sentenced with an Iowa criminal violation.

We are reluctant to interfere with the sentence of a trial court which otherwise would be within the scope of the law in not being excessive in view of the nature of the crime committed. A principle is involved in this cause, however, which should be a guiding principle in disposition of criminal cases and in sentencing. Where there is no basis either in the records of the individuals involved or in the nature of the participation of such individuals in the crime which would justify a more severe sentence as to one of equal participants in such criminal venture, a sentence which arbitrarily imposes a greater punishment or penalty upon one or more of the individuals than another should not be approved, j

In People v. Freeman, 49 Ill App2d 484, 200 NE2d 146, the defendant along with 12 other individuals was convicted of certain robberies. Defendant had been granted probation while the accomplices had been sentenced to the penitentiary for terms of 1 to 3 years. Thereafter, the defendant Freeman violated his probation and was sentenced to a term of 10 to 20 years. The court on appeal in sustaining the revocation of probation reduced his sentence for reasons expressed as follows (at Page 468):

“We believe that the sentence should be reduced since the boys originally sentenced with defendant for the robberies received substantially smaller sentences. In accordance with the statute (Illinois Revised Statutes 1963, Chapter 38, Section 121-9 (b) (4)) the sentence of ten years to twenty years in the penitentiary is reduced to four years to ten years in the penitentiary.” (Citing People v. Campbell, 49 Ill App2d 269, 200 NE2d 72.)

It is suggested by the prosecutor that defendant Witt, who had been sentenced by a different judge to a term of 2 to 10 years was under a sentence which was to run consecutively with the sentence which would be imposed by the Iowa Court. The record before us does not disclose the nature of the sentence of defendant Witt in Iowa and there is nothing in the proceedings resulting in the sentencing of Steg and Bravo which indicates that this was a factor in the ultimate sentences imposed by the Trial Judge as to said defendants. The circumstance that the Illinois Court had no control over the Iowa sentence and the manner in which sentence should be directed by such court, makes it apparent that this circumstance, in itself, could not have been the motivating factor in the imposition of a 2 year to 10 year sentence as to defendant Witt and the subsequent sentences of 5 years to 10 years as to defendants Steg and Bravo.

We feel that the ends of justice require that the sentences of defendants Steg and Bravo be reduced to conform with the sentence imposed upon defendant Jimmy Witt. The sentences of defendants John Jacob Steg and Valentino L. Bravo are, therefore, reduced from the original sentences of not less than 5 years nor more than 20 years to sentences in the Illinois State Penitentiary of not less than 2 years nor more than 10 years.

The sentences of the Circuit Court are amended as herein stated and this cause is affirmed with said sentences so amended.

Sentences modified and judgments affirmed.

STOUDER, J., concurs.

CORYN, P. J.,

dissenting.

I do not agree with the decision of my colleagues in this case. Steg and Bravo, the appellants herein, are not claiming that they are innocent of the charge of armed robbery, but rather that the five to twenty year sentences imposed on them should be reduced because (1) these sentences were excessive in view of their prior records and ages, and (2) these sentences were excessive in view of the sentence imposed on Jimmy Witt, their partner in this crime.

Each of the three defendants entered a plea of guilty, but only Steg and Bravo petitioned the court for probation. Witt, after his plea, did not offer evidence in mitigation, nor did the state offer evidence of aggravation. The record, therefore, is silent as to Witt’s character, previous criminal record, employment, education, and ability, and disclosed only that Witt was twenty-five years of age, and was sentenced to a term of not less than two nor more than ten years in the Illinois State Penitentiary, which sentence was to run consecutively with the sentence of the District Court in the State of Iowa. The record further discloses that Witt was remanded by the Illinois trial court to the sheriff of Scott County, Iowa, but does not disclose the nature of the charges against him in Iowa, or the final disposition of these charges.

The record and report of proceeding of the probation hearing of Steg and Bravo includes the probation officer’s report, Steg and Bravo’s testimony, and the testimony of Walter and Alice Seefeldt, the victims of the armed robbery. It is clear from this evidence that Witt conceived the plan to rob the Seefeldts, but that Steg and Bravo willingly acquiesced and fully cooperated in the execution of this heinous crime.

The majority opinion states that the sentences imposed on Steg and Bravo are not excessive in view of the nature of the crime, and “that if all three of the defendants had been sentenced to a term of not less than five years nor more than twenty years, such sentence would not be excessive in any respect and this court would not disturb the sentence on appeal.” The majority apparently conclude that the trial judge sentencing Steg and Bravo abused his discretion by “arbitrarily” imposing a greater sentence on them than was imposed by another trial judge on Witt, and that therefore the sentences of Steg and Bravo “be reduced to conform with the sentence imposed upon . . . Witt.”

What the majority opinion advocates is that equal protection of the law requires uniform sentencing of co-partners in crime. With this concept I cannot agree. Equal protection of the law, in my opinion, means that each defendant in a criminal case shall be afforded the same constitutional and statutory rights and guarantees. It does not mean uniform justice in the sense that all trial judges, when dealing with codefendants, or defendants in substantially similar cases, must reach the same conclusions regarding the sanction to be imposed. Each trial judge is free to make his own independent determination of the sentence to be imposed, and this determination should not be disturbed on review unless the sentence is clearly excessive in light of the crime committed. People v. Hobbs, 56 Ill App2d 93, 205 NE2d 503.

The record before us does not indicate what factors were or might have been considered by the trial judge who sentenced Witt, and there is nothing in the record to indicate that the trial judge sentencing Steg and Bravo was aware of what factors were considered by the first judge in sentencing Witt. The remark of the judge who sentenced Steg and Bravo, to which reference is made in the majority opinion, merely indicates that he concluded that the gravity of the offense warranted a greater penalty than was imposed on Witt. These remarks, however, do not constitute an adjudication that all things concerning the three participants were equal, nor is it evident from these remarks that the judge sentencing Steg and Bravo was any more aware of what factors influenced the sentencing of Witt than are we. The majority of this court, however, without a record sufficient to indicate whether the differences in the sentences is arbitrary, has decided that the sentences imposed on Steg and Bravo are arbitrary merely because they differ from the sentence imposed on Witt. Thus, under the majority theory, when different judges are required to sentence different participants in a crime, the judgment of the first becomes binding on the second, and the second judge may no longer freely exercise his discretion, but must review the record and sentence of an earlier participant by a different judge, rather than make his own determination based on the nature of the crime, and the character and circumstances of the participant before him for sentencing.

The results which the majority opinion hopes to effect are ones which are properly the function of the Parole Board, and not the function of the courts. The guarantee of equal protection of the law has never been construed to require that courts impose the same sentences on joint defendants or joint participants in a crime. Leniency in one case does not transform reasonable punishment in another case to an excessive sentence. Howard v. Fleming, 191 US 126, 24 Sup Ct 49, 48 L Ed 121. The power of Illinois courts of review (Ill Rev Stats c 38, § 121-9 (b) (4)) to reduce sentences should be used with caution, and not for the purpose of granting judicial clemency, or because the reviewing court would have imposed a different sentence if sitting as the trial court. People v. Valentine, 60 Ill App2d 339, 208 NE2d 595; People v. Johnson, 68 Ill App2d 275, 215 NE2d 144.


author: MB. JUSTICE DAVIS

text:
    Louis Cernocky and Clara Cernocky, Plaintiffs-Appellants, v. Indemnity Insurance Company of North America, a Corporation, Defendant-Appellee.
    Gen. No. 65-89.
    Second District.
    April 14, 1966.
    Rehearing denied May 13, 1966.

      Snyder, Clarke, Dalziel, Holmquist & Johnson, of Waukegan, for appellants.
    Baker, McKenzie & Hightower, of Chicago, for appellee.
   MB. JUSTICE DAVIS

delivered the opinion of the court.

This is an action instituted by Louis and Clara Cernocky against the Indemnity Insurance Company of North America, their public liability insurer, to recover $20,000. This sum represents the excess above the plaintiffs’ policy limits which they were compelled to pay to obtain a release of a judgment obtained against them. The plaintiffs’ complaint alleged that the defendant insurance company was guilty of bad faith in refusing to enter into settlement negotiations initiated or sought by Theodore and Jeannette Marquardt, claimants in the personal injury suit resulting in the judgment in excess of the policy limits.

The case at bar was tried before a jury. At the close of plaintiffs’ evidence, the trial court directed a verdict in favor of the defendant. The plaintiffs appealed and urge that the trial court erred in directing the verdict and in excluding certain testimony.

The test, in determining whether the trial court acted properly in directing the verdict for the defendant at the close of plaintiffs’ case, is whether there was a total failure on the part of plaintiffs to prove any essential element of their case. Tucker v. New York, C. & St. L. R. Co., 12 Ill2d 532, 534, 147 NE2d 376 (1958); Lindroth v. Walgreen Co., 407 Ill 121, 130, 94 NE2d 847 (1950). The rather narrow issue before this court is whether, under the evidence, there was a total failure to establish any element of bad faith on the part of the defendant in its failure to achieve a settlement of the earlier lawsuit within the limits of the applicable insurance policy. In resolving this question, we must examine the evidence, together with all reasonable inferences which may be drawn therefrom, in its aspect most favorable to the plaintiffs. Watts v. Bacon & Van Buskirk Glass Co., 18 Ill2d 226, 229, 230, 163 NE2d 425 (1960); Bartolucci v. Falleti, 382 Ill 168, 173, 46 NE2d 980 (1943) ; Carlson v. New York Life Ins. Co., — Ill App2d —, — NE2d — (2nd Dist 1966).

The facts giving rise to the original suit against the plaintiffs, wherein they were defendants, are detailed in the opinion of this court in the case of Marquardt v. Cernocky, 18 Ill App2d 135, 151 NE2d 109 (2nd Dist 1958). Briefly, the plaintiffs owned a picnic ground and charged admission of those who wished to use it. On July 4, 1955, Jeannette Marquardt, one of the claimants in the original suit, and her family, went to this picnic ground, as did Anthony Orlowski, another defendant in the original suit, and his family. There were several thousand persons there on the day in question.

A part of the picnic ground was rolling and hilly, and a number of cars were parked on a hill. There were no fences, guardrails, logs or other safeguards between where the cars were parked and the lower levels where persons were picnicking. Orlowski had parked his car near the crest of the hill. One of his small daughters who was noticed playing in the car, apparently took the car out of gear, and it rolled down the hill striking Mrs. Marquardt, pinning her between a picnic bench and a tree. One of her legs was badly crushed and had to be amputated.

At the time of the accident, Mrs. Marquardt was employed, 38 years of age, married and had children. She incurred medical bills of approximately $3,800 and, at the date of the trial, had suffered a loss of wages in the sum of $5,100. Mrs. Marquardt recovered judgment against the plaintiffs here and against Orlowski in the sum of $60,000, and Mr. Marquardt recovered judgment against the same parties in the sum of $5,000. After the judgment, Orlowski was relieved of further liability by paying the Marquardts the sum of $18,000. The limits of plaintiffs’ insurance policy was $25,000 for injuries to one person and $50,000 for injuries to more than one person. After an unsuccessful appeal, the defendant insurance company paid out its policy limit of $25,000 to the Marquardts, which, together with the $18,000 previously paid by Orlowski, left a balance of $22,000 due on the judgment. The plaintiffs compromised this sum with the Marquardts for $20,000 and they then instituted this suit against the defendant insurance company for that amount.

Before instituting the original lawsuit, the attorneys for the Marquardts wrote the defendant insurance company and the insurance carrier for Orlowski seeking a conference. The defendant replied that a Mr. Mahoney would contact the attorney. He never did. On November 14, 1955, a copy of a letter addressed to the insurance carrier for Orlowski, was sent to the defendant. It itemized the special damages and again invited a discussion of the case. Again, on December 14, 1955, the Marquardts’ attorneys wrote the defendant that they would be in Chicago on December 22 and desired to discuss the case with the defendant and Orlowski’s insurance carrier. A representative of Orlowski’s company met with the Marquardts’ attorneys, but no representative appeared on behalf of the defendant.

On January 11, 1956, the Marquardts’ attorneys again wrote the two insurance companies relative to the damages sustained. This letter concluded with these words: “That $125,000 is a fair figure for all claims which we submit for your consideration.” The defendant did not respond and the Marquardts filed their suit in April, 1956 seeking $175,000.

The defendant insurance company retained the Chicago law firm of Vogel and Vogel to answer the complaint on behalf of the plaintiffs, who were defendants therein. The insurance policy contained the usual provisions relative to the insurance company defending any such action and reserving unto itself the right to “make such investigation, negotiation and settlement of any claim or suit as it deems expedient.” C. Russell Allen also joined in the answer as the plaintiffs’ personal attorney.

In the suit at bar, the trial court excluded testimony of Allen relative to a number of conversations he had with Vogel — one of the attorneys for the defendant insurance company — in which he disclosed to Vogel the desire of the Marquardts’ attorneys to attempt to settle the suit. This testimony was excluded on the grounds that it was hearsay. The first conversation was in September of 1956, at which time Allen told Vogel that the Marquardts’ attorneys had asked him if he would either disclose or obtain authority to disclose the limits of the insurance coverage; and that if the limits were reasonable, the Marquardts would be willing to settle within the limits. Vogel replied that Allen was neither to disclose the policy limits nor to discuss settlement with the Marquardts’ attorneys.

In October of 1956, Allen again reported to Vogel that the Marquardts’ attorneys had asked him whether the case could be settled, and that they would like to discuss settlement. Allen stated to Vogel that there was considerable danger of a verdict in excess of the policy coverage, and again sought permission to disclose the policy limits and to enter into settlement discussions.

On January 20, 1957, prior to trial, Vogel wrote to Allen, in part, as follows:

“. . . We have temporized in formulating and forwarding to you a proper response on behalf of the insurance company because of the gross lack of understanding on your part of the policy contract and the limits there expressed, the negotiations with reference to settlement in the case and the legal obligation of an insurance company to enter into any character of negotiations looking toward a settlement. . . .
“Next you complain of our failure to disclose the policy limits to the attorneys representing the plaintiffs. Were you familiar with the policy terms and conditions you would fully understand that this complaint is not only unjustifiable from a contractual standpoint but, if you were familiar with the adjudicated cases, has no basis in the law. We, therefore, reject your complaint that we are obligated to disclose the policy limits to anyone, particularly the adverse party.
“Furthermore, we fail to find in your letter any suggestions supporting your expressions of fear of the outcome of this lawsuit insofar as our mutual clients are concerned, an offer to contribute to a settlement on the basis that you assume. Under the circumstances and in view of your expressed fear of the outcome of a trial we are somewhat surprised to find no such suggestion. You will understand that this statement is not a request for contribution for the reason that the Indemnity Insurance Company of North America will recognize its policy obligation to its limits. The comment is made solely because of your unsupported statement that this matter is of grave importance and is likely to result in damage to your clients. Until and unless the negotiations for settlement of this case reach a point where there is a question of the disposition of the same within the policy limits of our fund we have no comment in the matter.
“Many of the matters and things stated in your letter indicate a source of information available to you and not available to us. We wish to call your attention to the cooperation clause of your clients’ policy and to the adjudicated cases in this and other jurisdictions regarding failure to cooperate. It would be most unfortunate if it should develop that your clients or their personal attorney were not fully cooperating with your clients’ insurance company, but were, on the contrary, collaborating with the attorneys for the plaintiffs in the pending suit. It is not suggested that there is evidence to that effect at this time but we call it to your attention in order that such a situation may be avoided. . . .”

During the course of the trial, Allen was again approached by the Marquardts’ attorneys and he told Vogel that they had asked whether the case could be settled and whether he (Vogel) would be willing to sit down and discuss it. Allen further stated to Vogel that the evidence was damaging; that in his opinion a large verdict would be returned; and he suggested that a conference be held to see if a settlement could be obtained. Vogel replied that he was there to try a lawsuit, not to settle a case, and that he was running the case.

This testimony was relevant and competent. It was not offered to prove that the Marquardts’ attorneys made the statements purportedly repeated by Allen to the defendant’s agent, but for the purpose of showing that Allen made such representations to him. The truth of such statements was not at issue, but rather the fact that such statements were made to defendant’s agent. The significance of this testimony was that the defendant when advised of these facts, whether true or not, conducted itself, through its agent, in a particular manner. It was this conduct, in light of the statements made to its agent, which was important in determining the issue of “good faith” on the part of the defendant. It was error to exclude this testimony. The People v. Carpenter, 28 Ill 2d 116, 120, 121, 190 NE2d 738 (1963); People v. Smith, 63 Ill App2d 369, 379, 211 NE2d 456 (2nd Dist 1965); Cleary, Handbook of Illinois Evidence, 2d Ed, sec 17.1 et seq., pp 273-276.

The plaintiffs charge that the defendant was guilty of bad faith in refusing under the particular facts of this case, to enter into settlement negotiations sought by the Marquardts’ attorneys. In passing upon the correctness of the trial court’s decision on the motion for directed verdict, we must determine what may constitute the “bad faith” charged by plaintiffs here.

It is beyond question that an insurance company, although it acts under a policy which contains limits as to its liability, may so conduct itself as to be liable for the entire judgment recovered against its insured irrespective of its policy limits. General Cas. Co. of Wisconsin v. Whipple, 328 F2d 353, 355 (CA 7th, 1964).

While the various jurisdictions differ as to the conduct which may subject an insurance carrier to liability for the excess of a judgment over its policy limits, in this jurisdiction conduct constituting fraud, negligence or bad faith may render the insurer so liable. Olympia Fields Country Club v. Bankers Indemnity Ins. Co., 325 Ill App 649, 673, 60 NE2d 896 (1st Dist 1945); Ballard v. Citizens Cas. Co. of New York, 196 F2d 96, 102 (CA 7th, 1952).

Some courts have held that in cases of this nature the “bad faith” which an insured must show is for all intents and purposes equivalent to fraud. City of Wakefield v. Globe Indemnity Co., 246 Mich 645, 225 NW 643 (1929); Johnson v. Hardware Mut. Cas. Co., 108 Vt 269, 187 A 788, 796 (1936). We cannot accept such an interpretation, and agree with the United States Court of Appeals for the Seventh Circuit, which in analyzing the Olympia Fields case stated that negligence or bad faith is the Illinois standard of conduct to be applied to the facts in determining whether the insurer is liable beyond the policy limits for failing to settle the case. The “fraud” standard is not required. We believe the better view to be that expressed by the Wisconsin Court in Hilker v. Western Automobile Ins. Co., 204 Wis 1, 235 NW 413, 414, and quoted by the Court in the Olympia Fields case at page 669, to-wit:

“. . . Terms which are not strictly convertible or synonymous have been used by different courts to indicate the same thing. Negligence has been used by some courts to mean the same thing that other courts have designated as bad faith. Bad faith, especially, is a term of variable significance and rather broad application. Generally speaking, good faith means being faithful to one’s duty or obligation; bad faith means being recreant thereto. In order to understand what is meant by bad faith, a comprehension of one’s duty is generally necessary, and we have concluded that we can best indicate the circumstance under which the insurer may become liable to the insured by failure to settle by giving with some particularity our conception of the duty which the written contract of insurance imposes upon the carrier.”

We agree that the words “good faith” and “bad faith” are not particular words of art as used here. They mean either being faithful or unfaithful to the duty or obligation that is owed.

The insurance contract in question does not itself expressly impose any duty upon the insurer, a breach of which makes it liable to the insured for failure to compromise the claim.. The contract leaves unto the insurer complete discretion with regard to the conduct of the defense of any action brought against the insured, including the matter of negotiation and settlement. It is this relationship and right which creates the duty to the insured. So long as the recovery sought in an action may not exceed the policy limits, the insurer need not consider the interests of the insured in conducting the defense. When, however, an action arises in which the recovery may exceed the policy limits of the insured’s protection, the interests of the insured must also be of concern to the insurer in the conduct of the litigation. It is at this point that the duty arises on the part of the insurer to the insured. Olympia Fields Club v. Bankers Indemnity Ins. Co., supra, at 670.

The extent of the duty — that is the amount of consideration that must be given by the insurer to the insured’s interests — is differently defined by various jurisdictions. There is some authority — primarily in earlier cases— that the insurer may give paramount consideration to its own interests. Some jurisdictions hold that the insurer must give “some” consideration to the insured’s interests. Apparently, it is most frequently held that the insurer must give equal thought to the insured’s interest; and in some cases it is even held that the insurer must give paramount consideration to the insured’s interest. 7 Am Jur2d, Automobile Insurance, section 156, pp 484-487.

In Olympia Fields, supra, the court, at page 662, in quoting from American Mut. Liability Ins. Co. v. Cooper, 61 F2d 446, stated:

“In our opinion the insurer cannot escape liability by acting upon what it considers to be for its own interest alone, but it must also appear that it acted in good faith and dealt fairly with the insured. The insurer, as it had a right to do under the policy, assumed exclusive control of the claim against the insured, and took unto itself the power to determine for the insured all questions of liability, settlement, of defense and management before and during trial, and of appeal after final judgment. We are of opinion that this relationship imposes upon the insurer the duty, not under the terms of the contract strictly speaking, but because of and flowing from it, to act honestly and in good faith toward the insured. It was open to the jury to find that the insurer did not perform this duty.”

By the nature of the insurance transaction, the insured must barter to the insurer the right to conduct the defense of litigation and of settlement negotiations. This is essential to the risk the insurer assumes. By virtue of this, however, there is imposed upon the insurer the duty to give to the insured’s interests consideration, at least equal to that of its own. General Cas. Co. of Wisconsin v. Whipple, supra, 355, 356.

This duty is well summarized in Ballard, supra, at 102:

“We hold it to be the law of Illinois that in investigating, defending, considering questions of settlement, and on the question of appeal, the insurance company must give the interests of the insured equal consideration with its own interests and it must in all respects deal fairly with the insured. The applicable rule is well stated in American Fidelity & Casualty Co., Inc. v. G. A. Nichols Co., 10 Cir, 173 F2d 830, 832: ‘When a liability insurance company by the terms of its policy obtains from the insured a power, irrevocable during the continuance of its liability under the policy, to determine whether an offer of compromise of a claim shall be accepted or rejected, it creates a fiduciary relationship between it and the insured with the resulting duties that grow out of such a relationship. Under policies like those here involved, the insurer and the insured owe to each other the duty to exercise the utmost good faith. While the insurance company, in determining whether to accept or reject an offer of compromise, may properly give consideration to its own interests, it must, in good faith, give at least equal consideration to the interests of the insured and if it fails so to do it acts in bad faith.’ ”

Tested by these standards, we believe that there was sufficient evidence to overcome defendant’s motion for a directed verdict at the close of plaintiffs’ case. Concerning the question of settlement, there were numerous apparent attempts on the part of the Marquardts’ attorneys and on the part of plaintiffs’ attorneys to see if a settlement could be achieved within the insurance policy limits. The defendant summarily and emphatically refused to discuss settlement; to inform the Marquardts of the policy limits so that they could determine if they could make an offer of settlement within the limits; or to permit plaintiffs’ personal counsel to do so. Such conduct indicated that the defendant did not give equal consideration to the insured’s interest. Therefore, it was error for the trial Court to direct a verdict for the defendant at the close of plaintiffs’ case.

This case differs in one material respect from the traditional cases such as Olympia and Ballard, supra, in that in the case at bar, there was no offer by the Marquardts’ attorneys, before or during the trial, to settle the case within the policy limits. However, under this factual situation, we do not believe that such circumstance is fatal to plaintiffs’ case. The evidence, which was erroneously excluded, indicated the fervent desire and frequent attempts of the Marquardts’ attorneys to try to settle the case, and that the attorney and agent of the defendant insurance company was so informed. The Marquardts’ attorneys importuned the defendant, but to no avail, to advise them of the policy limits so that an attempt could be made by them, to achieve a settlement within these limits. They made these overtures through Allen, "the plaintiffs’ personal attorney, with whom they apparently felt they could better communicate. They were denied an opportunity to decide whether they would settle within the policy limits and their invitation to negotiate was refused.

Our courts have since recognized the relevancy of being informed of the policy limits in evaluating a case and its aid in achieving settlements. People ex rel. Terry v. Fisher, 12 Ill2d 231, 238-240, 145 NE2d 548 (1957). The fact that no offer was made by Marquardts to settle within the policy limits is merely one factor to be considered in light of the surrounding circumstances in determining whether the defendant was guilty of bad faith.

The defendant argues that Whipple, supra, held that under the law of Illinois, the insurance company had no affirmative duty to attempt to settle the case within the policy limits. The court did not so hold. It stated at page 357:

“We hold that under the facts of this case, no reasonable person, after equal consideration of the interests of the insurer and the insured, would decide that the insurer had an affirmative duty to attempt to settle the case within the policy limits.” (Emphasis ours.)

The court there held that under the particular facts before it, the insurance company, as a matter of law, had no affirmative duty to attempt to settle the case in order to fulfill its duty of exercising good faith to its insured’s interests. Among the facts there considered were these: the policy limits were $50,000; the lowest settlement offer received from the claimants was approximately $190,-000; just prior to trial, the claimants’ attorneys informed defendant that they would not settle within the policy limits; and there was no refusal to disclose the policy limits. In Whipple, there was no condition created by the taciturnity of the insurer itself rendering it impossible for the insured to determine whether a settlement could be achieved within the policy limits.

We acknowledge that in Moore v. Columbia Cas. Co., 174 F Supp 566 (SD Ill 1959), cited by defendant, the court stated at page 572 that, “Where there is no opportunity to settle within the policy limits, I fail to see how the insurance company could be guilty of lack of bad (sic) faith, fraud, or negligence in failing to settle within the policy limits.” (Emphasis ours), but we point out that the case is factually inapposite. In Moore, the plaintiff-insured at all times insisted that the accident did not occur; the defendant-insurer did not refuse to disclose policy limits or to discuss settlement; and the insurance company in fact made an offer of settlement within the policy limits, which was not accepted, and no counteroffer followed. The policy limits were $10,000, and there was evidence that the claimant was neither willing nor had she authorized her attorneys to accept less than $25,000 to $80,000 in settlement.

In Cotton States Mut. Ins. Co. v. Fields, 106 Ga App 740, 128 SE2d 358 (1962), also cited by defendant, the court held that the complaint failed to state a cause of action where it merely alleged that the defendant failed to solicit or make an offer of settlement although requested to do so. The court there stated that no facts were alleged showing that the defendant could have effected a settlement if it had attempted to do so; and that the supposition that if the defendant had made an offer of settlement then possibly the suit could have been settled within the policy limits, was too conjectural and speculative to afford a basis for recovery. The pertinent facts in Cotton States readily distinguish it from the case at bar where the defendant refused to accept an invitation to negotiate, and where it declined to disclose the limits of its coverage.

For the reasons set forth herein this cause is reversed and remanded for a new trial consistent with the views expressed herein.

Reversed and remanded with directions.

MORAN, P. J. and ABRAHAMSON, J., concur.


author: JUSTICE ABRAHAMSON.

text:
    Arnold N. May Builders, Inc., an Illinois Corporation, Plaintiff-Appellee, v. Elaine Padjen, Defendant-Appellant.
    Gen. No. 65-111.
    Second District.
    April 14, 1966.
    James P. Moore, of Waukegan, for appellant; Hall, Meyer, Fisher, Van Deusen, Holmberg & Snook, of Waukegan, for appellee.
   Opinion by

JUSTICE ABRAHAMSON.

Not to be published in full.


author: MR. JUSTICE DAVIS

text:
    The People of the State of Illinois, Defendant in Error, v. John Mack Brown, Plaintiff in Error.
    Gen. No. 65-120.
    Second District.
    April 14, 1966.

      John T. Perry, of Wheaton, for appellant.
    William V. Hopf, State’s Attorney, and Edward Van de Houten, Jr., Assistant State’s Attorney, both of Wheaton, for appellee.
   MR. JUSTICE DAVIS

delivered the opinion of the court.

The defendant, John Mack Brown, and George Adams were indicted by the grand jury of DuPage County and were charged in three counts, with burglary and larceny. The defendant was tried by a jury, found guilty of burglary, and was sentenced to imprisonment in the penitentiary for five to ten years. He hereby seeks to reverse this judgment and sentence.

The defendant, who was destitute and had known George Adams a short while, spent the night of March 11, 1860, with Adams at his home in Chicago. On Saturday morning, March 12, 1960, they walked Mrs. Adams and her baby to the bus station from whence she and the baby departed to visit relatives. Adams and the defendant then stopped at State and Harrison Streets where Adams sold $14 worth of vouchers for $4, and gave $2 to the defendant. From this point, the testimony of the defendant and Adams conflicts, and a resume of each version will be recited.

The defendant testified that he and Adams ate at the Ritz Hotel at about 2:30 p. m., then went to an employment agency on South Dearborn Street; that it was closed, but the janitor of the building admitted them into the bathroom where they drank some wine until requested to leave; that Adams borrowed a car and driver’s license from his cousin, Joe Smith, for the purpose of going to Harper’s on Kedzie Avenue and 15th Street to get some coal out of an apartment house; that the defendant and Adams then went to a bar and had more to drink; that the defendant then told Adams that he would meet him at Harper’s at about 8:00 p. m.; and that the defendant went to the south side by bus and then came back to Harper’s.

He further testified that he met Adams at a nearby bar about 8:00 p. m.; that Adams asked him to go for a drive; that when he got into the car he observed some boxes; that after driving awhile, they were stopped by a motorcycle police officer who asked them to pull over to the curb for failure to have a vehicle sticker; that when the police officer directed them to pull over, the defendant told Adams, “I ain’t in this mess,” got out of the car and walked away; and that the defendant was apprehended on Wednesday, March 16, 1960, at the parking lot where Joe Smith worked.

Adams testified that he and the defendant borrowed a car from his cousin, Joe Smith, at about 3:00 p. m.; that instead of getting coal, they went to a bar, bought some wine and drank in the car; that he was unemployed and told the defendant that he was going to Addison to find a factory where he had formerly been employed; that they arrived in Addison about 4:00 p. m. and failed to find the factory; and that they then drove around looking for work, but without stopping to make any inquiries concerning a job.

Adams further testified that he drove into a school yard and the defendant got out to look for a janitor to get the address of a restaurant where they could possibly get a weekend job; that the defendant could find no one and then entered the school house and started carrying out articles which he placed in the trunk and back seat of the car; that they then drove back to Chicago where they were stopped by a motorcycle police officer; that the defendant got out of the car and walked away as Adams pulled to the curb; that Adams was directed to follow the officer to the police station, but instead, evaded the officer and went to Joe Smith’s house and related the incident to him; that Smith asked Adams to go to the police station with him, and that they were apprehended while en route to the station.

There is no controversy over the fact that the school house in Addison was burglarized; that numerous items— including three typewriters, a duplicating machine and a projector — of the approximate value of $2,000, were taken, carried away, identified, and later recovered in the Joe Smith car. Adams, an accomplice, testified that the defendant entered the school house, took the items in question from the school and placed them in the car. The defendant denied any connection with the crime and contended that his only knowledge of the stolen property was that he observed it when he entered the car about 8:00 p. m.

The issues in controversy are whether it was proven beyond a reasonable doubt that the defendant participated in the crime charged in the indictment; whether the trial court erred in admitting in evidence certified copies of the record of the defendant’s prior convictions of infamous crimes; and whether the court erred in giving People’s instruction 16, which reads:

“The court instructs you that, where a larceny of goods and chattels is committed, at the time and place a burglary was committed, the possession by any person of such stolen goods and chattels shortly after the crime was committed tends to prove that the property was stolen by the person in whose possession it was found, and also prima facie evidence of a participation in the burglary as well as in the larceny. Those facts themselves, if you believe from the evidence, beyond a reasonable doubt, they are the facts, will authorize a verdict of guilty of burglary, unless the evidence in the case or the surrounding circumstances are such as to raise a reasonable doubt of such guilt.”

The jury indicated by its verdict that it was satisfied beyond a reasonable doubt by the testimony of the accomplice, Adams, as corroborated by other witnesses and exhibits, that the defendant was guilty. It was only on the issue of participation in the crime that Adams’ testimony was without direct corroboration of other witnesses, and was denied by the defendant. Adams did not see the defendant break into and enter the school house, but he did see him carry the items in question to and place them in the car. Other witnesses established the breaking and entering into the school house; that the articles taken were those subsequently found in Smith’s car; and that Adams and the defendant were in said car when it was first stopped by the motorcycle police officer.

We recognize that the testimony of an accomplice is attended by infirmities, which require caution in relying on it alone. Nevertheless, a conviction may be based on such testimony, if it is of such character as to convince the jury beyond a reasonable doubt as to the guilt of the accused. Such considerations go to the weight of the evidence and the credibility of the witnesses. The People v. Hansen, 28 Ill2d 322, 332, 192 NE2d 359 (1963); People v. Nicholson, 55 Ill App2d 361, 368, 204 NE2d 482 (2nd Dist 1965).

The defendant’s testimony was incredible in part: In sum it was that Adams and the defendant spent Friday night, and Saturday morning and afternoon together, eating and drinking, yet about 4:00 p. m., they voluntarily separated briefly and Adams drove to Addison alone, broke into a school house and carried bulky and heavy articles from the building to the car, and then drove back to Chicago to pick up the defendant — his companion; and that when the defendant entered the car after the interim of separation, he saw typewriters, projectors, etc., in the possession of Adams, who, to defendant’s knowledge, had been unemployed and was practically without funds, but the defendant asked no questions concerning Adams’ sudden acquisition of this property. Reasonable men and women, acting as jurors, could hear, yet not believe such testimony.

Another circumstance which the jury may have considered in arriving at its verdict was the defendant’s flight from the car when the police officer directed Adams to park at the curb because of failure to display a vehicle sticker on the car. Absent knowledge of the crime of burglary, there was little or no reason for the defendant to flee since Adams had borrowed the car, as well as the driver’s license. While flight does not raise a legal presumption of guilt, it is a circumstance which may be considered by the jury in connection with all other evidence in the case as tending to prove guilt. The People v. Weber, 401 Ill 584, 603, 83 NE2d 297 (1949).

The jury saw and heard these witnesses and found the defendant guilty beyond a reasonable doubt. Under the circumstances of this case, we cannot say that such degree of proof was lacking. The People v. Todaro, 14 Ill2d 594, 602, 603, 153 NE2d 563 (1958). Also, “a conflict in the evidence does not establish a reasonable doubt, and a jury verdict based on credible and substantial evidence is not rendered reversible by the fact that there was other evidence in the case which might, if believed, have resulted in a different verdict.” People v. Neukom, 16 Ill2d 340, 347,158 NE2d 53 (1959).

When this case was tried in 1960, paragraph 734 of Chapter 38 of Illinois Revised Statutes of 1959 pertinently provided:

“No person shall be disqualified as a witness in any criminal case or proceeding by reason of . . . his having been convicted of any crime; but such interest or conviction may be shown for the purpose of affecting his credibility: Provided, however, that a defendant in any criminal case or proceeding shall only at his own request be deemed a competent witness, and his neglect to testify shall not create any presumption against him, nor shall the court permit any reference or comment to be made to or upon such neglect.”

The defendant also argues that the trial court erred in admitting evidence of his prior convictions of infamous crimes because they were too remote in point of time. In support of this contention he cites People v. Henneman, 323 Ill App 124, 54 NE2d 745 (1st Dist 1944). In Henneman, the court held that it was error to admit into evidence the record of defendant’s conviction 21 years previously, for a crime committed when he was 18 years of age.

Since the date of the opinion in Henneman, the Supreme Court has decided this question adversely to defendant in the case of The People v. Buford, 396 Ill 158, 71 NE2d 340 (1947). At page 162 the court stated:

“It is next contended that the record of prior conviction should not have been introduced because it was too remote in point of time, .... The introduction of such record of conviction for the purpose of affecting the credibility of a witness, or the defendant who has voluntarily testified, is provided for by statute. The statute fixes no limitation as to the time of such previous conviction. (Ill Rev Stats 1945, c 38, par 734, p 1271.) This contention cannot be sustained.”

It is further charged by the defendant that the trial court erred in giving People’s instruction 16 in that the instruction assumes the fact of possession of the articles stolen by the defendant. However, the instruction concluded with a savings clause with reference to such assumption, which provided:

“Those facts themselves, if you believe from the evidence, beyond a reasonable doubt, they are the facts, will authorize a verdict of guilty of burglary, unless the evidence in the case or the surrounding circumstances are such as to raise a reasonable doubt of such guilt.”

While the instruction was not artfully drawn, we believe that when considered in its entirety, it did not assume the controverted fact of possession to be true. We find no reversible error in giving this instruction. Consequently, the judgment and sentence is affirmed.

Judgment affirmed.

MORAN, P. J. and ABRAHAMSON, J., concur.


author: MR. JUSTICE SCHWARTZ

text:
    Gerald Marks, Plaintiff-Appellant, v. Lester Newburger, Defendant-Appellee.
    Gen. No. 50,324.
    First District, Third Division.
    April 14, 1966.

      Chase & Werner and Malato, Stein & Schelthoff, of Chicago (John W. Schelthoff, of counsel), for appellant.
    Clausen, Hirsh, Miller & Gorman, of Chicago, for appellee.
   MR. JUSTICE SCHWARTZ

delivered the opinion of the court.

In an action for personal injuries the court directed a verdict for defendant and judgment was entered thereon. Plaintiff was injured in the course of a ride in a car owned and operated by defendant. The principal issue is whether the plaintiff was a guest at the time he was injured and was therefore required to prove wilful and wanton misconduct in order to make his case under the guest statute. Ill Rev Stats, ch 95%, § 9-201 (1965).

On the morning of February 4, 1959, the defendant was driving the plaintiff and a third person to their common place of employment when a tire went flat. In replacing the tire with a spare, plaintiff assisted the defendant by operating a tripod jack which was placed under the rear bumper. The car began to slip forward off the jack, and defendant testified that in an effort to steady it, he grabbed the door handle and pushed toward the rear. Plaintiff testified that he called to the defendant, “Don’t worry about it; it’s not that far,” and that he remained behind the car. The force exerted by the defendant caused the car to slip back off the jack with the result that the open trunk door struck plaintiff in the forehead.

Plaintiff does not argue that there was proof of wilful and wanton conduct, but rather he contends that he was a passenger for hire and may recover damages for ordinary negligence. Although it is difficult for this court to see in what way the defendant was guilty of even ordinary negligence, we will consider plaintiff’s contention that he was a passenger. Plaintiff’s position is based on a relationship which existed over a period of six to eight months, during which the defendant daily took the plaintiff about fifteen miles to work and the plaintiff reciprocated by taking the defendant to breakfast approximately twice a week and occasionally buying him a tank of gasoline. Both parties agree that the plaintiff spent an average of $16 to $18 per month, but whether this was intended and accepted as a consideration for the services or was a voluntary gift in reciprocity is the question. Plaintiff himself testified that there were no specific arrangements to make any payments for the rides, and when asked on cross-examination, “You did this out of the goodness of your heart as to paying for the gasoline or treating to breakfast ... ?” Plaintiff answered, “Yes.”

It is the lack of an understanding, express or implied, which distinguishes the instant case from those cited by plaintiff. In Dirksmeyer, Admr. v. Barnes, 2 Ill App2d 496, 119 NE2d 813, defendant drove deceased and five other men to and from work each day. All but one of the riders, including the deceased, lived 80 miles from their place of employment, and each paid the driver ten dollars per week for the transportation. The evidence established the regular payment of a stipulated charge, and the court held that under these circumstances, an agreement to provide transportation could be implied. In McNanna v. Gach, 51 Ill App2d 276, 201 NE2d 191, the defendant-driver agreed to take five students to and from school in exchange for a payment of two dollars a week from each rider. In holding that the plaintiff, who was injured when the car was involved in an accident, was a passenger for hire, the court quoted from Dirksmeyer, Admr. v. Barnes, supra, as follows (at p 280):

“The arrangement or custom was not for an isolated single or occasional transportation but had been in effect on the above paying basis for more than four months, five days each week. It comprehended continuous transportation to and from work. The amount of the payment, whether by agreement or custom was fixed, certain and substantial in amount, . . .” (Emphasis supplied.)

We live in a time in which many human relationships formerly considered sociable and friendly have been transformed into business expenses for tax and other purposes. But this movement has not gone so far that all relationships involving mutual benefit have lost the wholesome flavor of social amenities. In the instant case there is no showing that the occasional purchases of gasoline and the twice weekly breakfast treats were anything more than neighborly amenities extended in return for favors granted. These were insufficient to transform plaintiff from a guest into a passenger for hire.

Plaintiff argues that the issue of negligence should have been submitted to the jury. Inasmuch as we have decided that plaintiff was a guest at the time of his injury, and as there is no evidence to support the charge of wilful and wanton misconduct, we need not further consider this contention.

The plaintiff’s post-trial motion was couched in very general terms such as: the verdict was contrary to the law governing the case, it was contrary to the manifest weight of the evidence, and the evidence was such as to require submission of the case to the jury. Defendant argues that the very general objections stated in that motion are insufficient to preserve for appeal the specific question raised here concerning the plaintiff’s status at the time of his injury. This court has required compliance with section 68.1 (2) of the Civil Practice Act which provides that “. . . the post-trial motion must contain the points relied upon, particularly specifying the grounds in support thereof and must state the relief desired, ... A party may not urge as error on review of the ruling on his post-trial motion any point, ground, or relief, not specified in the motion.” Handler v. Eckhouse, 45 Ill App2d 382, 195 NE2d 838; Perez v. Baltimore & O. Ry. Co., 24 Ill App2d 204, 164 NE2d 209. There appears to be merit in defendant’s contention, and the fact that we have decided this case on the broader issue should not be regarded as any departure from that rule.

The judgment is affirmed.

Affirmed.

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


author: MR. JUSTICE DEMPSEY

text:
    George H. Anderson, Plaintiff-Appellee, v. Prab Conveyors, Inc., Defendant-Appellant.
    Gen. No. 50,480.
    First District, Third Division.
    April 14, 1966.

      James B. Sloan, of Chicago, for appellant.
    Marshall Patner, of Chicago, for appellee.
   MR. JUSTICE DEMPSEY

delivered the opinion of the court.

The defendant appeals from a summary judgment entered for the plaintiff in his action to recover the commission on a sale made for the defendant.

The defendant, Prab Conveyors, Inc., manufacturers of conveyors and other industrial machinery, and the plaintiff, George H. Anderson, entered into a written contract in January 1958. The Prab company agreed to pay Anderson a graduated commission on sales procured by him (starting with 10% on the first $10,000, 9% on the next $15,000, etc.). He agreed to solicit potential customers within his territory, which included Cook County, and to prosecute all selling leads and inquiries to a final conclusion. The contract provided that it could be terminated with or without cause by either party upon 30 days’ written notice. On October 3, 1960, Prab notified Anderson that it was terminating the contract.

Prior to this notification Anderson had been negotiating for the sale of Prab equipment to the Allis Chalmers Company for use in a new plant being built for that company in Harvey, Illinois, by the H. K. Ferguson Company of Cleveland, Ohio. Prab had submitted a bid for this business and quoted $12,795 for the material it proposed to furnish. The proposal was designated as PC-8048. Prab agreed that Anderson, who had initiated the sales transaction, should follow it up and gave him until December 31,1960, to complete it. In the middle of December 1960 Prab, at the request of Anderson, extended the termination date on this particular account until February 15, 1961, and urged him to make every effort to get the order. In early January 1961, the purchasing agent for the Ferguson Company requested Prab to submit a proposal for additional equipment; Prab did so and quoted a total price of $23,984. The second proposal was numbered PC-8150. After this request was received and the proposal made, Prab wrote Anderson on January 17, 1961, that the new request “confuses our extension on PC-8048” and that it would assume a $500 commission if it received the order.

As the negotiations neared a climax toward the end of January Prab continued to lean upon Anderson, and on January 31st the president of Prab telegraphed him from the company’s home office in Roseville, Michigan, that a meeting had been arranged with the Ferguson purchasing agent for February 1, 1961. The parties met on that day in the Allis Chalmers plant in Harvey; the deal was consummated and the order signed. The order which was for $27,400 specifically incorporated the $23,984 proposal designated as PC-8150. The order also stated that proposal PC-8150 was based on specifications issued by Ferguson in September, October and December, 1960.

While they were in Harvey, Anderson discussed his commission with Peter Ruppe, the president of Prab, and the following day wrote Ruppe telling why he thought he was entitled to the full commission on the $23,984 portion of the purchase. Ruppe replied on February 7, 1961. He stated that Anderson’s contract had come to an end on November 3, 1960, that only certain pending proposals were extended beyond November 3rd, and that other salesmen would have to be considered. Anderson pressed for payment and Ruppe replied on April 3rd. The gist of his reply was that the extensions of Anderson’s contract were only for the purpose of closing the proposal known as PC-8048 and that this proposal was not part of the final Allis Chalmers order. The letter stated that Prab would pay Anderson nothing on the basis of proposal PC-8048.

Anderson’s complaint, as amended, related the above facts and had attached thereto numerous exhibits including his contract with Prab, the Ferguson specifications, the Allis Chalmers purchase order and correspondence and telegrams bearing on his commission and the transaction in question. He requested judgment for $2,258.75. Prab’s answer, sworn to by Ruppe, admitted the accuracy of the exhibits but denied that the contract was extended from time to time and denied that Anderson was entitled to commission in the amount of $2,258.75 or any other amount.

Anderson moved for summary judgment. His motion stated that Prab’s answer raised neither a question of fact nor any basis to deny its obligation to pay the sales commission under the contract as extended. Neither Anderson nor Prab filed affidavits and the motion was considered and granted on the complaint, the exhibits attached thereto and the answer. Judgment was entered against the defendant for $2,258.75.

The purpose of summary judgment procedure is to determine whether there is a genuine issue of material fact. If there is no genuine issue as to any material fact the moving party is entitled to summary judgment as a matter of law. If there is such an issue summary judgment must be denied. The right to a summary judgment must be free from doubt. Ill Rev Stats 1963, c 110, par 57; Zemel v. Chateau Royale Corp., 35 Ill App2d 313, 182 NE2d 383 (1962); Goodwin, Inc. v. Bowers, 24 Ill App2d 158, 164 NE2d 278 (1960).

Anderson’s right to some compensation from Prab is free of all doubt. The pleadings conclusively establish this and the attorney representing Prab in this appeal admitted in oral argument that this is so. Their contract was in effect at the time Anderson contacted the prospective purchaser; the purchaser was located in Anderson’s territory and the equipment was sold and installed in his territory; the contract was extended from the date of its expiration to February 15, 1961, so that he could bring about the sale; the sale was completed within this period; he initiated the sale, furthered it and participated in its development and success. The fact that the Prab proposals were for different amounts and bore different numbers does not defeat his right to cornpensation for the contribution he made to the final sale. How the president of the defendant-company could state under oath that Anderson was not entitled to any commission whatsoever is beyond comprehension.

The amount of the commission is another question. Prab’s answer was woefully deficient in raising factual issues or pleading factual averments. However, it was stated in the final paragraph of the answer, without supporting itemization of any kind, that the sales, engineering, service and follow-up work was performed in two or more different sales territories of the defendant, and that if a commission was due (which was again specifically denied) it would be subject to reduction pursuant to paragraph 5 of the contract.

An examination of paragraph 5 unearths the defense the defendant seems to have been driving at in the final paragraph of its answer. It is there stated that the normal commission to be paid a salesman would be influenced by various factors. Among these are the participation by more than one salesman in a sale, and the inclusion in a sale of articles not manufactured by the Prab company itself — such as motors and speed reducers. If more than one salesman took part in a sale 25% was to be paid to the salesman in whose territory the order was signed, 25 % to the salesman in whose territory the equipment was installed and 50 % to the salesman in whose territory and by whom the engineering and sales work was performed. If more than one salesman was involved in the engineering and sales work, the 50% was to be apportioned according to the amount of work done in obtaining the order. A commission of 5% was to be paid on articles not manufactured by the Prab company.

Although neither of these contract provisions is supported factually in the answer and although no affidavit was filed relating them to the facts of the case, a scrutiny of the complaint and exhibits reveals substantiating data. As to the first, there appears in the complaint and ex-Mbits the name of Gene L. Ruehle, Prab’s representative in Cleveland, the home office of the Ferguson Company. Letters written to Anderson by Prab in November and December 1960 disclose that Ruehle was playing some part in the negotiations with Ferguson and Allis Chalmers. As to the second contractual provision, we find in the letter written by Anderson to Prab the day after the deal was closed in Harvey the suggestion that the full commission was subject to adjustment for a motor and a reducer.

In determining whether summary judgment will lie and if there is a genuine issue of material fact, inferences may be drawn from the facts not in dispute. Peirce v. Conant, 47 Ill App2d 294, 198 NE2d 555 (1964). Reasonable inferences from the above undisputed facts are that Ruehle may be entitled to share in the commission and that the full commission sued for might be further diminished by a lesser fee to be paid on some of the articles sold. We, therefore, conclude from the plaintiff’s own pleadings and the inferences to be drawn from them that the defendant’s answer, despite its frailties, raised issues of fact which made uncertain Anderson’s right to the amount of damages he claimed.

We also conclude from the contract, pleadings and uncontroverted exhibits that, after the proper reduction is made on the sales price for those articles not manufactured by Prab and after the commission on these articles and on the balance of the equipment is correctly computed, Anderson is entitled to 25% of the total commission because the order was signed in his territory; that he is entitled to another 25% because the equipment was installed in his territory and that he has a right to share, at least, in the remaining 50% because of the sales work he performed.

In reference to the division of 50% of the commission, the contract between the parties provides that in the event of a dispute over the apportionment of commissions the company shall serve as arbitrator and that its determination shall be final and conclusive. This provision presupposes that the company will be fair in its decisions. In this case the company has been unfair. Anderson has received nothing and the company’s president has stated under oath that he is owed nothing. If this matter were left up to the company he would get nothing. It would be unconscionable to compel Anderson to again submit his cause to an unfair tribunal and to those whose minds are closed against him. He had to go to court to obtain justice and the court must determine what his damages are.

The judgment of the Circuit Court is affirmed as to liability, reversed as to damages and the case is remanded for the determination of damages in a manner not inconsistent with the views herein expressed.

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

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


text:
    Paul V. Byrne, Jr., Plaintiff-Appellant, v. Loretto Tennes, Jane Doe, Richard Roe, as Trustees of the Thomas Byrne Estate Liquidation Trust, Defendants-Appellees.
    Gen. No. 50,633.
    First District, Third Division.
    April 14, 1966.

      Joseph Keig, Sr., of Chicago, for appellant.
    Quinn, Jacobs & Barry, of Chicago (Alfred P. Bianucci and Francis E. Schlax, of counsel), for Loretto Tennes, as trustee, defendant-appellee.
   MR. JUSTICE SCHWARTZ

delivered the opinion of the court.

In an action for an accounting by a beneficiary of the Thomas Byrne Estate Liquidation Trust (liquidation trust), the court granted the defendant-trustee’s motion for summary judgment. Plaintiff contends that this was improper because the pleadings raised material issues of fact which remained unsettled.

The complaint alleged that the beneficiary’s share of the liquidation trust was “at least $3,800,” and that defendant, the sole surviving trustee, had paid plaintiff only $143.23. In her answer defendant denied the material allegations of the complaint and filed an affirmative verified defense, alleging that she had paid the beneficiary the share to which he was entitled. In support of her position she attached to her answer photocopies of four checks totaling $8,643.23, three signed by defendant, and the fourth, dated August 8, 1957, signed by Thomas A. Byrne who had also been a trustee until his death. These checks were payable to plaintiff, were indorsed to him, and were duly paid.

Defendant filed a motion for summary judgment, accompanied by an affidavit, restating her position that plaintiff had been fully compensated according to the terms of the trust. Plaintiff filed no counteraffidavits in opposition to that motion. He had previously filed two sets of interrogatories which sought information concerning the sale of the trust assets and the distribution of proceeds to the beneficiaries, and in subsequent correspondence between the parties, the defendant responded thereto. When plaintiff continued to express dissatisfaction with the information received, the defendant-trustee wrote him a letter dated January 6, 1965, a copy of which was filed with the trial court, setting forth the background of the formation of the liquidation trust, the distribution of assets, and the income and expenses of the trust since its creation. Included in the statement was a specific account detailing plaintiff’s interest in the trust and the payments made in satisfaction thereof. The court asked the parties to submit additional memoranda, which was done, and upon consideration of the pleadings and documents, granted defendant’s motion for summary judgment.

The facts gleaned from defendant’s documents, which are unrebutted by plaintiff, show that the liquidation trust was created in 1950 by the beneficiaries of an inter vivos trust established in 1929 by Thomas Byrne. Upon the expiration of the earlier trust, the beneficiaries proposed to convert the assets, consisting primarily of real estate, into cash and to distribute the proceeds among themselves. The great bulk of the assets were sold within a year of the formation of the liquidation trust.

Mabel Byrne, an aunt of the plaintiff, owned a one-sixth interest in the proceeds held by the liquidation trust, her share amounting to $179,425.79. At her death in 1955, a distribution and credits for advancements totaled $132,154.49, leaving a balance due her estate of $47,270.80. Plaintiff, a beneficiary under Mabel Byrne’s will, received a one-thirteenth interest in the balance of $3636.23.

During 1957 the plaintiff received from the trustees three checks totaling $3500. According to the trustees’ account this reduced the amount owing to plaintiff to $136.23. In 1963 a check for $143.23 was mailed to plaintiff in final satisfaction of his interest in the liquidation trust. This, in fact, was an overpayment to him of $7, as shown by the trustee’s statement of plaintiff’s interest and equity as of January 1963. That was the check which provided plaintiff with the figure used in his complaint and which was the basis for his conclusion that defendant had wrongfully reduced his share to that amount.

Plaintiff argues that his failure to file a counter-affidavit in opposition to defendant’s motion for summary judgment should not preclude his right to an accounting. That would depend upon the affirmative matters alleged by defendant in her affidavit in support of her motion for summary judgment, and that affidavit stated that plaintiff’s interest had been fully satisfied. Failure to deny the receipt of the funds paid plaintiff by check or to controvert the items set forth in the affidavit or to point out wherein the affidavit was inadequate constitutes an admission that it was correct. Slone v. Morton, 39 Ill App2d 495, 188 NE2d 493; Tuohey v. Yellow Cab Co., 33 Ill App2d 180, 180 NE2d 691.

The documents, accounts and other material submitted to plaintiff and filed with the court set forth in detail the income and expenses of the trust, the transactions of sale consummated and the distribution of proceeds. It was, in fact, the accounting which the plaintiff sought. There was no genuine issue of fact to be tried. The trial court properly allowed the motion of defendant for summary judgment.

The judgment is affirmed.

Affirmed.

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


author: JUSTICE DEMPSEY.

text:
    Dr. John T. Reynolds, et al., Plaintiffs-Appellees, v. Samuel R. Stephens, Defendant-Appellant.
    Gen. No. 50,696.
    First District, Third Division.
    April 14, 1966.
    Levi H. Morris, of Chicago, for appellant; Jerome Goldstick, of Chicago, for appellees.
   Opinion by

JUSTICE DEMPSEY.

Not to be published in full.