author: CORYN, J.

text:
    Henry Kerosec and Genevieve Piwonski, Plaintiffs-Appellants, and Peru Steel Erectors, Inc., etc., Intervening Plaintiff-Appellant, v. Steve Yirga, Defendant-Appellee.
    Gen. No. 66-88.
    Third District.
    October 13, 1967.

      Craig Armstrong, of Ottawa, and Patrick Cawley, of LaSalle, for appellants.
    Peter Ferracuti, of Ottawa, and Louis Oliver, of Peru, for appellee.
   CORYN, J.

This is an appeal by Henry Kerosec, Genevieve Piwonski, and Peru Steel Erectors, Inc., plaintiffs, from an order dismissing a three-count complaint and rendering judgment for defendant, Steve Yirga. The various pleadings disclose that on May 5, 1962, Kerosec, Piwonski, and Yirga entered into a Preorganization Subscription Agreement providing for the formation of an Illinois Corporation to be known as Peru Steel Erectors, Inc. Each party subscribed to a definite number of shares of common stock in the proposed corporation at ten dollars per share, payable at such time “as the board of directors may determine.” On May 9, 1962, the Secretary of State filed the articles of incorporation, and on May 19, 1962, the first meeting of shareholders and first meeting of the board of directors were held. On May 21, 1962, a stock certificate was issued to the defendant for the total number of shares subscribed by him. On October 15, 1964, the Secretary of State dissolved said corporation.

The original complaint, containing Counts I and n, was filed July 1, 1963. Count I of this complaint was brought by Kerosec and Piwonski for the use and benefit of Peru Steel Contractors, Inc., against defendant for failure to pay for the stock subscribed by him and issued by the corporation to him. Count II was brought by said individual plaintiffs against defendant for damages to them allegedly sustained by reason of defendant’s breach of the Preorganization Subscription Agreement. Defendant moved to strike Count I on the ground that the corporation must itself bring suit to enforce a subscription agreement, and moved to strike Count II for the reason that it showed on its face that the alleged stock subscription debt was owed to the corporation and not the individual plaintiffs. On June 9, 1966, the corporation filed a motion to intervene for the purpose of filing a complaint against the defendant, this motion was granted, and Peru Steel Erectors, Inc. filed its complaint, labeled Count III, against defendant, alleging breach of the subscription agreement. On August 24, 1966, the trial court entered an order dismissing, without leave to amend, all three counts of the complaint, and entered judgment for the defendant.

We are of the opinion that the trial court correctly dismissed Counts I and II as we conclude that “The Business Corporation Act,” Ill Rev Stats, c 32, § 157.16, contemplates that after acceptance by the corporation of subscriptions to its shares, any direct action to collect unpaid subscriptions must be brought by the corporation, its receiver or trustee. 13 ILP, Corporations, §§ 103, 105.

The trial court dismissed Count III for the stated reason that the intervening plaintiff, Peru Erectors, Inc., was no longer in existence, having been dissolved by action of the Secretary of State. Ill Rev Stats, c 32, § 157.-94, states, in part, that “[T]he dissolution of a corporation ... by the issuance of a certificate of dissolution by the Secretary of State . . . shall not take away or impair any remedy available to . . . such corporation . . . for any right or claim existing . . . prior to such dissolution if action ... is commenced within two years after the date of such dissolution. Any such action . . . by . . . the corporation may be prosecuted ... by the corporation in its corporate name.” The record here clearly shows that Count III is an action by a dissolved corporation for an alleged debt, that is, the unpaid amount owed by defendant for stock subscribed in plaintiff corporation, and that this claim by said corporation against the defendant existed prior to plaintiff’s dissolution, and that action was brought thereon within two years of the date of dissolution. The trial court, then, was in error in ruling that this action did not survive the dissolution of plaintiff corporation.

Defendant further argues that the provisions of the Preorganization Subscription Agreement provide, in substance, that the subscriptions shall be payable on call of the board of directors of plaintiff corporation, and that “there is no allegation in any pleadings in the case at bar that the board of directors ever made a demand or call on the defendant to pay the amount called for in the subscription agreement.” Paragraph 6 of Count III, and Exhibit C attached thereto, allege that said board of directors, at its first meeting on May 19, 1962, adopted a resolution calling for the full payment forthwith of all stock subscriptions. These allegations, we think, are sufficient to meet the standards of the Civil Practice Act. See Ill Rev Stats, c 110, § 33.

We, therefore, affirm the action of the Circuit Court of LaSalle County in allowing the motion to dismiss Counts I and II, but reverse that portion of said order allowing the motion to dismiss Count III. This cause is remanded to the trial court with directions to reinstate Count III, and to permit the parties hereto to proceed thereon.

Affirmed in part and reversed in part.

STOUDER, P. J. and ALLOY, J., concur.


source: Caselaw Access Project

author: ALLOY, J. STOUDER, P. J.

license: Public Domain

text:
    Ned Grabavoy, Plaintiff-Appellant, v. William Wilson and William M. Johnson, d/b/a The Spectator, Defendants-Appellees.
    Gen. No. 67-4.
    Third District.
    October 18, 1967.

      John T. McGrath, of Chicago, for appellant.
    Galowich & Galowich, of Joliet, and Moriarty, Rose & Faccenda, of Chicago, for appellees.
   ALLOY, J.

The cause before us originated as an action by Ned Grabavoy as plaintiff-appellant as against William Wilson alleging that he maliciously libeled Grabavoy by issuing a false statement to the press that Grabavoy was indebted for tax liens in excess of $64,000 by means of displaying a document prepared by Chicago Title and Trust Co. which set forth existing unreleased liens shown of record in the Will County Recorder’s Office. In another count of the same complaint, it was alleged that defendant William M. Johnson, as publisher of The Spectator newspaper maliciously libeled Grabavoy by publishing a story and accompanying editorial based on the statement as to delinquent taxes. Motions to dismiss the counts were filed on behalf of defendants and the trial court entered orders dismissing both counts of the complaint filed on behalf of both defendants. The fundamental issue raised on appeal is whether the complaint states a cause of action for libel as against either defendant.

In Count I of the complaint, plaintiff alleges that he was elected as a councilman of Joliet and was also a businessman in operation of ten retail bakery goods stores in Joliet and surrounding areas. He alleges that during the period of approximately five years from October 1960 to October 1965, certain tax liens were filed against his business operation and that during the same period most of said tax liens had been paid and released although through “inadvertence” said releases were not shown of record. The pleadings show that the “inadvertence” consisted of the neglect of plaintiff to have the releases filed as a matter of public record.

The pleadings further disclose that on December 21, 1965, defendant William Wilson, who was also a Joliet councilman, and plaintiff were at a council meeting and that following the meeting the defendant delivered to The Spectator newspaper copies of a certain report of Chicago Title and Trust Co. which set forth a record of liens filed as against plaintiff Grabavoy. The report was obtained without knowledge of plaintiff and the name of the person to whom the title company issued the report was purposely blocked out. It was alleged in the complaint that defendant Wilson knew that plaintiff’s reputation in the community was excellent and that the issuance and publication of the statement and report would defame plaintiff’s reputation, both in business and as a public officeholder, and would cause financial loss to plaintiff in the operation of his business. It is asserted that notwithstanding such knowledge, defendant Wilson maliciously issued the statement and report without making any effort to ascertain its accuracy or correctness. It was then alleged generally that plaintiff was damaged in his reputation in the community and as a public official and that he suffered loss of business profits and that such business was in lesser amount and its profits lower following the issuance of said information.

In the second count of the complaint, the introductory facts were realleged and defendant William M. Johnson, the publisher of the newspaper was alleged to have circulated in the Joliet area on page 1 of his newspaper, information to the effect that defendant Wilson passed out photostats to the press of a report of the Chicago Title and Trust Co. listing “some 28 tax liens against Ned Grabavoy, Southern Fried Donut or West Side Bakery, totaling $64,681.81.” In the same issue of the newspaper, defendant Johnson printed the following editorial on page 4 thereof:

“KITCHEN HEAT
“Harry S. Truman, who was once more or less well known in political circles, once made the statement, Tf you can’t stand the heat, get out of the kitchen.’
“And the heat was on this week as City Councilmen Norman Keck and William Wilson questioned the right of Councilman Ned Grabavoy to deliberate on the dispensing of public tax money when Grabavoy was reported by Keck and Wilson as failing to pay a huge amount of his own taxes.
“While Councilman Grabavoy gave a few cries of anguish and accused his former running-mate, Keck, of being somewhat less than loyal, Grabavoy set the fire under his own chair in the last city election when he accused Kalph Smith and William Wilson of practically everything short of outright theft of the door knobs off the city hall.
“If he guessed that Wilson and Smith . . . and Keck . . . would forgive and forget, he couldn’t have been more wrong. And when these men documented Grabavoy’s reported failure to pay some $64,000 in state, federal and local taxes, he could be sure this matter would be made public.
“There are quite possibly mitigating circumstances. It is quite easy for a businessman to suffer reverses. Certainly Grabavoy must be in business difficulty if he has failed to pay nearly 30 separate tax liens stretching from Oct. 17,1960 to Oct. 14,1965.
“But under most circumstances it would seem that a businessman in such a position would seek to put all of his time into getting his business problems cleared up . . . simply by increasing his income and paying off his taxes. It is not clear how Grabavoy figured to straighten his bakery business problems while diverting days and weeks of his time to city problems on the token salary of $1,000 per year. On the contrary it would appear from the tax record produced by Councilman Wilson, that Grabavoy’s tax situation is getting progressively worse with each passing month.
“Aside from the obvious political implications, it would seem that Keck and Wilson have a point in insisting that any elected official pay his taxes in full, particularly when those taxes help pay his own salary and help run the City of Joliet.
“Personally, Ned Grabavoy has always appeared to us over the years as a good father, family man and civic-minded citizen. It would seem that while that image is still reasonably intact that his best move would be to step down from the Council, clear up his business and tax problems, and then return at a later date with a clean slate.”

The complaint of plaintiff further alleges that the statements in said story were untrue and that the publication was maliciously designed to represent plaintiff as a tax evader, and further alleged that as a direct result of the publication, plaintiff was damaged in his reputation in the community and as a public official and suffered loss of business and business profits by reason of reduction in business following said publication.

The record shows that on December 21, 1965, during a regular meeting of the Joliet City Council, defendant Wilson and other city councilmen questioned the right of plaintiff Grabavoy to sit on the City Council when he was indebted to the city for delinquent taxes. Plaintiff acknowledges that the report of Chicago Title and Trust Co. accurately reflected the numbers of liens filed and the amount of the liens. Plaintiff Grabavoy asserts that he had in fact paid off some of the liens and was only indebted at the time of the newspaper publication in the sum of $16,000 for various tax liens and that plaintiff had “inadvertently” neglected to have released the other liens as a matter of public record.

The trial court in determining the motions to strike and dismiss the complaint filed by defendants pointed out that both defendant Wilson and plaintiff Grabavoy, as fellow members of the City Council, were public officeholders and their actions were subject to fair comment by any citizen or by any newspaper. The trial court also noted that there is no statutory provision or other precedent which imposes an obligation on anyone to make inquiry as to whether or not the liens referred to have been paid, but that the law provides the manner in which this notice to the world of the release of liens may be shown by filing the releases of record. The court observed that on the basis of the record it was admitted that plaintiff did not file his releases and, by his own failure, he permitted the record to indicate that he was indebted for all of the taxes referred to. The court thereby concluded that there was no duty on the part of either of the defendants to inquire of plaintiff as to whether or not he owed the money and that neither of the defendants exceeded the bounds of “fair comment” or made any false statement as to liens of record.

The court also pointed out that under the Ill Rev Stats, c 24, article 3-4-15 (at 2) it is provided:

“No person shall be eligible to the office of aider-man: (2) if he is in arrears in the payment of any tax or other indebtedness due to the city; ”

# The court observed that indebtedness of taxes to the city by a public official is a matter of public interest and that comment thereon is a privilege protected by the First and Fourteenth Amendments to the Constitution of the United States. The court thereupon dismissed the complaint as to both defendants.

On appeal in this court, it is the contention of plaintiff that the motion to dismiss filed by both defendants admits publication, falsity and malice; that the question of truth of an alleged libel is for the trier of fact; that fair comment and criticism cannot be predicated on unfair or false statements of fact and under the circumstances the charges required investigation; that the charges were libelous per se and that the complaint alleged special damage.

While the major portion of what we have to say will apply to the defendant Johnson and the publication in the newspaper, the same basic principles will likewise apply to the motion to dismiss filed by defendant William Wilson. A motion to dismiss admits only facts which are well pleaded but does not admit conclusions of law or conclusions of fact unsupported by allegations of specific facts upon which the conclusions are based (Pierce v. Carpentier, 20 Ill2d 526, 531, 169 NE 2d 747). The complaint discloses that the Chicago Title and Trust Co. report listing the various liens was not false but simply asserted that Grabavoy had paid a substantial part of the indebtedness and had failed to file releases as heretofore indicated. So far as the public records are concerned, the report is accurate and the assertion that the news item was false was not supported by any specific facts in the complaint so that the motion to dismiss did not admit the conclusions as to falsity (Washington v. Courtesy Motor Sales, Inc., 48 Ill App2d 380, 199 NE2d 263; Nechanicky v. Morgan Park Federal Savings & Loan Ass’n of Cicero, 32 Ill App2d 444, 178 NE2d 197).

Similarly, there is no admission by the motions to dismiss of malice since there were no facts alleged from which malice could be implied or presumed. The simple allegation that the publication was made with malice does not operate as an admission of malice when tested by the motion to dismiss (Wade v. Sterling Gazette Co., 56 Ill App2d 101, 205 NE2d 44).

On the record, there is no factual issue as to the report of Chicago Title and Trust Co. in the case before us. Consequently, there is no issue for a trier of fact, since the complaint indicates that the recorded information as to liens was correctly disclosed in the case before us. The complaint indicates that the report of Chicago Title and Trust Co. was correct and even that there was, in fact, still a remaining indebtedness after the payments made by plaintiff for which he neglected to file releases of lien, in the sum of $16,000. The existence of the indebtedness itself would constitute a challenge to the right of plaintiff to sit in the City Council in Joliet under the provisions of the statute (1965 Ill Rev Stats, c 24, § 3-4-15, § 3-14-1 and § 5-2-10). Under the precedent of Ogren v. Rockford Star Printing Co., 288 Ill 405, 123 NE 587, and other similar cases, the publication of accurate information would constitute an absolute defense to the charge of libel.

In the cause before us, also, the publication which was made by the newspaper was not based upon any unfair or false statements of fact. As indicated in the case of Ogren v. Rockford Star Printing Co., supra, at page 417:

“When anyone becomes a candidate for public office, conferred by the election of the people, he is considered as putting his character in issue, so far as it may respect his fitness and qualifications for office, and everyone may freely comment on his conduct and actions. His acts may be canvassed and his conduct boldly censured.”

The publication complained of did not contain matters which were libelous per se. As we had indicated in Whitby v. Associates Discount Corp., 59 Ill App2d 337, at 340, 207 NE2d 482, words which give rise to a cause of action for a slander “if falsely communicated” include those imputing inability to perform or want of integrity in the discharge of duties of office or employment and those prejudicing a particular party in his profession or trade. The same rules are applicable to libel as in the cases of slander (Mitchell v. Peoria Journal-Star, Inc., 76 Ill App2d 154, at 159, 221 NE2d 516).

The publisher of the newspaper was not required to exhaustively investigate each news item. In the case before us, such investigation (unless a direct inquiry was made of plaintiff) would not have been of any value. As stated in John v. Tribune Co., 24 Ill2d 437, at 442, 181 NE2d 105, where the language in an article published is read as a whole and the words are given in their natural and obvious meaning, such words, allegedly libelous, that are capable of being read innocently must be so read and declared nonactionable as a matter of law. This innocent construction rule has been approved and underscored in other Illinois cases (Hambric v. Field Enterprises, 46 Ill App2d 355, 358, 196 NE 2d 489; and cases cited). Under the “innocent construction rule” since there was no knowledge of the release of liens the complaint also failed to state a cause of action.

The most significant recent case in the field of libel is New York Times v. Sullivan, 376 US 254, 11 L Ed2d 686, 84 S Ct 710, in which the Supreme Court of the United States reversed without remandment a judgment for $500,000 rendered against the New York Times for a publication of an advertisement which contained 10 or 15 misstatements of fact. The court so concluded, even though the evidence disclosed that the Times had in its own files information which would show the falsity of the allegations in the advertisement and had failed to search its own file. The court stated (11 L Ed2d 706) that a rule which would place the burden of proving the defense of truth on defendant does not mean that only false speech would be deterred. It was pointed out that even the court’s accepting this defense as an adequate safeguard would have recognized the difficulties of adducing legal proofs that the alleged libel was true in all of its factual particulars. The court stated “under such a rule, would be critics of official conduct may be deterred from voicing their criticism, even though it is believed to be true and even though it is in fact true, because of doubt whether it can be proved in court or fear of the expense of having to do so. They tend to make only statements which ‘steer far wider of the unlawful zone’ . . . The rule thus dampens the vigor and limits the variety of public debate. It is inconsistent with the First and Fourteenth Amendments.”

The New York Times case clearly established the right of a publisher to comment on the acts of a public official. The court emphasized that “the interests of the public here outweighs the interest of the . . . individual . . . Importance to the state and to society of such discussions is so vast, and the advantages derived are so great, that they more than counterbalance the inconvenience of private persons whose conduct may be involved, and occasional injury to reputation of individuals must yield to the public welfare, although at times such injury may be great. The public benefit from publicity is so great, and the chance of injury to private character so small, that such discussion must be privileged. The Supreme Court concluded that “the constitutional guarantees require ... a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with ‘actual malice’ — that is, with knowledge that it was false or with reckless disregard of whether it was false or not.” The Illinois courts have reiterated this principle (Proesel v. Myers Pub. Co., 48 Ill App2d 402, 199 NE2d 73; Lundstrom v. Winnebago Newspaper, Inc., 58 Ill App 33, 206 NE2d 525).

While many of the observations which we have made apply not only to defendant Johnson, as publisher, but also to the motion to dismiss of defendant Wilson, we note that all that was specifically alleged was that Wilson delivered the Chicago Title and Trust Co. report which, as we have indicated, was an accurate report of the record as to liens. There was nothing in the action of Wilson, as indicated by the precedents cited in the course of this opinion and as is clear from the facts which, on the record made in this cause, would justify the maintenance of plaintiff’s action against him. The lien report was not libelous per se and no special damages were alleged with particularity so as to justify the maintenance of the action. In Hambric v. Field Enterprises, 46 Ill App2d 355, 357, 196 NE2d 489, the court held that allegations (of the plaintiff’s good name, reputation and business were damaged and that respectable clientele to the business were driven away) were descriptive of general damages only and that special damages must be alleged with particularity. To the same effect is Segall v. Lindsay-Schaub Newspapers, 68 Ill App2d 209, at 214, 215 NE2d 295.

We must, therefore, conclude that the action of the trial court in dismissing the complaint as to both defendants William Wilson and William M. Johnson, d/b/a The Spectator, was proper and should be affirmed.

Affirmed.

CORYN, J., concurs.

Special Concurring Opinion

STOUDER, P. J.

I concur in the result reáched in the foregoing opinion but not entirely with the reasoning employed therein.

I especially disagree with the heavy reliance upon New York Times v. Sullivan, 376 US 254, 11 L Ed2d 686, 84 S Ct 710, as support for the implied proposition that the freedom of the press to comment on public affairs and about public personages can only be achieved, protected or promoted without regard to responsibility for such comments. To me there can be no freedom without responsibility. The New York Times case does not stand for this proposition. That opinion was written in the light of the exigencies of the social ills of our times and much of the opinion as expressed must be considered dicta. The Court in the Times case concluded that there was nothing in the advertisement nor in the evidence offered at the trial from which it could be reasonably inferred that the advertisement referred to the Plaintiff.

Similarly, in the instant case, the opinion can be predicated upon the factual circumstance that it was Plaintiff’s own conduct which resulted in the false information in the editorial. In basing the majority opinion on the malice or lack thereof, of Defendant, it goes much further than is necessary.


author: GOLDENHERSH, J.

text:
    Dinn Oil Company, a Corporation, Plaintiff-Appellant, v. The Hanover Insurance Company, a Corporation, and New York Underwriters Insurance Company, an Insurance Corporation, Defendants-Appellees.
    Gen. No. 67-19.
    Fifth District.
    October 19, 1967.
    Rehearing denied November 16, 1967.

      Don R. Lucas, of West Frankfort, and Robert S. Hill, of Benton, for appellant.
    Fowler & Novick, of Marion, for appellee Hanover Insurance Company, and Franklin & Garrison, of Marion (Norbert Garrison, of counsel), for appellee New York Underwriters Insurance Company.
   GOLDENHERSH, J.

Plaintiff, Dinn Oil Company, a corporation, appeals from the judgment of the Circuit Court of Franklin County dismissing plaintiff’s suit against the defendants, The Hanover Insurance Company, hereafter referred to as “Hanover” and New York Underwriters Insurance Company, hereafter referred to as “Underwriters,” and for costs.

Plaintiff’s second amended complaint is in three counts. In the count directed against Hanover, plaintiff alleges that defendant is an insurance corporation doing business in Illinois, that a broker (also a defendant but not a party to the appeal) agreed to obtain certain insurance for plaintiff, including collision and comprehensive coverage, on a described tractor and trailer, that defendant, through its agent (also named as a defendant but not a party to this appeal) entered into an oral agreement to provide, for a period of 30 days, coverage similar to that provided in a policy then in force with another insurance company, a copy of which policy is attached to the complaint, that the agreement was “ratified” on two occasions by the same agent, the insured vehicles were involved in a collision and were destroyed, that upon being advised of the collision and destruction of the vehicles, defendant, Hanover, orally denied liability, and continues to refuse to pay plaintiff’s claim.

In its count directed against Underwriters, plaintiff alleges issuance of a policy providing collision coverage for vehicles owned by plaintiff, including newly acquired vehicles, provided plaintiff notified defendant within 30 days of receiving delivery of such newly acquired vehicles, the acquisition of the new vehicles and the giving of notice to defendant, the destruction of the vehicles in a collision, and defendant, Underwriters, continued refusal to pay the claim.

Defendant, Hanover, moved to dismiss as to it, and in its motion states that subsequent to the collision plaintiff made a claim against the party whose truck collided with plaintiff’s vehicles, settled the claim and executed a release reciting payment to it of $4,000, that “if there was a policy of insurance between plaintiff and this defendant” it contained the following provision:

“In the event of any payment under this policy, the company shall be subrogated to all the insured’s rights of recovery therefor against any person or organization and the insured shall execute and deliver instruments and papers and do whatever else is necessary to secure such rights. The insured shall do nothing after loss to prejudice such rights.”,

that plaintiff, by executing the release violated the above provision and is precluded from recovering from this defendant.

The motion is supported by affidavit of defendant’s counsel, and a copy of the release is attached.

Defendant, Underwriters, moved to dismiss the count directed against it, setting up the same release, and substantially the same defense.

Plaintiff moved for leave to file a proposed amendment as to each count. With respect to Hanover, it alleged that having denied that any policy of insurance was in force, defendant waived any defense based upon alleged breach of the terms of the policy.

With respect to Underwriters, it alleged that having denied liability on the ground that the damaged vehicles were not covered by its policy, defendant is estopped from asserting any defense based upon an alleged violation of the policy. The record does not show any ruling on the motion for leave to amend.

The release upon which defendants rely recites that plaintiff, in consideration of the payment to it of $4,000, releases the persons therein named from any and all claims arising out of the occurrence described. It contains the following statement:

“I declare, represent and agree that the Dinn Oil Company, Incorporated has presented a claim for their property damage to the Hanover Insurance Company under the collision coverage of an insurance policy with that company and that that company has denied that there was such coverage in effect at the time of the described accident.”

The trial court allowed defendants’ motions, entered judgment dismissing the cause as to them and for costs, made the findings required by section 50 (2) of the Civil Practice Act (c 110, 50(2), Ill Rev Stats 1965) and this appeal followed.

Plaintiff contends (a) that an insurer who denies liability under a policy of insurance, may not thereafter, in an action based upon that policy, rely upon the defense that the insured’s release of a claim against a third party is a violation of the terms of the policy, (b) that in the absence of proof that the third party was in fact liable, and that the instrument served to bar the insurer’s right to recover, the court erred in dismissing the cause, (c) that the release given the third party who was informed of the insurer’s subrogation rights did not bar the insured’s subrogation rights.

Defendant, Underwriters, states its contentions simply:

“Coverage has been and is admitted and payment denied because of a breach of the subrogation provision of the policy.”

Defendant Hanover’s contentions, although more numerous, insofar as pertinent to this opinion, are stated as follows:

“From the whole record before the court in this case it appears that whether there ever was a policy of insurance between plaintiff and Hanover is a controverted issue.
“Accordingly, if, as contended by plaintiff, there was a parol contract of insurance between it and Hanover, that contract incorporated the subrogation clause hereinabove set forth, and, under the undisputed facts now before the court, plaintiff has breached that clause.”

Defendants state that their motions are filed in accordance with section 48 of the Civil Practice Act (c 110, § 48, Ill Rev Stats 1965). Section 48 authorizes the filing of motions seeking dismissal, or other relief, on certain specified grounds, and in paragraph (i), on the ground “That the claim or demand asserted against defendant is barred by other affirmative matter avoiding the legal effect of or defeating the claim or demand.”

Section 48(3) provides:

“If, upon the hearing of the motion, the opposite party presents affidavits or other proof denying the facts alleged or establishing facts obviating the grounds of defect, the court may hear and determine the same and may grant or deny the motion. If a material and genuine disputed question of fact is raised the court may decide the motion upon the affidavits and evidence offered by the parties, or may deny the motion without prejudice to the right to raise the subject matter of the motion by answer and shall so deny it if the action is one at law and a jury demand has been filed by the opposite party in apt time.”

Except for facts controverted in the manner provided in section 48(3) a motion to dismiss admits all facts well pleaded. Contrary to defendant Hanover’s contention, “whether there ever was a policy of insurance” is not a controverted issue; it is alleged in the amended complaint, and for the purposes of the motion, admitted. Also, for the purposes of the motion, defendant, Hanover, has admitted that upon plaintiff’s making a claim under the policy, it denied liability.

Although the count directed against Underwriters contains no specific allegation of its denial of liability, the amendment which plaintiff sought to make alleges such denial.

Plaintiff does not controvert the defendants’ allegations that it executed the release, and the issue presented is, therefore, whether, subsequent to a denial of liability on the part of the defendants, plaintiff’s execution of the release serves to bar plaintiff’s claims under the policies.

The Civil Practice Act provides that pleadings shall be liberally construed with a view to doing substantial justice between the parties. C 110, 33(3), Ill Rev Stats 1965. Section 4 of the Civil Practice Act provides that the Act shall be liberally construed to the end that controversies may be speedily and finally determined according to the rights of the parties. (C 110, § 4, Ill Rev Stats 1965). Section 46 of the Civil Practice Act, which provides for amendment of pleadings, is to be liberally construed “to the end that the controversy may be decided upon its facts and its merits and in furtherance of justice.” Cain v. New York Cent. R. Co., 35 Ill App2d 333, at page 338,182 NE2d 910.

Applying these rules of liberal construction, a cause of action should not be dismissed on the pleadings unless it appears that no set of facts can be proved which will entitle the pleader to relief, and then only if it is apparent that even after amendment, if leave to amend is sought, no cause of action can be stated. Olin Mathieson Chemical Corp. v. J. J. Wuellner & Sons, Inc., 72 Ill App2d 488, 218 NE2d 823; Davis v. Hoeffken Bros., Inc., 60 Ill App2d 139, 208 NE2d 370.

The parties have not cited, nor has this court found, any decisions of the appellate courts of Illinois which decide the precise issue here presented. However, in what we deem to be an analogous situation, it has been held that an insurer who breaches the portions of an insurance contract inuring to the benefit of the insured cannot insist that the insured be bound by the provisions which inure to the benefit of the insurer. Sims v. Illinois Nat. Cas. Co. of Springfield, Illinois, 43 Ill App2d 184, 193 NE2d 123.

Applying this holding to the facts as here admitted, we hold that defendants, having denied liability, may not now invoke the execution of the release as a defense to plaintiff’s suit on the policies, and plaintiff’s recovery of a portion of the amount claimed from a third party, and the execution of a release releasing that third party, would not relieve defendants of liability under their respective policies.

Bernardini v. Home & Automobile Ins. Co., 64 Ill App2d 465, 212 NE2d 499, and Damhesel v. Hardware Dealers Mut. Fire Ins. Co., 60 Ill App2d 279, 209 NE2d 876, relied upon by defendants, are not controlling here because neither case involves a denial of liability by the insurer. Trichelle v. Sherman & Ellis, Inc., 259 Ill App 346, cited by defendant, Hanover, is an excellent example of the evils sought to be obviated by enactment of the Civil Practice Act.

For the reasons set forth, we hold that the trial court erred in dismissing plaintiff’s cause of action.

We do not consider plaintiff’s remaining contentions for the reason that although the facts alleged by plaintiff in its amended complaint, and by defendants in their motions and affidavits, are admitted for the purposes of the motions, they present no other issue for determination until evidence is offered. Under the pleadings, the admitted execution of the release did not bar plaintiff’s action, and as the Supreme Court said in Mahin v. Baltis, 34 Ill2d 413, at page 421, 216 NE2d 132, “Factual and legal issues that may thereafter arise are not now presented for decision.”

The judgment of the Circuit Court of Franklin County is reversed and the cause remanded with directions to vacate the judgment of dismissal, and for further proceedings consistent with this opinion.

Judgment reversed and cause remanded with directions.

EBERSPACHER and MORAN, JJ., concur.


author: MORAN, P. J.

text:
    Helen Poindexter, Plaintiff-Appellee, v. Norman Willis, Defendant-Appellant.
    Gen. No. 67-28.
    Fifth District.
    October 23, 1967.

      Armbruster & Diaz, of Alton (Ross Armbruster, of counsel), for appellant.
    Green and Hoagland, of Alton (James K. Almeter, of counsel), for appellee.
   MORAN, P. J.

Defendant appeals from a judgment of the Circuit Court of Madison County, Illinois, rendered pursuant to the Illinois Paternity Act, chapter 106%, section 51-66, which found defendant to be the father of plaintiff’s child and ordered him to pay for its support and maintenance, and to pay for certain medical expenses incurred in the birth of said child.

Plaintiff filed a complaint against the defendant in the Circuit Court of Madison County, Illinois, alleging that she was a resident of Madison County, Illinois; that she was the mother and defendant the father of a child born out of wedlock on July 22, 1964, as a result of her being seduced by the defendant on several occasions in Champaign, Illinois; that although the defendant was a resident of the State of Ohio, he had subjected himself to the jurisdiction of the courts of Illinois by committing tortious acts within the meaning of Ill Rev Stats, c 110, § 17(1) (b) and was therefore subject to personal service outside the State of Illinois pursuant to Ill Rev Stats, c 110, § 16.

Personal service was made on the defendant in the State of Ohio pursuant to chapter 110, section 16. Defendant filed a motion challenging the trial court’s jurisdiction over his person on the ground that he was not amenable to service in Ohio since he was not a resident of the State of Illinois and since the complaint did not charge him with committing a tortious act in the State of Illinois within the meaning of chapter 110, section 17 (1) (b). After the denial of his motion he filed an answer denying the allegations of the complaint and also renewing his objection to the trial court’s jurisdiction over his person.

Defendant did not appear at the trial. Plaintiff testified to several acts of intercourse between herself and defendant while both were attending school at the University of Illinois; that she became pregnant and went home to Alton, Illinois, where the baby was born; that when she became pregnant she wrote to the defendant, but he offered her no help.

The trial judge found the issues in favor of the plaintiff and ordered the defendant to pay plaintiff the sum of $1,460 for the reasonable expenses incurred in the birth and also ordered him to pay the sum of $100 per month for the support and maintenance of said child.

Appellant does not question the validity of chapter 110, sections 16 and 17 of the Illinois Civil Practice Act, but argues only that a proper construction of said Act precludes a valid service of process on him in Ohio because the violation of a duty under the Paternity Act would constitute a tortious act committed in the State of Illinois within the meaning of section 17 (1) (b).

The Illinois Paternity Act of 1957 places a duty on the father of a child born out of wedlock whose paternity is established under the Act to support the child until the child is 18 or is legally adopted to the same extent and in the same manner as a child born in lawful wedlock. He is also liable for the reasonable expense of the mother during her pregnancy, confinement and recovery which liability is established in the paternity proceeding. The suit must be filed by the mother of the child born out of wedlock or a mother who is pregnant with child. The proceedings under the Act are civil in nature and are governed by the provisions of the Illinois Civil Practice Act. (Ill Rev Stats, c 106%, § 51-66.)

Section 16 of the Civil Practice Act provides that summons may be personally served upon any party outside the State; and that as to nonresidents who have submitted to the jurisdiction of our courts, such service has the force and effect of personal service within Illinois. (Ill Rev Stats 1959, c 110, § 16.) Under section 17 (1) (b) a nonresident who, either in person or through an agent, commits a tortious act within this State submits to jurisdiction. (Ill Rev Stats 1959, c 110, § 17.) The question in this case is whether a tortious act was committed here, within the meaning of the statute.

Appellant argues that the statutory action for paternity does not contemplate nor is it based upon the commission of a tortious act; that the sexual intercourse alleged and testified to was consented to by both parties and in such case neither has committed a tort against the other.

Our Supreme Court has not taken so restrictive a view of sections 16 and 17 of the Civil Practice Act as that urged by the appellant. In Nelson v. Miller, 11 Ill2d 878, 143 NE2d 673, the court said: “The foundations of jurisdiction include the interest that a State has in providing redress in its own courts against persons who inflict injuries upon, or otherwise incur obligations to, those within the ambit of the State’s legitimate protective policy. The limits on the exercise of jurisdiction are not ‘mechanical or quantitative.’ ” Id. at 384. “Sections 16 and 17 of the Civil Practice Act reflect a conscious purpose to assert jurisdiction over nonresident defendants to the extent permitted by the due-process clause.” Id. at 389. “The jurisdictional fact, in the language of section 17 (1) (b) is ‘the commission of a tortious act within this State,’ The word ‘tortious’ can, of course, be used to describe conduct that subjects the actor to tort liability. For its own purposes the Restatement so uses it. (Restatement, Torts, Par 6.) It does not follow, however, that the word must have that meaning in a statute that is concerned with jurisdictional limits.” Id. at 391-392. “It is unnecessary to interpret section 17 (1) (b) as conferring jurisdiction only where the defendant’s conduct in the State gives rise to liability to the plaintiff in tort.” Id. at 393. In Gray v. American Radiator & Sanitary Corp., 22 Ill2d 432, 176 NE2d 761, our Supreme Court in discussing chapter 110, section 17(1) (b) said: “In determining legislative intention courts will read words in their ordinary and popularly understood sense. (Cases cited.) We think the intent should be determined less from technicalities of definition than from considerations of general purpose and effect.” Id. at 436.

In accordance with the views expressed by our Supreme Court, we interpret sections 16 and 17 of the Illinois Civil Practice Act to reflect a conscious purpose by the legislature to assert jurisdiction over nonresidents to the extent permitted by the due process clause and therefore hold that the word “tortious” as used in section 17 (1) (b) of said Act is not restricted to the technical definition of a tort, but includes any act committed in this state which involves a breach of duty to another and makes the one committing the act liable to respondent in damages. Therefore, in our opinion, the failure of the father to support an illegitimate child constitutes a tortious act within the meaning of the statute and subjects him to the jurisdiction of the Illinois courts under chapter 110, sections 16 and 17 of the Illinois Civil Practice Act.

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

Judgment affirmed.

GOLDENHERSH and EBERSPACHER, JJ., concur.


author: JUSTICE GOLDENHERSH.

text:
    Melvin A. Hildebrand, Plaintiff-Appellee, v. Catherine E. Hildebrand, Defendant-Appellant.
    Gen. No. 66-121.
    Fifth District.
    October 24, 1967.
    Chapman, Strawn & Kinder, of Granite City, for appellant;
    Emerson Baetz, of Alton, for appellee.
   Opinion by

JUSTICE GOLDENHERSH.

Not to be published in full.


author: EBERSPACHER, J.

text:
    Martha L. Compton, and Forrest C. Leoty, Plaintiffs-Appellees, v. Paul K. Harding Realty Co., a Corporation, and Paul K. Harding and Marguerite Harding, Defendants-Appellants.
    Gen. No. 67-47.
    Fifth District.
    October 24, 1967.

      Henry A. Schwarz, of O’Fallon, for appellant.
    D. W. Costello, of Belleville, for appellees.
   EBERSPACHER, J.

This is an appeal from an interlocutory order entered on the 6th day of April, 1967, denying a motion to vacate and dissolve a temporary injunction previously entered on the 16th day of January 1967.

The action was brought by the plaintiffs, Martha L. Compton and Forrest C. Leoty by a complaint filed September 2, 1966. Paul K. Harding, Marguerite Harding and Paul K. Harding Realty Co., a corporation, were named as defendants. The verified complaint alleged that in May of 1962 the individual plaintiffs and defendants entered into an agreement to form a corporation to be known as the Paul K. Harding Realty Co. at a capitalization of $1,900 divided into 190 shares with the plaintiffs taking 90 shares and the individual defendants taking 100 shares. It was further agreed that each of the parties would deposit $75 for each share of stock owned to be carried as a loan account; that the defendant Paul K. Harding would be employed as manager at a salary of $100 per week until the business showed a profit at which time his salary would be increased to $175 per week; that the profits of the corporation were to be divided pursuant to a scheme set forth in the agreement. The complaint continues by alleging that the defendant corporation was incorporated pursuant to said agreement and that since incorporation defendant, Paul K. Harding, has controlled and directed the defendant corporation without knowledge or consent of the plaintiffs; that there has been no notice of meetings of the stockholders or directors; that the plaintiffs have no knowledge of any meetings of the stockholders or directors; that between the dates May 9, 1962, and April 30, 1966, the defendant corporation has paid the defendant, Paul K. Harding, a salary totalling $52,133.06, far in excess of the aforesaid agreement; that the defendant, Paul K. Harding, has placed numerous relatives on the defendant corporation payroll who are not qualified to do the work; and that the corporation has incurred an indebtedness exceeding $235,000. The last four paragraphs of the complaint allege that the defendants, Paul K. Harding and Marguerite Harding, have conspired to take over the defendant corporation to the exclusion of the plaintiffs and will succeed unless prevented by intervention of the court; that if the individual defendants continue to control the defendant corporation the plaintiffs will be prejudiced and their capital stock will be greatly reduced in value; that it is the intention of the defendants to repudiate the aforesaid agreement and procure control of the defendant corporation to the detriment of the plaintiffs; and that unless a receiver is appointed to conduct the business of the defendant corporation and the individual defendants are enjoined from holding director meetings and conducting the affairs of the defendant corporation that the “conduct (of the defendants) will wreck the affairs of the defendant corporation, to the great damage of plaintiffs . . .”

The relief sought in the prayer was as follows:

a. a temporary injunction restraining the individual defendants from exercising any authority over the defendant corporation.

b. a receiver be appointed to take charge of the affairs of the defendant corporation.

c. an accounting.

d. that the individual defendants be enjoined from transferring any of the assets of the defendant corporation and

e. that the defendant corporation be dissolved.

The complaint was verified by one of the plaintiffs.

On October 5, 1966, the defendants filed their answer which also contained affirmative defenses. The answer admitted the allegations pertaining to the contents of the agreement and the incorporation of the defendant corporation but denied the material allegations of the complaint. The affirmative defense alleged that the indebtedness of the defendant corporation was the result of a real estate mortgage on properties owned by the corporation in which the defendant, Paul K. Harding, personally signed as guarantor and that a temporary injunction causing cessation of corporate business would cause irreparable damage to the defendant, Paul K. Harding, by reason of foreclosure proceedings and actions against him personally for deficiencies.

On October 19, 1966, the plaintiffs filed a motion to strike the answer and affirmative defenses for failure to comply with Supreme Court Rules in regard to service of pleadings. It appears from the record that there has been no ruling upon this motion.

Thereafter, on December 7, 1966, plaintiffs filed a motion for temporary injunction and for the appointment of a receiver. The motion was without notice to the defendants.

On January 16, 1967, the court entered an order for the issuance of an injunction enjoining the individual defendants from exercising authority over the defendant corporation and from transferring any of its assets and from holding any shareholder meetings. The order further recited that the injunction writ be issued without bond, and that it be issued immediately and without notice.

On February 24, 1967, the defendants filed a motion to vacate the temporary injunction. The motion alleged failure of notice, failure to post bond, irreparable damage to the defendants by the issuance of the temporary injunction, that the temporary injunction was not justified in light of all the pleadings and that a temporary injunction enjoining the continuation of corporate business would not preserve the status quo. The order denying this motion was not entered until the 6th day of April, 1967.

These pleadings constitute the entire record. The court heard no testimony. This appeal was perfected by the defendants and submitted to us on the brief and abstract of the defendants. The plaintiffs have not filed a brief.

Ordinarily, a court will issue a temporary injunction where it appears that irreparable harm might be done in the event that the status quo is not maintained pending the disposition of a lawsuit. It is generally employed only in matters of emergency and then only with considerable caution by the trial court. Triangle Sign Co. v. Randolph & State Property, Inc., 16 Ill App2d 21, 29, 30, 147 NE2d 451 (1958). The application for a temporary injunction must specify the facts that require the unusual relief sought. Phelan v. Wright, 54 Ill App2d 178, 181, 203 NE2d 587 (1964); Hope v. Hope, 350 Ill App 190, 194, 112 NE2d 495 (1953). It must allege that irreparable harm will result if the status quo is impaired. McFetridge v. First Commercial Bank, 28 Ill App2d 512, 524, 171 NE2d 791 (1961). The application should be verified. Phelan v. Wright, supra; County of DuPage v. Robinette, 77 Ill App2d 167, 170, 221 NE2d 769 (1966).

In addition to these requirements, the Injunction Act, chapter 69, Ill Rev Stats 1965, provides that a bond be given before an injunction may issue upon such penalty, conditions and securities as required by the court. A bond may not be required where, for good cause shown, the court is of the opinion that the injunction ought to be granted without bond. However, it is necessary that the excuse of the bond for good cause be justified by facts evident in the record. Town of Cicero v. Weilander, 85 Ill App2d 456, 469, 183 NE2d 40 (1962); Grossman v. Grossman, 304 Ill App 507, 513, 26 NE2d 678 (1940); County of DuPage v. Robinette, supra.

In the instant case no facts were presented to indicate that an emergency existed or that irreparable harm would result if an injunction did not issue. All of the material allegations contained in the complaint were controverted by the answer filed by the defendants. Moreover the affirmative defense filed by defendants alleged that the defendant, Paul K. Harding, would suffer irreparable harm if the injunction were to issue. It is difficult for us to perceive how the court could resolve this controversy upon the pleadings alone. Certainly testimony is required under such circumstances. It is not the purpose of a temporary injunction to decide controverted facts or the merits of the case. Lonergan v. Crucible Steel Co. of America, 37 Ill2d 599, 229 NE2d 536; H. K. H. Development Corp. v. Metropolitan Sanitary Dist., 47 Ill App2d 46, 196 NE2d 494.

At no place in the complaint nor in the motion for temporary injunction is there a request for the issuance of the injunction without bond. Although the order for temporary injunction does state that good cause is shown for the issuance of the writ without bond there is nothing in the present state of the pleadings to justify such a finding.

Also in the case at bar the temporary injunction was issued without notice to the defendants. Commenting on such procedure the court in Miollis v. Schneider, 77 Ill App2d 420, 222 NE2d 715 (1966) stated as follows:

“The Law does not favor granting injunctions without notice and, since injunction is an extraordinary remedy, an injunction without notice is most drastic and should only issue under extreme circumstances. Streamwood Home Builders, Inc. v. Brolin, 25 Ill App2d 39, 43, 165 NE2d 531 (1960) ; Kelrick v. Koplin, 19 Ill App2d 301, 153 NE2d 481 (1958). In Streamwood, supra, in considering, the situations in which temporary injunction may properly issue without notice, the court stated at pages 43 and 44:
“ ‘. . . The circumstances countenanced by the courts have been in very restricted areas, such as where the facts of the case, or the history of the parties, disclosed that the giving of notice would result in accelerating the very act sought to be enjoined, or where the act to be enjoined was either taking place or would be undertaken or completed in the time required for notice. A. Daigger & Co. v. Kraft, 281 Ill App 548; Mitchell v. Mitchell, 10 Ill App2d 437; Atkinson Trust & Sav. Bank v. DeRoo, 332 Ill App 251; 21 ILP, Injunctions, See 123, et seq.
“ ‘Notice to an adversary is elemental in our system of justice. Our courts of review have insisted upon chancery courts scrupulously observing the fundamental right of a party to be informed of the injunction proposed against him so that he may be present, if he wishes, to defend himself. Skarpinski v. Veterans of Foreign Wars of United States, 343 Ill App 271; Goldberg v. Laughlin, 137 Ill App 283.’
“The primary purpose of notice of application for temporary injunction is to afford a defendant an opportunity to show that an injunction should not issue. Hoagland v. Bibb, 12 Ill App2d 298, 300, 139 NE2d 417 (1957) ; Schmidt v. Modern Woodmen of America, 261 Ill App 276, 283 (1931). ‘To test the necessity for issuance of an interlocutory injunction without notice, the court must ask whether, in the time required to procure the defendant’s appearance, the defendant could and would do that which would seriously obstruct the power of the court to deal justly and effectively with the issue in dispute. An interlocutory injunction must stand or fall on the pleadings as they existed at the time the order was entered.’ Schaefer v. Stephens-Adamson Mfg. Co., 21 ILP, Injunctions § 124.”

In the case at bar, the court entered the order granting the writ after the defendants had appeared and filed their answer. We also note that the complaint was filed September 2, 1966, and the motion for temporary injunction was not filed until December 7, 1966, and granted on January 16, 1967. There is nothing in the record to indicate a change of position during the period. As far as the record is concerned the only thing that transpired during this period is that the defendants filed their answer on October 9, 1966, and the plaintiffs filed a motion to strike the answer on December 7, 1966. There has been no ruling on the motion to strike and, as stated before, the answer denies the material allegations of the complaint and includes an affirmative defense containing an allegation that the issuance of a temporary injunction which caused cessation of the corporate business would cause irreparable damage to the defendant, Paul K. Harding.

Under these circumstances, we must hold that the temporary injunction of January 16, 1967, was improvidently issued. The order directing the issuance of the temporary injunction is reversed and the cause remanded to the trial court for further proceedings.

Reversed and remanded.

MORAN and GOLDENHERSH, JJ., concur.


author: MR. JUSTICE MORAN

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Sotirios T. Manikas, Defendant-Appellant.
    Gen. No. 67-11M.
    Second District.
    October 25, 1967.

      Klein, Thorpe, Kasson and Jenkins, of Chicago (C. Kasson, of counsel), for appellant.
    William V. Hopf, State’s Attorney of DuPage County, of Wheaton, and Kevin P. Connelly, Assistant State’s Attorney, for appellee.
   MR. JUSTICE MORAN

delivered the opinion of the court.

The defendant was charged with driving a vehicle while his license was revoked for which the penalty is a mandatory minimum imprisonment of seven days and a maximum sentence of one year “and there may be imposed in addition thereto a fine of not more than $1,000.” (Ill Rev Stats 1965, c 95½, § 6-BOB (a).) He was further charged with speeding. Upon a plea of guilty to both charges before a magistrate, he was sentenced to 60 days in the county jail under the offense of driving while his license was revoked. It is from this judgment alone that he appeals.

The defendant claims that his plea of guilty was invalid because, (1) he was not advised of his right to counsel, (2) he was not advised of his right to remain silent, and (3) the admonition given by the court as to the consequence of his plea was improper.

On October 25, 1966, the date of hearing, the defendant appeared without counsel. He had previously entered a plea of not guilty and waived trial by jury. On this date the State moved to nolle prosequi a third charge lodged against the defendant and thereafter the following colloquy between the magistrate and the defendant took place:

“The Court: That leaves us with two charges then: One charge of driving while license revoked and the other charge of speeding 80 miles an hour in a 65 mile an hour zone.
“Mr. Manikas, do you have an attorney to represent you or do you wish to represent yourself?
“Mr. Manikas: I am here myself.
“The Court: You have waived trial by jury and entered pleas of not guilty to both of these charges ?
“Mr. Manikas: Not guilty. I told him I was driving with a permit on that day, and I drove out of the city.
“The Court: Did you plead not guilty ?
“Mr. Manikas: I didn’t say nothing.
“The Court: Do you want to plead not guilty and have the case proved by the State?
“Mr. Manikas: Well, actually I was driving. I was speeding and I was driving on—
“The Court: At the time you were driving did you have a revoked license or suspended license?
“Mr. Manikas: Yes; but I have a permit to drive in the city but not outside the city.
“The Court: Were you speeding 80 Miles per hour in a 65 mile an hour zone ?
“Mr. Manikas: (No response.)
“The Court: Were you speeding?
“Mr. Manikas: Yes.
“The Court: Do you want to change your plea from not guilty to guilty?
“Mr. Manikas: All the time from the beginning I didn’t say I was not guilty. I have a permit — you know, I can drive in the city. My license was revoked for—
“The Court: On the charge of driving with license revoked, do you wish to change your plea of not guilty to guilty; or do you want to stay with your plea of not guilty?
“Mr. Manikas: I say it is guilty. I was driving in places I was not supposed to drive.
“The Court: Let the record show that the defendant is withdrawing his plea of not guilty and pleading guilty to the charge.
“Now, Mr. Manikas, before I accept your plea, I must advise you that you can go to jail from 7 days to one year and be fined up to $1,000. That is the maximum in each case.
“Knowing that, do you still wish to plead guilty to the charge?
“Mr. Manikas: (No response.)
“The Court: That is the maximum penalty if you are found guilty or if you plead guilty.
“Mr. Manikas: Yes.
“The Court: On the speeding charge, you could be fined up to $100. Knowing that, do you still wish to plead guilty to that charge?
“Mr. Manikas: Yes.
“The Court: I will accept a plea of guilty on both charges.”

Thereafter, evidence of aggravation and mitigation was heard resulting in the judgment from which this appeal is taken.

Our Supreme Court in the case of People v. Bush, 32 Ill2d 484, 207 NE2d 446 (1965) summarized to a large extent the present law concerning an accused’s right to counsel when it stated, at pages 487 and 488, the following:

“There can be no question but that one accused of a felony is entitled to the assistance of counsel. (Gideon v. Wainwright, 372 US 335, 9 L ed2d 799, 83 S Ct 792). However, this right may be waived (People v. Robinson, 27 Ill2d 289; People v. Kenzik, 22 Ill2d 567) and the right of a defendant to represent himself when the choice is intelligently made is as fundamental as his right to be represented by counsel. (People v. Sinko, 211112d 23.) A finding of waiver is not lightly to be made (Moore v. Michigan, 355 US 155, 161, 2 L Ed2d 167, 78 S Ct 191, 195) and the record, must show that an accused was offered counsel and that he intelligently and understanding rejected the offer. (Carnley v. Cochran, 369 US 506, 516, 8 L ed2d 70, 82 S Ct 884, 890; Johnson v. Zerbst, 304 US 458, 464, 82 L Ed 1461, 58 S Ct 1019, 1023.) In order that the court maybe sure than an accused fully understands his right to counsel and intentionally relinquishes that right, something more than a routine inquiry by the court is required. (Von Moltke v. Gillies, 332 US 708, 724, 92 L ed 309, 68 S Ct 316, 323.)” (Emphasis added.)

As was stated in Carnley v. Cochran, 369 US 506, 516, 82 S Ct 884, 890 (1962):

“Presuming waiver from a silent record is impermissible. The record must show, or there must be an allegation and evidence which show, that an accused was offered counsel but intelligently and understandingly rejected the offer. Anything less is not a waiver.”

The State argues that the right to the advice of counsel applies only to those criminal cases where the defendant is found to be indigent. From this false premise it then suggests to the court that during the hearing on aggravation and mitigation, which took place after the plea of guilty had been entered, it was disclosed that the defendant was employed and able to engage his own counsel, the proof of the pudding being that he engaged private counsel in this appeal. It then concludes, at page 8 of its brief:

“It is without doubt that in failing to determine the right of the defendant to ‘provided counsel,’ and advise him of this potential right, the court left itself open to error, but the record in the instant case discloses that in fact no error was committed; defendant had no underlying right to ‘provided counsel.’ ”

With this reasoning we cannot agree. The theory of the State that the end justifies the means has no foundation in law. The right to the assistance of counsel as guaranteed by the Sixth Amendment to the United States Constitution and Section 9, Article II of the Illinois Constitution is not based upon whether the defendant is rich or poor. It is a right with which we are all endowed. Through interpretation by the reviewing courts this guarantee has been extended to include the furnishing of counsel to the indigent accused as a supplement to this right. Also, through interpretation by courts of review, a rule of law has evolved which makes it a duty upon the trial court to advise the accused, not only of his right to trial by jury, but also his right to the assistance of counsel.

In the case before us, the magistrate never advised the defendant that he had a right to have counsel present before proceeding. The record discloses that the only time counsel was mentioned was when the court asked . . do you have an attorney to represent you or do you wish to represent yourself?”, to which the defendant replied, “I am here myself.” The question of indigency was never reached. The point is that in all criminal cases where the penalty for the offense imposes confinement, the court must advise the defendant that he has a right to have counsel present before proceeding with the case. It is from this point on that the court makes a determination as to whether the accused desires to employ counsel of his own choice or appoints counsel after finding the accused to be indigent or that the accused has knowingly and intelligently waived counsel.

The issue in the case at bar is not whether the defendant was indigent at the time he entered his plea, as suggested by the State, but did the defendant knowingly and intelligently waive his right to have counsel present. We are of the opinion that he did not. Failure to do so constitutes reversible error. People v. Long, 77 Ill App2d 124, 126, 221 NE2d 507 (1966); People v. Fletcher, 74 Ill App2d 387, 220 NE2d 70 (1966); Gibson v. District of Columbia (DC App), 221 A2d 715 (1966); McDonald v. Moore, 353 F2d 106 (1965). Failure to advise the defendant in the case at bar of his right to the assistance of counsel, rendered the plea of guilty to the offense here under appeal and the judgment of conviction and sentence, constitutionally invalid.

We assume that if there is merit to the remaining two alleged errors claimed by the defendant that the same will not recur upon retrial and it is therefore not necessary to consider them here.

The judgment appealed from is reversed and the cause is remanded for a new arraignment and further proceedings consistent with the views expressed herein.

Reversed and remanded.

DAVIS, P. J. and ABRAHAMSON, J., concur.


author: CREBS, J.

text:
    The People of the State of Illinois on the Relation of Floyd Miller, Plaintiff-Appellee, v. City of Granite City, a Municipal Corporation, Donald Partney, Mayor, Homer Pendleton, City Clerk, Gene Sternberg, et al., Defendants-Appellants.
    Gen. No. 67-35.
    Fifth District.
    October 25, 1967.

      Richard Allen, of Granite City (Dick H. Mudge, Jr., of Edwardsville, of counsel), for appellants.
    Paul L. Pratt, of East Alton, for appellee.
   CREBS, J.

On January 30, 1967, plaintiff filed his Petition for Writ of Mandamus to require the redistricting of the City of Granite City into seven wards instead of the existing eight wards. Summons was issued returnable February 6 and the cause set for hearing February 7. On February 7 the motion to dismiss was argued and denied. After the ruling on the motion defendants requested time to file an answer and agreed to have an answer on file the following day. This request was denied and the court proceeded to hear the case on the merits. Defendants were permitted to make an oral denial of the petition. The hearing was concluded on February 7. On February 9, without notice to defendants, plaintiff was permitted to file an amended prayer for relief and the writ was ordered to issue.

The writ provided that defendants redistrict into seven wards “with approximately the same population in each ward in accordance with the One Vote — One Man guideline established by the Supreme Court of the United States and in accordance with the provisions of Chapter 24, Section 3-4-7 of the Illinois Revised Statutes; that redistricting by said City Council of Granite City, Illinois be made on or before December 1, 1968.” It also provided that the alderman to be elected on April 4, 1967 should be elected at large.

After the issuance of the writ there were some further motions which are not material as regards this appeal. The appeal acted as a supersedeas so the election on April 4, 1967, was not held at large. However, since the writ was issued, the validity of the order for an at large election is still not moot. Daniels v. Cavner, 404 Ill 372, 88 NE2d 823.

“The writ of mandamus is an extraordinary legal remedy and is used to coerce action when it is clearly shown that the law imposes a duty upon the respondent to act in the particular manner requested. The writ only issues to compel a respondent to act when it is his duty to do so without the writ.” Myers v. Sanitary Dist. of Chicago, 386 Ill 542 at 549, 54 NE2d 505. The statute makes no provision for an at large election of aldermen nor was it requested in plaintiff’s prayer for relief, either in its original or amended form. It was error to order an at large election.

Section 3-4-10 of chapter 24 of Illinois Revised Statutes provides: “Whenever an official publication of any national, state, school, or city census shows that any city contains more or less wards than it is entitled to, the city council of the city, by ordinance, shall redistrict the city into as many wards only as the city is entitled. This redistricting shall be completed not less than 60 days before the time fixed for the next succeeding general election for city officers. At this election there shall be elected the number of aldermen to which the city is entitled.”

The legislature apparently concluded that an attempt to redistrict within 60 days of an election would create disorder and confusion. Under the authority of People ex rel. Bruce v. Dunne, 258 Ill 441,101 NE 560, even without the statutory prohibition, a court would not be justified in ordering redistricting by writ of mandamus immediately before an election. At the time of the hearing on the motion it was too late to redistrict before the April 4th election. There was no emergency or reason for precipitous action.

Defendants also contend that it was error to require them to go to trial immediately after their motion to dismiss had been argued and denied. While a considerable discretion must be left to the trial court in matters of pleading, it is a judicial and not an arbitrary discretion. Under the circumstances of this case, where a motion raising substantial questions was filed on time and argued the day following its being filed, we hold the denial of defendants’ request for one day’s time in which to file answer was error.

Defendants object to the evidence in regard to the population of the city. In view of the provisions of chapter 24, section 1-7-2 which provides for judicial notice of the latest federal, state or municipal census, this should not be a problem when the case is retried.

Writ quashed and cause remanded for further proceedings consistent with this opinion.

GOLDENHERSH and EBERSPACHER, JJ., concur.


author: SMITH, J.

text:
    The People of the State of Illinois, Plaintiff-Appellant, v. James Harvey Bryant, Defendant-Appellee.
    Gen. No. 10,855.
    Fourth District.
    November 1, 1967.

      Hugh A. Henry, Jr., State’s Attorney of McLean County, of Bloomington (John F. McNichols, Assistant State’s Attorney, of counsel), for appellant.
    Robert H. Jones, of Peoria, for appellee.
   SMITH, J.

We review two motions, one filed by the defendant entitled “Petition to Suppress Statements” and a responsive motion filed by the State entitled “Motion to Strike Petition to Suppress Statements.” The trial court denied the State’s motion to strike and allowed the defendant’s motion to suppress. The State appeals from each of these orders.

The defendant’s motion is based solely on the proposition that the cautionary safeguards required by Miranda v. Arizona, 384 US 436,16 L Ed2d 694, were not accorded the defendant. The State’s motion to strike asserts that (a) the defendant’s motion is premature, (b) there is no statutory authority for a pretrial motion such as this, and (c) the circumstances surrounding these statements are not within the factual framework of Miranda.

Foil wing a fatal shooting in the City of Bloomington on the night before, the defendant learned that the police were looking for him in connection with it. He and his wife voluntarily went down to the police static.! the next morning and were conducted into a closed room; the incidents of the night before were discussed; the defendant was interrogated; a written statement was taken, and immediately thereafter the defendant was placed under arrest. The statement involved was not before the trial court and of course is not before this court. Both the State’s Attorney and the defendant’s counsel agree that the statement is an exculpatory statement and is in no sense a confession. The State’s contentions that the defendant’s motion to suppress this statement is prematurely filed and that there is no statutory authority for such motion may be discussed together. Our Code of Criminal Procedures purports to cover only pretrial motions to suppress confessions or to suppress physical evidence obtained under illegal search and seizure. If the ground for either of said motions exists and is known to the defendant prior to trial, our statute contemplates that the motion shall be made prior to trial. Ill Rev Stats 1965, c 38, §§ 114-11 and 114-12. The reason for the pretrial motion is aptly stated by the trial judge in his memorandum opinion as follows: “It is common knowledge that the hearing of motions to suppress are frequently time-consuming and to interrupt a trial before a jury and hear such a motion for two or three days, would indeed not make for orderly procedure, and I believe it to be within the discretion of the trial court to so arrange its affairs as to permit the hearing of such motions prior to trial.” See People v. Winn, 324 Ill 428, 155 NE 337, concerning the time-consuming aspects.

Our Code of Criminal Procedures was adopted several years prior to Miranda and the method of raising the questions posed by Miranda was doubtless not within the specific contemplation of the drafting committee. The determination of the admissibility of an in-custody statement may of course be raised if and when it is offered by the State in the trial and the defendant is thus protected. This, however, should not preclude a pretrial determination of the issue if the defendant so elects. Common sense and time-saving trial procedure in criminal cases suggest that it is proper to make a pretrial determination of whether or not any given statement may be appropriately used by the State and the determination of that issue should be made as early in the proceedings as is reasonably possible. Defendant’s motion to suppress was neither premature nor beyond the inherent power of the court.

We turn now to the question as to whether or not the facts in this case are within the framework of Miranda. The statement here taken was taken some 9 months before the decision in Miranda was announced. It is not, therefore, surprising that the format laid down in Miranda was not followed by the police department. There is nothing in this record that suggests the defendant was treated otherwise than courteously and kindly. He voluntarily came into the police station and was taken into a private room, and the door was closed. When asked whether or not he would have permitted the defendant to walk out of there, the police officer replied, “No, I wouldn’t have done that.” Defendant asked to go to the rest room and he was permitted to do so, but was accompanied by an officer who remained with him and returned with him to the room. During the entire interrogation, the defendant’s wife was in the room with him. The trial court found that the defendant was in custody. It is quite apparent that he was “deprived of his freedom by the authorities” in a significant manner within the proscription of Miranda. When the statement was concluded, the defendant was placed under arrest and subsequently indicted in a two-count indictment, with one charging voluntary manslaughter and the other charging involuntary manslaughter in the killing of Howard Walter Price. The Police Department of the City of Bloomington did not engage in any of the abuses which precipitated Miranda. Defendant was advised that he could call an attorney and anything he said could be used against him. He was not advised that he might remain silent nor that an attorney could be present during the interrogation nor that an attorney would be appointed if he couldn’t afford one. The defendant is still awaiting trial and thus Miranda applies. Miranda unequivocally sets forth the guidelines in these words:

. . we hold that when an individual is taken into custody or otherwise deprived of his freedom by the authorities in any significant way and is subjected to questioning, the privilege against self-incrimination is jeopardized. Procedural safeguards must be employed to protect the privilege, and unless other fully effective means are adopted to notify the person of his right of silence and to assure that the exercise of the right will be scrupulously honored, the following measures are required. He must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires. Opportunity to exercise these rights must be afforded to him throughout the interrogation. After such warnings have been given, and such opportunity afforded him, the individual may knowingly and intelligently waive these rights and agree to answer questions or make a statement. But unless and until such warnings and waiver are demonstrated by the prosecution at trial, no evidence obtained as a result of interrogation can be used against him.” 384 US 436, 478, 16 L Ed 694, 726, 86 S Ct 1602.

Miranda unequivocally states that there is no differentiation between an inculpatory and an exculpatory statement. The prosecution concedes that the Miranda warnings were not given and it is thus patent that they could not be knowingly and intelligently waived.

It seems to us that Miranda has gone the full distance. The admissibility of a confession or any other statement is not dependent upon whether it was induced by physical violence, psychological pressures, misrepresentations, promises of leniency, threats, or any other conduct calculated to taint or undermine the exercise of a free will. Freedom from these things no longer ipso facto permits the State to use such statements in evidence against the defendant. More is required. These requirements Miranda has specified. These requirements we must follow. These requirements must be made known to a suspect before any statement arising out of an in-custody interrogation is admissible against him. It is then his choice to exercise his constitutional privilege against self-incrimination or to waive that privilege, if he elects to do so. That choice was not accorded the defendant in this case, albeit unwittingly. Such a rule of criminal procedure in no sense precludes confessions or statements by a defendant in custody when freely, willingly and understandingly made.

Accordingly, the order of the trial court suppressing the statements must be and it is hereby affirmed.

Affirmed.

CRAVEN, P. J. and TRAPP, J., concur.


author: TRAPP, J.

text:
    People of the State of Illinois, Plaintiff-Appellee, v. John R. Cox, Defendant-Appellant.
    Gen. No. 10,870.
    Fourth District.
    November 1, 1967.

      Albert E. Hurt, Public Defender, of Decatur, for appellant.
    Basil G. Greanias, State’s Attorney of Macon County, of Decatur (Franklin E. Dove, Assistant State’s Attorney, of counsel), for appellee.
   TRAPP, J.

Defendant was convicted of burglary by a jury and sentenced to a term of two to ten years. His motion for a new trial was denied. He appeals the conviction.

The defendant had been found guilty by a jury at a prior trial upon the same offense, but such conviction was reversed upon appeal. People v. Cox, 74 Ill App2d 342, 220 NE2d 7.

At this trial the prosecution undertook to prove defendant’s guilt by introducing into the record a portion of the transcript of the testimony of one Vernon Hall at defendant’s prior trial. This was the only evidence connecting the defendant with the offense.

Prosecution’s Exhibit No. 1 offered in evidence was a certified record of certain proceedings in the Circuit Court of LaSalle County, Illinois, consisting of (1) a petition for hospitalization on court order of the said Hall, alleged to be in need of mental treatment, then found at the Illinois Industrial School for Boys, Sheridan, Illinois, (2) an order for examination of Hall by a Commission, (3) a report of the Commission’s examination, (4) a notice of hearing on such petition for hospitalization served on Hall, (5) an order for the hospitalization of Hall as being in need of mental treatment, and (6) a writ for such hospitalization at the Illinois Security Hospital. The several items referred to are prepared on a set of printed forms purporting to be authorized under the Mental Health Code, chapter 91%, § 3-2, and supplied by the Department of Mental Health.

The report of the Commission’s examination found Hall to be immature, impulsive, unable to master hostile, aggressive feelings and liable to act upon slight provocation, so that he was considered dangerous. The diagnosis was an emotionally unstable personality in a brain damaged person. The court ordered mental treatment and immediate hospitalization at the Illinois Security Hospital. This order also provided:

“It is further found and ordered that Vernon Dale Hall is legally incompetent.”

People’s Exhibit No. 2 was the transcript of the testimony of Vernon Hall at the prior trial. Defendant objected to People’s Exhibit No. 1 being admitted in evidence and objected to the admission of People’s Exhibit No. 2 as being hearsay, irrelevant, and prejudicial and denying to defendant the right to cross-examine the witness. Such objections were preserved upon a motion for a new trial. Here, the defendant urges that the admission of such transcript into the evidence violates article II, § 9 of the Illinois Constitution in its provision that the accused shall have the right to meet witnesses face to face.

The latter provision is a constitutional command which regulates specific aspects of judicial procedure and the objections were sufficient to raise the constitutional issue. People v. Nastasio, 19 Ill2d 524, 168 NE 2d 728.

Before the trial court, the prosecution urged that the transcript was admissible as an exception to the hearsay rule which permits the introduction into evidence of testimony at a former trial where the witness is dead, insane or so ill as to preclude travel to the current trial. Cleary, Handbook of Illinois Evidence, 2nd ed, § 17.8; Gard, Illinois Evidence Manual, Rule 161. Authorities upon this theory were argued before the court, and after taking the matter under advisement and reviewing the authorities, the court ruled Exhibit No. 2 admissible.

It was the hypothesis of the prosecution, and the trial court, that the finding of the Circuit Court of LaSalle County, Illinois, that Hall was legally incompetent, made him incompetent as a witness at this trial. It appears that such finding of legal incompetence was equated with insanity for purposes of the so-called hearsay exception cited.

This is not the law in Illinois under the authorities as we find them.

The test of competence to testify as a witness is the capacity to observe, recollect and communicate. People v. Dixon, 22 Ill2d 513, 177 NE2d 224; People v. Lambersky, 410 Ill 451, 102 NE2d 326; Cleary, Handbook of Illinois Evidence, 2nd ed, § 8.2; Guttmacher v. Weifhofen, Psychiatry and The Law, 1952, W. W. Norton & Co.

Sanity is not the test of competence to testify as a witness and an insane person may be acceptable as a witness if he has the several capabilities. People v. Enright, 256 Ill 221, 99 NE 936. Persons adjudicated to be feebleminded may be competent to testify, People v. Lambersky, 410 Ill 451, 102 NE2d 326. An idiot may be a competent witness, Truttmann v. Truttmann, 328 Ill 338, 159 NE 775. In Oswald v. Civil Service Commission, 406 Ill 506, 94 NE2d 311, it was held that the trial court, sitting in administrative review, erred in presuming that witnesses adjudicated to be feebleminded were, as a matter of law, incompetent to testify. See also People v. Nash, 36 Ill2d 275, 222 NE2d 473. In Schneiderman v. Interstate Transit Lines, 394 Ill 569, 69 NE2d 293, plaintiff suffered injuries which affected his powers to speak coherently and his capacity to give consistent, intelligent answers. The Supreme Court held that the Appellate Court erred in concluding that his mental condition made him incompetent as a witness, and in refusing to consider his testimony.

In People v. Enright, 256 Ill 221, 99 NE 936, and People v. Dixon, 22 Ill2d 513, 177 NE2d 224, the Supreme Court speaks of this rule for determining the competency of witnesses as applying in the absence of a statute. From the record it appears that the prosecution argued, and the trial court believed, that the Mental Health Code had changed the rule followed by the Supreme Court.

Our search has not disclosed any statute relating to the competency of witnesses to testify because of defects of intellect or mentality, or by reason of adjudication regarding such defects. Chapter 51 (Ill Rev Stats 1965) relates to the competency of witnesses, but has no reference to mental qualifications. Chapter 3, § 112 (Ill Rev Stats 1965) defines an incompetent as one incapable of managing his person or estate. Such persons have been held competent to testify as witnesses. Oswald v. Civil Service Commission, 406 Ill 506, 94 NE2d 311; Champion v. McCarthy, 228 Ill 87, 81 NE 808.

The Mental Health Code, chapter 91%, (Ill Rev Stats 1965), does not define the term “legally incompetent.” Section 1-8 of the Code defines a “person in need of mental treatment,” as is alleged in this petition, as being any person afflicted with mental illness to such an extent that he requires care, treatment or hospitalization for his own welfare, or the welfare of others. Article Vin of the Code provides procedures for hospitalization for mental treatment by court order. Section 8-13 of this Article provides that hospitalization for mental treatment upon court order is not an adjudication of legal incompetency, and shall not deprive a person of his civil rights, or his rights to enter into contractual relationships and to manage his property. It states that admission or hospitalization under this Act does not create any presumption that such person is incompetent, but that a court ordering an initial hospitalization:

“. . . may consider in addition the question of legal incompetence and may include a specific finding as to the legal competence or incompetence of any person so hospitalized. . . .”

This provision makes no reference to the competency of an individual to testify and is not such a provision as shows legislative intent to alter the Supreme Court rule and standard heretofore discussed. It is, rather, of a nature complementary to proceedings under chapter 3 (Ill Rev Stats 1965), and avoids duplication of proceedings concerning an incompetent’s estate.

This interpretation of chapter 91%, § 8-13 (Ill Rev Stats 1965) is not a determination that the allegations of the petition in this case, i. e., that Hall was in need of mental treatment, or the notice of hearing upon such petition served upon Hall, were sufficient to support the court’s finding that Hall was legally incompetent as to his property or other rights referred to in the statute.

It is for the trial court to determine the competency of the witness to testify under the standards of capacity to observe, recollect and communicate. People v. Enright, 256 Ill 221, 99 NE 936; Schneiderman v. Interstate Transit Lines, 394 Ill 569, 69 NE2d 293. In People v. Dixon, 22 Ill2d 513, 177 NE2d 224, the trial court conducted appropriate preliminary inquiry to ascertain the ability of the witness measured by such standards.

We have found certain criminal cases wherein it was held proper to permit the reading of testimony into the record where such is done under agreement of the defendant. See Gillespie v. People, 176 Ill 238, 52 NE 250, testimony of witnesses for both the prosecution and the defense; People v. Schultz-Knighten, 277 Ill 238, 115 NE 140, an unsworn statement placed in the record of a coroner’s inquest was read into the record by agreement of the parties, and People v. Czajkowski, 342 Ill 144, 173 NE 817. Such authority is limited to instances where there was such an agreement that a waiver of the constitutional right under article n, § 9, existed. The record here contains no waiver of constitutional right by the defendant or his counsel.

In People v. Crump, 5 Ill2d 251, 125 NE2d 615, the court said:

“It is fundamental that both the defendant and the jury should be confronted with the witnesses themselves under oath and have the benefit of both their sworn testimony in chief and under cross-examination.”

See also People v. Nastasio, 19 Ill2d 524, 168 NE2d 728.

The trial court erred in holding that the finding and order of the Circuit Court of LaSalle County made Hall incompetent as a witness, and in admitting into evidence the transcript of testimony of Hall at the prior trial.

The judgment of the trial court is reversed and the cause remanded for a new trial.

Reversed and remanded.

CRAVEN, P. J. and SMITH, J., concur.