text:
    LEONARD MARTIN et al., Plaintiffs-Appellants, v. EDMOND A. SOUCIE, Kankakee County Clerk, et al., Defendants-Appellees.
    Third District
    No. 82—420
    Opinion filed October 12, 1982.

      Edward G. Vogt, of Kankakee, for appellants.
    L. Patrick Power, State’s Attorney, of Kankakee (Andrew M. Raucci, of Kusper & Raucci, Special Assistant State’s Attorney of counsel), for appellees.
   JUSTICE SCOTT

delivered the opinion of the court:

On December 14, 1981, the plaintiffs herein, Leonard Martin and Wes Wiseman, filed suit in the circuit court of Kankakee County-seeking a judicial determination that the apportionment plan and map governing the election of Kankakee County board members, as passed by the Kánkakee County Board on June 29, 1981, failed to comply with statutory requirements set forth in sections 3(b) and 3(c) of “An Act relating to the composition and election of county boards in certain counties” (Ill. Rev. Stat. 1981, ch. 34, pars. 833(b), 833(c)). The relief sought by the plaintiffs was a mandatory injunction compelling (a) an at-large election for county board candidates in 1982, or (b) a court-drawn apportionment plan and map for county board candidates in 1982, or (c) a commission-drawn apportionment plan and map to serve the- same purpose. Named as defendants in the lawsuit were Edmond A. Soucie, Kankakee county clerk, and the County of Kankakee. Following a hearing on the merits of the complaint, the circuit court entered a finding that the seven districts drawn on the disputed map did indeed fail to comport with the statutory requirements of sections 3(b) and 3(c); nevertheless, the circuit court ordered that the relief sought by the plaintiffs was barred by both the principle of laches and the principle of estoppel. From this order the plaintiffs appealed, urging that laches and estoppel do not apply, and the defendants attempted to cross-appeal the finding regarding the map’s legality.

It appears that the plaintiffs first learned of the June 29, 1981, apportionment plan on the very day it was adopted by the Kankakee County Board. Yet, it was nearly six months later, on December 14, 1981, that the instant lawsuit was filed. December 14 was the last day for filing nominating petitions for the March primary, and all .candidates had filed their petitions as candidates in specifically numbered districts. At the time of the hearing in this cause, February 8, 1982, absentee ballots were already being printed for the primary election, and programming of the voting machines had been accomplished. When the circuit court’s decision in this matter was rendered, on February 19, 1982, 16 of the 39 days available to absentee voters in the primary election had already passed. The cost to Kankakee County for reprinting ballots and reprogramming machines would range from $10,000 to $12,000. Clearly, the delay in initiating and prosecuting this lawsuit had resulted in prejudice to the defendants as the electoral process passed the point of reversal, and where such delay is unreasonable, a defense of laches is recognized. (Brandt v. Phipps (1947), 398 Ill. 296, 75 N.E.2d 757; Higgins v. Brunswick Corp. (1979), 76 Ill. App. 3d 273, 395 N.E.2d 81; Matchett v. Rose (1976), 36 Ill. App. 3d 638, 344 N.E.2d 770.) Laches is an appropriate defense when the validity of an election is being challenged. (Thurston v. State Board of Elections (1979), 76 Ill. 2d 385, 392 N.E.2d 1349; People ex rel. Goldberg v. Delaney (1968), 39 Ill. 2d 474, 236 N.E.2d 689.) The circuit court found that the delay of nearly six months in filing suit was not legally justified, and thus was unreasonable. We believe the record supports that finding. In addition, once the suit was filed, no attempt was made to seek temporary relief or a writ of mandamus, procedural avenues which would have afforded an earlier opportunity for hearing. These delays by the plaintiffs in filing and prosecuting the instant lawsuit permitted the 1982 electoral process to become irremediable by passage of time. In light of the delay, we agree with the circuit court that the relief sought by the defendants for the election scheduled for November 2, 1982, is barred by reason of laches.

The circuit court also held that the plaintiffs were barred from the relief prayed for by reason of estoppel. Despite urging in the complaint that the districts established by the June 29, 1981, map were statutorily defective, the plaintiff Martin circulated petitions and became a candidate for nomination in the March 16 primary from District 1 created by the apportionment plan he attacked. Also, the plaintiff Wiseman circulated nominating petitions for candidates seeking nomination from other districts created by the plan. The circuit court reasoned that it was inconsistent to participate in the primary election by filing and assisting in filing nominating petitions while at the same time attacking the legality of the election by prosecuting the lawsuit. The lower court concluded that the plaintiffs, who participated in the election process with full knowledge of its irregularities, were estopped to question those irregularities. Although the circuit court relied on the authority of People ex rel Lewis v. Waite (1873), 70 Ill. 25, Thurston v. State Board of Election, and People ex rel Goldberg v. Delaney in reaching its conclusion, we have determined that certain factual dissimilarities between the cited cases and the case at bar make the estoppel defense inapplicable in the case sub judice; however, the authorities relied on by the plaintiffs are limited to the estoppel issue and do not address, and therefore contradict, our holding in the laches issue.

The defendants attempted to cross-appeal based upon the circuit court’s finding that the apportionment plan and map failed to comply with established statutory criteria. The relevant statute provides that in counties where board members are elected by districts, the county board shall develop an apportionment plan that defines such districts so that each:

“a. Shall be equal in population to each other district;
b. Shall be comprised of contiguous territory, as nearly compact as practicable; and
c. May divide townships or municipalities only when necessary to conform to the population requirement of paragraph a. of this Section.” (Ill. Rev. Stat. 1981, ch. 34, par. 833.)

It is conceded that the seven districts defined by the June 29, 1981, apportionment plan are substantially equal in population. The circuit court found, however, that the districts are not compact, and divide townships and municipalities unnecessarily.

The requirement of compactness is not simply defined. In discussing the issue of compactness, the lower court noted that:

“Illinois courts have historically given a liberal definition to this term. The territory need not be either rectangular or square. People ex rel McLain v. Gardner (1951), 408 Ill. 228, 96 N.E.2d 551. It should be ‘concentrated or close or near to a certain center.’ Husser v. Fouth (1944), 386 Ill. 188, 53 N.E.2d 949; The People v. France (1924), 314 Ill. 51, 145 N.E. 240; The People v. Engle (1924), 313 Ill. 483, 145 N.E. 231; The People v. Emmerson (1924), 313 Ill. 209, 145 N.E. 106. Every reasonable presumption is indulged in favor of validity. People ex rel McLain v. Gardner, supra. Most cases defining the term deal with school districts and hold that compactness depends upon the distance and accessibility of all parts of the district from a ‘center’ or hub which consists of the schoolhouse. Here there is no need for access to a center and the term can be even more liberally construed. Nevertheless, the term ‘compact’, as used in the statute, ought to have some meaning over and above contiguity, under the familiar rule that a statute should be construed, if possible, so that no word is rendered superfluous or meaningless. Joliet Twp. High Sch. Dist. v. Bd. of Trustees (1979), 72 Ill. App. 3d 430, 391 N.E.2d 147.”

We agree that compact districts should be “concentrated or close or near to a certain center” and yet we recognize that this requirement must be liberally construed to accommodate the reality of population density. Nevertheless, districts which are dominated by peninsulas, isthmuses, and promontories, unless necessitated by the overriding requirement of population equality, cannot be called compact except by an expansion of the meaning of that term to such a breadth that it would become virtually meaningless.

In a recent decision where the issue involved the compactness of a legislative district, the supreme court concluded that an elongated district, 125 miles in length, connected by an isthmus just six miles wide, was not “closely united” and therefore not compact. (Schrage v. State Board of Elections (1981), 88 Ill. 2d 87, 430 N.E.2d 483.) In defending the compactness requirement, the high court noted that:

“[w]e have *** a representative form of government. The creation of a representative district which is extremely elongated and not ‘closely united’ significantly impedes vital constituent-representative communication, thus preventing the achievement of a legislative process which is, in fact, representative.” (Sch-rage v. State Board of Elections (1981), 88 Ill. 2d 87, 100, 430 N.E. 2d 483, 488.)

The same rationale applies to representative government at the county level as well as the State level.

The circuit court characterized the June 29, 1981, districts as forming “a wheel type pattern in that all districts extend to or into the population center.” However, as that court noted, “the spokes of the wheel are badly bent,” with the district lines being “winding and tortuous.” The lower court concluded that such geographical contortion was not necessitated by the population patterns of Kankakee County. Rather, it appeared to that court, from exhibits offered by the plaintiffs, that the county is roughly divisible into seven reasonably compact parts of substantially equal population.

The circuit court also concluded that the June 29, 1981, apportionment plan unnecessarily divides townships and municipalities. The plan splits Kankakee Township among four districts, Bourbonnais Township among three districts, and Limestone, Ganeer, Sumner, Momence, Aroma, Pembroke and Manteno Townships between two districts each. The City of Kankakee is split four ways, while the City of Momence and the Village of Bourbonnais are each split two ways. The lower court found that these numerous division of townships and municipalities were not necessary to achieve population balance.

We observe that the question raised by the cross-appeal was based upon a finding by the circuit court. Yet, the lower court order resolved the issues raised by the plaintiffs’ complaint in reliance on the defense of laches. Laches is an affirmative defense to the cause of action set forth in the complaint, whether that cause of action is meritorious or otherwise. Since the findings of the circuit court were beyond the scope of its resolution of the matter, it is arguable whether the question raised by the cross-appeal, i.e., the statutory validity of the apportionment plan and map, is essential to the lower court order and thus a controversy properly before us. Generally, nonessential questions raised on appeal are not well taken and will not be considered by reviewing courts. (Longo v. Board of Trustees (1977), 50 Ill. App. 3d 314, 365 N.E.2d 672.) Nevertheless, the question raised by the cross-appeal was fully briefed by the parties, it was argued orally before the court, and it was accepted by the parties as a well-taken appeal from the circuit court’s findings.

In light of the acquiescence of the parties in presenting the issue of the apportionment plan’s validity, and because the trial court expressly determined that the plan failed to comply with the statute, we conclude that no prejudice would result, and the interests of judicial economy would be served, by our noting our concurrence with the circuit court’s finding.

The plaintiffs sought relief for the 1982 elections. That relief is, as previously stated, barred by laches; however, the affirmative defense of laches is a bar not simply by reason of the passage of time, but in addition by reason of a substantial detriment to defendants’ position resulting from the passage of time. (Brandt v. Phipps (1947), 398 Ill. 296, 75 N.E.2d 757; Higgins v. Brunswick Corp. (1979), 76 Ill. App. 3d 273, 395 N.E.2d 81; Matchett v. Rose (1976), 36 Ill. App. 3d 638, 344 N.E.2d 770.) The detriment to the defendants recited herein applies only to the relief requested for the 1982 election. Having concurred with the finding of the circuit court establishing the apportionment plan’s noncompliance with the statute, we could not countenance any future elections pursuant to that map, elections for which the laches defense is inapplicable. Accordingly, we must remand this cause to the circuit court with directions to enter an order on its finding, with such order precluding the use of the June 29, 1981, apportionment plan and map for all elections held subsequent to November 2, 1982. We do not understand our directions to the circuit court, nor the order entered pursuant thereto, as invalidating the results of next month’s election nor as impairing the authority of the board members therein elected. It is also our direction that upon remand, the circuit court should have all necessary authority to effectuate its order entered consistent with this opinion.

Based on the preceding analysis, and in keeping with the authorities therein cited, we hold that the order of the Kankakee County Circuit Court should be affirmed as to the issue of laches raised by plaintiffs’ appeal and remanded with directions as to other matters raised.

Affirmed in part and remanded with directions.

BARRY, R J., and HEIPLE, J., concur.


source: Caselaw Access Project

author: JUSTICE KASSERMAN JUSTICE HARRISON,

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff and Respondent-Appellee, v. HAROLD M. PARKS, Defendant.—(Patrick J. Prendergast, Petitioner-Appellant.)
    Fifth District
    No. 81-445
    Opinion filed September 29, 1982.
    Rehearing denied November 1, 1982.
    HARRISON, J., dissenting.

      Kenneth D. Rose, of Anna, for appellant.
    Rodney A. Clutts, State’s Attorney, of Jonesboro (Martin N. Ashley, of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE KASSERMAN

delivered the opinion of the court:

Petitioner, Patrick J. Prendergast, appeals from the order of the circuit court of Union County awarding him $750 as his attorney fee for representing the defendant, Harold M. Parks, as appointed counsel. Petitioner requested $2,430, which he claimed was a reasonable amount for attorney fees based on his having spent hours in court and 791A hours out of court in his representation of defendant, both at the rate of $30 per hour.

The defendant was charged on February 21, 1980, in a five-count information with unlawful possession of a controlled substance, cocaine; unlawful possession of a controlled substance, methaqualone; unlawful possession of cannabis; and two counts of unlawful delivery of a controlled substance, cocaine. Due to conflicts which developed in defendant’s first two appointed counsel, petitioner was not appointed until January 8, 1981, after the preliminary hearing and after most of the discovery had been completed. Petitioner filed motions for substitution of judges and a motion to suppress evidence. It does not appear that a hearing was held on the motion to suppress. On July 27, 1981, defendant entered a negotiated plea of guilty to unlawful possession of a controlled substance, methaqualone, and was sentenced to two years’ probation. On July 28, 1981, petitioner filed a verified statement of services.

On August 3, 1981, a hearing was held on petitioner’s motion for attorney fees. The only witness to testify was attorney David Watt. Mr. Watt testified to his extensive experience as an attorney in the field of criminal law. He further testified that he had reviewed petitioner’s file, which contained between five and eight law review articles and five to seven cases from other jurisdictions regarding the defense of necessity. He stated that based on his experience in handling similar issues, he was of the opinion that the time spent was a reasonable amount of time and that the amount submitted was reasonable. Mr. Watt further testified as follows: “[Cjonsidering the case, the charges involved, the issues that were involved, and also to a certain extent, considering the fact that Mr. Prendergast is a young lawyer, that the amount of time that he spent in this case was not only reasonable but in my opinion, was not excessive.” Mr. Watt related that in a criminal case in which he represented a defendant, the special prosecutor was paid $50 an hour plus expenses. Mr. Watt admitted that he has never defended a sale of cocaine charge on the basis of necessity because it is an extremely rare defense. He stated that since the defendant in this case made admissions against interest in a newspaper interview, the defense would need to be creative.

It appears from the record that defendant is suffering from a disease which has severely affected his hips and ability to walk; consequently, the contemplated defense would be that the cannabis and controlled substances were necessary to relieve the pain.

The State did not contest the time spent or the quality of the representation, but it did contest the reasonableness of the fees on the grounds that the time spent in court was minimal and because an excessive amount of time was spent on the defense of necessity.

The trial court considered the law as stated in People v. Johnson (1981), 93 Ill. App. 3d 848, 417 N.E.2d 1062, affirmed (1981), 87 Ill. 2d 98, 429 N.E.2d 497, and stated:

“*** j SUpp0se what constitutes a reasonable fee is determined in each case. The court is not that familiar with the defense of necessity. However, I believe there are only two cases in the state on the subject. Whether or not it was reasonable for Mr. Prendergast to spend that time researching, I didn’t talk with Mr. Parks and I don’t know what the factual situation was. I do think that necessity is a very limited defense as is indicated by the cases in the state of Illinois.
For the record, in this particular case, defendant’s attorney has stated that he was in Court one hour and forty-five minutes. I don’t question that or disagree with it. ***
There is quite a bit of discussion in [the case law] as to what is a reasonable hourly rate. I have no argument that $30.00 is reasonable. It is not the going rate in Union County. The only question that I have is the amount of time consumed in this case by the defendant’s attorney. Eighty hours for research and for conferences, and I am not saying, Mr. Rose, that he didn’t spend eighty hours. I am sure he did or he wouldn’t have filed the verified statement. It is my job to ascertain whether or not that is reasonable in this case. The statute authorizes the payment of a reasonable fee. ***
And, of course, the court is directed to consider all relative circumstances. The circumstances that we have in this case is the total court appearance of approximately one hour. For the record, the attorney for the defendant was not appointed during the preliminary hearing or during the earlier motion stages, and again, we are talking about what is a reasonable fee. I think they say that you should not be unjustly enriched nor unjustly penalized for having to do court appointed work, and that a reasonable fee infers at least some compensation, and I would agree with that. Such fees awarded to appointed counsel must reimburse the attorney for office overhead and expences [sie\ and give him something for his own support. I have no argument with that. It says, do not interpret the statute to require compensation equal to the prevailing market rate in the community, as petitioners suggest, although such a fee is not prohibited and may well constitute an appropriate amount in a given case. I think that what they are trying to say is that the trial judge has wide discretion in what appears to be reasonable in any given case. I was involved in this case from the first appearance to the negotiated plea, so I am familiar with this case. I can’t feel that a fee of $2,430.00 is reasonable in this case, so that gets down now as to what is reasonable, and again, I don’t want to be misinterpreted as saying that I don’t believe that you spent the time on it. You spent the time and I think that you did an excellent job defending the defendant. However, the burden is on me to decide what is reasonable and I can’t justify eighty hours outside the court and one hour in court would be reasonable. [Sic.] ***
I am not again, saying that he did not spend the time and that he did not do an excellent job in defending. The result of the case of two years probation and a fine of $1,000.00 was a very well negotiated plea. I am placed now with the burden of saying what is reasonable. The time spent on jury trials and negotiated pleas, I do not, based on that experience, justify this as being reasonable. I find that $30.00 per hour is reasonable, more than reasonable.
It will be the order of the court that the treasurer pay to Mr. Prendergast, the sum of $750.00 plus expenses. ***”

Petitioner contends that the trial court erred in determining the amount of attorney fees awarded in this case under section 113 — 3(c) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1981, ch. 38, par. 113-3(c)).

On appeal of the appellate court decision relied upon by the trial court, our supreme court has recently delineated the factors to be considered in determining what constitutes “reasonable” compensation for private counsel appointed to represent indigent defendants in People v. Johnson (1981), 87 Ill. 2d 98, 429 N.E.2d 497. The court in Johnson stated:

“The formula for reasonable compensation should be the hourly fee normally charged for comparable trial court services, less an amount adequate to satisfy the pro bono factor. In determining what constitutes a reasonable fee, the trial court must consider a number of factors, including, but not limited to, time spent and services rendered, the attorney’s skill and experience, complexity of the case, overhead costs, and expenses of trial.” (87 Ill. 2d 98, 105-06, 429 N.E.2d 497, 500.)

Thus, the statutory standard to be applied is one of reasonableness. People v. Kinion (1982), 104 Ill. App. 3d 30, 35, 432 N.E.2d 363, 367.

Petitioner urges that the trial court erroneously chose to disregard the testimony of Mr. Watt and declare that petitioner spent too much time on the case. Petitioner suggests that such a finding was improper since the trial court made statements suggesting that it was unfamiliar with the facts of the ease and the law concerning the defense of necessity.

It has long been recognized that the courts are not bound by the opinions of attorneys regarding what constitutes a reasonable fee and must consider their own knowledge of the value of services rendered. (Goldstein v. Handley (1945), 390 Ill. 118, 125-26, 60 N.E.2d 851, 854; People ex rel. Chicago Bar Association v. Gilbert (1914), 263 Ill. 85, 91, 104 N.E. 1082, 1084-85; see also Stocker Hinge Manufacturing Co. v. Darnel Industries, Inc. (1981), 99 Ill. App. 3d 340, 344, 425 N.E.2d 550, 554.) In the instant case, although perhaps not as familiar with the defense as Mr. Watt, who had the opportunity to examine petitioner’s files, the trial court indicated that it had been involved with the case from the time of the first appearance until the negotiated plea and had considered the Illinois case law regarding the defense of necessity. In light of its experience, the trial court concluded that the amount of time spent by petitioner was excessive. Petitioner has perfected this appeal; therefore, we are asked to determine whether this finding was an abuse of discretion. We conclude that it was not.

According to petitioner’s verified statement of services, he spent approximately 36 hours researching the defense of necessity; two hours were attributed to “research on charges”; nine hours were taken to research relevancy, self-incrimination and contempt; over four hours were spent on search and seizure research; IV2 hours were spent researching motions for continuance and substitution of judges; and a number of hours were spent researching discovery matters, “cocaine as a narcotic,” and the defense of diminished capacity. Further, Mr. Watt testified that he took into consideration the fact that petitioner was a “young lawyer” in arriving at his conclusion that the amount of time was reasonable. The evidence suggests that petitioner was a relatively inexperienced attorney who spent a substantial amount of time conducting research which was of necessity aimed at self-education rather than practically related to the representation of his indigent client. Since there is a pro bono factor to be considered (People v. Johnson), a trial court need not find that all time spent in preparation of a case for an indigent defendant must be compensated. We conclude that an inordinate use of time need not be compensable and that the trial court’s decision in the case at bar to reduce the amount of compensable time was not an abuse of discretion.

We first observe that the greater portion of petitioner’s research, particularly the 36 hours spent on the defense of necessity, did not contribute to the ultimate disposition of the defendant’s case. In determining what constitutes a reasonable time for research, the nature of the research and the results achieved should be considered. (See Hofing v. Willis (1967), 83 Ill. App. 2d 384, 390, 227 N.E.2d 797, 800.) Here, petitioner researched a number of matters which were not utilized to defend his client. Petitioner elected to conduct considerable research on a novel defense based upon the defendant’s use of cannabis, cocaine, and methaqualone for treatment of pain. However, this defense based on necessity was never used and was apparently abandoned because it was unlikely to succeed. Although an attorney should be given wide latitude in devising and researching a defense for an indigent defendant, it does not follow that an attorney must be compensated by the county for all time spent pursuing an unlikely defense. The trial court’s determination that petitioner spent an excessive amount of time conducting research in a case which was eventually disposed of through plea bargaining was not an abuse of discretion.

Additionally, it is obvious that the less experience an attorney has, the more time he will be required to expend in conducting legal research. While an attorney, whether experienced or not, should conduct thorough and painstaking research, we cannot say that all research time must be paid for by the county when an attorney is appointed to represent an indigent defendant. In the case at bar, it was reasonable for the trial court to conclude, in view of the fact that petitioner was a “young lawyer,” that a large number of hours of out-of-court time spent by petitioner did not justify compensation at a rate of $30 per hour. We do not mean to suggest that a young or inexperienced attorney would inevitably spend more time than experienced counsel researching any particular case but, rather, that we acknowledge that the experience of the appointed counsel is one of the factors to be considered in determining what is a reasonable amount of research time.

For the foregoing reasons, the judgment of the circuit court of Union County is affirmed.

Affirmed.

JONES, J., concurs.

JUSTICE HARRISON,

dissenting:

I dissent.

The ultimate issue in this case is whether 80 hours was an unreasonable amount of time for petitioner to spend in the preparation of his client’s defense. No one doubts that he actually spent that much time. Mr. Prendergast kept meticulous records and achieved an excellent result on his client’s behalf. Further, no one questions the hourly fee of $30, the rate charged when taking into account the pro bono factor.

At the hearing, petitioner presented an expert who testified that, in his opinion, the case posed complex issues. He stated that the amount of time spent was appropriate and the resulting $2,430 fee was entirely reasonable. The majority, however, concludes that petitioner spent an inordinate amount of time conducting research and that, therefore, the trial court’s decision to reduce the amount of compensable time from 80 hours to 25 hours was not an abuse of discretion.

The majority seems to base its conclusion on two factors: (1) the nature of the research in relation to the result obtained, and (2) the fact that petitioner was a “young lawyer.” While admitting that the defense of necessity is rare and the issues with which petitioner was confronted were complex, the majority reasoned that the bulk of petitioner’s research on necessity did nothing to contribute to the ultimate disposition of the case because petitioner eventually arranged a negotiated plea for his client. This reasoning fails to take into account the leverage which petitioner had during the plea negotiations with the State due to theories gleaned from his research. Rather than presume that the research did not contribute to the outcome of the case, I think it just as likely that' the young attorney’s pursuit of a creative defense facilitated the bargaining position of his client and made it possible for him to take a more favorable stance during negotiations.

Next, the majority states:

“In the case at bar, it was reasonable for the trial court to conclude, in view of the fact that petitioner was a “young lawyer,” that a large number of the hours of out-of-court time spent by petitioner did not justify compensation at a rate of $30 per hour.”

I disagree. I do not feel that counsel should be penalized for being a “young lawyer.” It seems only fair to issue an award commensurate with the time and energy actually devoted to the case by able counsel.

For the foregoing reasons, the trial court’s award of $750 was totally inadequate. I would apply the same standard as the majority (People v. Johnson (1981), 87 Ill. 2d 98, 105-06, 429 N.E.2d 497), and award Mr. Prendergast the full amount of attorney fees which he has requested.


author: JUSTICE HARRISON

text:
    ILLINOIS MASONIC CHILDREN’S HOME, Plaintiff-Appellant, v. MICHAEL JOSEPH FLYNN et al., Defendants-Appellees.
    Fifth District
    No. 81—557
    Opinion filed October 7, 1982.

      William L. Turner, of Shelbyville, Edward L. Choate, of Carterville, and James C. Craven, of Springfield (Alexandra de Saint Phalle, of counsel), for appellant.
    James W. Sanders and Associates, of Marion, for appellees.
   JUSTICE HARRISON

delivered the opinion of the court:

The plaintiff, Illinois Masonic Children’s Home, an Illinois not-for-profit corporation, appeals from an order of the circuit court of Williamson County dismissing count I of a complaint which sought enforcement of a joint and mutual will. Pursuant to Supreme Court Rule 304 (73 Ill. 2d R. 304), the trial court expressly found that no just reason existed for delaying appeal. The sole issue presented for our review is whether the trial court erred in ruling that this action, brought by a third-party beneficiary of a joint and mutual will, was barred by the six-month statute of limitations for bringing claims against the estate. (Ill. Rev. Stat. 1979, ch. 110½, par. 18 — 12.) We reverse and remand.

The complaint alleged the following facts which, for the purposes of the motion to dismiss, are to be taken as true if well pleaded. (Bio-Medical Laboratories, Inc. v. Trainor (1977), 68 Ill. 2d 540, 545, 370 N.E.2d 223.) On September 19, 1942, John L. Delaney and Esther C. Delaney, husband and wife, executed a joint and mutual will. John L. Delaney died in 1964, and the joint and mutual will was filed in the office of the circuit clerk of Williamson County on September 11, 1964. The joint and mutual will was executed pursuant to a contract between the Delaneys. Subsequent to John L. Delaney’s death Esther C. Delaney executed a will dated April 22, 1966, a codicil thereto dated April 22, 1971, and another codicil dated July 7, 1975, which purported to dispose of her property contrary to the provisions of the joint and mutual will. Thereafter Esther C. Delaney died, and the 1966 will and both codicils were admitted to probate in the circuit court of Williamson County on August 12, 1980.

The joint and mutual will provided, inter alia, that “[t]he one of us surviving the other is to hold all the property and estate, real, personal and mixed, during his or her lifetime, the use and income thereof to be enjoyed by such survivor as he or she shall deem best, during the remainder of the life of such survivor, it being our mutual will and desire that the entire estate that we both now possess shall be kept intact until the death of the one of us surviving. *** It is our joint and several will and desire that upon the death of the survivor of us THE MASONIC ORPHANAGE OF ILLINOIS, at LaGrange, Illinois, shall inherit all our property and estates, real, personal and mixed, of which the survivor of us shall die seized or possessed, to be owned, used and enjoyed, absolutely, by the said MASONIC ORPHANAGE OF ILLINOIS, without limitation or restriction whatsoever ***.” The Illinois Masonic Children’s Home is the same entity as the Masonic Orphanage of Illinois and was the sole residual beneficiary of the joint and mutual will.

Count I of the plaintiff’s complaint requested an order declaring that the plaintiff is entitled to receive all of the assets of the estate, that the executor holds all the property of the estate as trustee for the benefit of the plaintiff and that the legatees under the 1966 will and codicils thereto have no interest in the assets of the estate. The defendants moved to dismiss count I of the complaint, pursuant to section 48 of the Illinois Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 48), on the ground that the count sought to enforce a purported contract and therefore was barred as a claim against the estate by the six-month statute of limitations. (See Ill. Rev. Stat. 1979, ch. 110½, par. 18 — 12.) The trial court thereafter entered an order dismissing count I of the complaint.

The plaintiff contends that the trial court erred in ruling this action was barred by the six month limitation period applicable to claims against the estate in that this is a proceeding which contests the title to all the assets of the estate rather than a proceeding to enforce a claim against the decedent herself. The statute on which defendant relies is section 18 — 12 of the Probate Act of 1975. This statute provides that “[a]ll claims against the estate of the decedent, except expenses of administration and surviving spouse’s or child’s award, not filed with the representative or the court within 6 months after the entry of the original order directing issuance of letters of office are barred as to all of the decedent’s estate ***.” (Ill. Rev. Stat. 1979, ch. 110½, par. 18 — 12.) The issue is whether an action, by the third-party beneficiary of a joint and mutual will, to contest the title to the assets which the executor of the estate seeks to inventory and distribute pursuant to a subsequent will is a claim against the estate of a decedent within the meaning of section 18 — 12.

“A proceeding which places in issue a decedent’s title to specific assets is not considered to be a ‘claim’ in the context of probate law. It is not subject to the statute limiting the time in which to file claims.” (Taylor v. Continental Illinois National Bank & Trust Co. (1975), 26 Ill. App. 3d 610, 612, 325 N.E.2d 444.) Taylor involved an inter vivos assignment of a debt which, “having passed to petitioner during decedent’s lifetime, became the property of petitioner and could not pass to decedent’s estate.” (26 Ill. App. 3d 610, 612.) The court in Taylor concluded that “[t]he executor had no lawful right to said share, and its attempt to ‘inventory’ it was a nullity. Since petitioner was not claiming any asset of the estate, *** there can be no issue with respect to the timely filing of a claim.” (26 Ill. App. 3d 610, 612.) A joint and mutual will which, by its terms, creates a life estate in the survivor in all of their property does not empower the life tenant to convey the fee to property in the absence of an express grant of such authority in the will under which the life estate was created. (First United Presbyterian Church v. Christenson (1976), 64 Ill. 2d 491, 499, 356 N.E.2d 532.) “Property in which a decedent has only a life estate cannot go to his personal representatives as assets.” (Corney v. Corney (1930), 257 Ill. App. 13, 19.) Therefore, we hold that where a joint and mutual will creates only a life estate in the survivor, without power to convey the fee, the life tenant is without power to dispose of the property by will. Thus, applying the Taylor rationale to the case sub judice, count I of the complaint raises only a question of title and not a claim against the estate. “The remainderman of a fund which has passed into the hands of the life tenant’s executor is not a creditor of the life tenant’s estate within the provisions of the probate law, relating to actions by creditors of deceased persons.” (Corney v. Corney (1930), 257 Ill. App. 13, 19.) Because section 18 — 12 of the Probate Act of 1975 bars claims against the estate after six months, we find the statute inapplicable to the instant case.

Although Ilg v. Continental Illinois National Bank & Trust Co. (1968), 94 Ill. App. 2d 143, 236 N.E.2d 316, cited by defendant, announces a different rule (94 Ill. App. 2d 143, 150), we find the Ilg holding to be questionable in light of the rationale of In re Estate of Toigo (1969), 107 Ill. App. 2d 395, 246 N.E.2d 68. In Toigo, the decedent was alleged to have made a completed inter vivos gift of stock to her son but the stock had been included in the inventory of the estate. The court reasoned:

“If we were to apply the argument made by the Estate that this petition is a claim against the estate and, therefore, barred since not filed within the claim period, it seems to us that absurd results could occur. For example, suppose by mistake an asset which was never owned by the decedent was inventoried in her estate and the claim period passed. No one would say that the mere passage of time, and in this instance a relatively short time, somehow passed title to the decedent, and therefore, the true owner could not have his property back due to the lapse of time.” (107 Ill. App. 2d 395, 404.)

Accordingly, we decline to follow the Ilg case. Defendant also relies on In re Estate of Garawany (1980), 80 Ill. App. 3d 401, 399 N.E.2d 1024. We find Garawany to be distinguishable. In Garawany, a claim for medical services rendered to the decedent was sought to be paid out of a “medical insurance policy [which] was inventoriable property subject to the six months’ period for filing claims ***.” (Emphasis added.) 80 Ill. App. 3d 401, 404.

Because the six-month period of limitation does not apply to the instant action, the circuit court erred in dismissing count I of the complaint. We therefore reverse and remand this cause to the circuit court of Williamson County.

Reversed and remanded.

EARNS, P. J., and EASSERMAN, J., concur.


author: JUSTICE WILSON

text:
      In re ESTATE OF AUGUSTINA GAGLIONE.-(Margaret G. Ruffo, Appellant and Cross-Appellee, v. Sam Gaglione et al., Appellees and Cross-Appellants.)
    First District (5th Division)
    Nos. 80—3175, 81—1220 cons.
    Opinion filed August 6, 1982.
    Modified opinion filed upon denial of rehearing November 5, 1982.

      Dennis M. O’Brien, of Chicago, for appellant.
    Robert R. Wagener, of Morton Grove, for appellee Mary G. Wagener.
    Mack P. Manning, of Chicago, for appellees Sam Gaglione, Michael Gaglione, and Josephine DeStefano.
   JUSTICE WILSON

delivered the modified opinion of the court on denial of Petition for Rehearing:

This is a consolidated appeal from an order of the trial court denying plaintiff’s motion to vacate the summary judgment order of November 13, 1980, and from an order which denied her claim as not being timely filed. The issues raised by plaintiff for review are: (1) The trial court erred in admitting the 1959 joint will to probate and (2) if the trial court’s action was correct in admitting the 1959 joint will to probate, then it was error not to extend the time for filing claims. The pertinent facts follow.

Nicolo Gaglione and his wife Augustina executed a “Joint and Mutual Last Will and Testament” dated June 27, 1959. Nicolo died on June 17, 1967, and the 1959 joint will was filed with the probate division of the circuit court; however, it was not offered for probate as Nicolo’s last will and testament.

Augustina executed another last will and testament on August 28, 1973, which instrument revoked and annulled all former wills and codicils made by her. She died on January 1, 1980.

Sam Gaglione petitioned to probate the 1959 joint will as Augustina’s valid last will and requested the appointment of Michael Gaglione and Josephine DeStefano, as co-executors. The court admitted the 1959 joint will on March 31, 1980, and letters of office were to issue to the named co-executors. Notice was sent by the court clerk advising all interested heirs of their rights under the Probate Act to require formal proof of the will pursuant to section 6 — 21 (Ill. Rev. Stat. 1979, ch. 110½, par. 6-21).

On May 9, 1980, plaintiff, daughter of decedent, and a legatee and devisee under both the 1959 joint will and the 1973 will, filed her petition asking that letters of office issue to the named co-executors in the 1973 will, that the letters of office issued under the 1959 joint will be revoked and that the 1959 joint will be denied probate. The hearing on the petition was continued to May 12, 1980, at which time a formal petition to probate the 1973 will was filed in open court. Plaintiff’s request for a formal hearing on the 1959 joint will was continued generally and the hearing for probate of the 1973 will was set for May 16, 1980. On that date, the court stated that the most “recent will” would be admitted, and that letters of office previously issued (under the 1959 joint will) would be cancelled when the 1973 will was properly admitted. The hearing on the petition to admit the 1973 will was continued to June 9, 1980.

Plaintiff filed her petition to probate the 1973 will and to have letters of administration with the will annexed issue to her on June 9, 1980. The named co-executors of the 1973 will, Donald Panarese and Josephine DeStefano, declined to act. Objections to plaintiff’s appointment as administrator with the will annexed were filed by DeStefano, Sam Gaglione and Mary Wagener. These objections were rejected and plaintiff was appointed administrator. The 1959 joint will was held in abeyance.

Michael Gaglione filed his petition seeking formal proof of the 1973 will (Ill. Rev. Stat. 1979, ch. 110½, par. 6 — 21) on July 7, 1980. At the hearing on Augut 7, 1980, the court heard the testimony of Marie Sabatino through an interpreter and directed that the testimony of Rev. Angelo Carbone, the other witness to the 1973 will, who was a nonresident, be secured at a mutually convenient time. After this was completed on August 21, 1980, the court accepted on formal proof the probate of the 1973 will and confirmed the letters of ' office previously issued to plaintiff on June 9,1980.

There was a formal hearing held on the 1959 joint will on September 24, 1980, at which time the court received the testimony of Panarese and Francis Renaldi, witnesses to the 1959 joint will. Over plaintiff’s objections to the court’s authority to conduct a hearing, the court admitted the 1959 joint will to probate, and granted the proponents of the 1959 joint will time to file a motion for summary judgment.

Proponents of the 1959 will filed their motions for summary judgment with supporting briefs. Plaintiff answered and replies were filed. On November 13, 1980, the court ordered that the only will to be probated was the 1959 joint will. The 1973 will was denied probate, letters of office issued under that will were revoked and all further proceedings were ordered to be conducted under the 1959 joint will.

An appeal was filed from the court’s order refusing to vacate the order admitting the 1959 joint will to probate. A notice of cross-appeal was filed by the 1959 joint will proponents on December 29, 1980. Plaintiff had previously, on November 26, 1980, filed her claim in court and with the co-executors under the 1959 joint will for services rendered to the decedent. DeStefano, a co-executor, moved to strike and dismiss the claim as being untimely. The court ruled that the claim had not been filed within the six-month period from the date of initial issuance of letters of office under the 1959 joint will, i.e., March 31, 1980, and it was dismissed as untimely filed. An appeal was filed from this order and on plaintiff’s motion for consolidation, these two appeals were consolidated.

Opinion

It is plaintiff’s contention that when the court was confronted with two instruments purporting to be the decedent’s last will, it had the authority only to admit to probate the last unrevoked will executed according to statutory requirements.

When the 1959 joint will met the statutory requirements of section 6 — 4 of the Probate Act, notice was sent to all heirs and legatees advising them that they have a right to require formal proof of the will under section 6 — 21. Plaintiff timely filed her petition asking that letters of office be issued under the 1973 will, that letters of office issued under the 1959 joint will be revoked and that the 1959 joint will be denied probate. Faced with the introduction of two wills, the court’s function was to consider which was the last, valid unrevoked will under the statute. (In re Estate of Mareucei (1973), 54 Ill. 2d 266, 296 N.E.2d 849.) Having determined that a prima facie case of validity had been made in regard to the 1973 will and it was admitted to probate, letters under the 1959 joint will then should have been revoked. The court in probate proceedings may properly consider the issue of presumed revocation under section 6 — 4. See In re Estate of Millsap (1979), 75 Ill. 2d 247, 388 N.E.2d 374, where our supreme court held that a party is not limited to a will contest (Ill. Rev. Stat. 1979, ch. 110½, par 8 — 1) if he desires to produce evidence giving rise to a presumption of revocation. And the presumption of revocation may be the basis of a probate court’s denial of admission. Millsap; see also In re Estate of Marcucci, where it was stated that “[t]he usual issue presented at such proceedings is a determination of which is the last, valid, unrevoked will of the testator.” (Emphasis added.)

In In re Estate of Baughman (1960), 20 Ill. 2d 593, 602, our supreme court held that “any will, whether it is a joint or joint and mutual will executed to an agreement not to revoke, is revocable at any time prior to death in any of the manners prescribed by statute. ***” Thus, an order admitting a will to probate does not foreclose further proceedings determining the will’s validity. The parties may further litigate the will’s validity in a subsequent will contest under section 8 — 1 of the Probate Act (Ill. Rev. Stat. 1979, ch. 110½, par. 8 — 1). A will may be contested in a will contest on any grounds, including its revocation. Dowling v. Gilliland (1916), 275 Ill. 76, 113 N.E. 987; In re Estate of Ketter (1978), 63 Ill. App. 3d 796, 380 N.E.2d 385; Sternberg v. St. Louis Union Trust Co. (1946), 394 Ill. 453, 68 N.E.2d 892.

Consequently, it was error for the court in the pending matter to conduct further proceedings under sections 6 — 4 and 6 — 21 on the 1959 joint will since it had already accepted formal proof of the 1973 will which revoked the 1959 joint will, under section 6 — 21. The validity of the 1959 joint will was not properly presented in the section 6 — 21 hearing after the proper admission of the 1973 will. It appears that the court characterized the section 6 — 21 hearing on the 1959 joint will in the nature of a “will contest,” which was error as hearings conducted under sections 6 — 4 and 6 — 21 are not as broad as a hearing conducted under section 8 — 1, and a jury trial may be requested under this section. The court then advised the proponents of the 1959 joint will to file a motion for summary judgment, which was improper.

We believe that the 1973 will revoked all former wills and codicils and was duly proved and should have been admitted to probate as the last, valid, unrevoked will. Opponents of the 1973 will can institute further proceedings to initiate a will contest, provided statutory requirements are met. (See, e.g., In re Estate of Ariola (1979), 69 Ill. App. 3d 158, 386 N.E.2d 862.) A consideration of whether plaintiff’s claim for services was timely filed becomes moot as her claim was filed within six months from the issuance of letters of office to her under the 1973 will.

Contentions of the cross-appellants that plaintiff failed to comply with the Civil Practice Act are raised for the first time on appeal and are without merit. In any event, the Civil Practice Act would only apply except as otherwise provided by the Probate Act (Ill. Rev. Stat. 1979, ch. 110½, par. 1 — 6; In re Estate of Ariola). Plaintiff filed her section 6 — 21 petition interrupting the proceedings under the 1959 joint will within the 42-day time limit prescribed by the Probate Act. Therefore, its provisions would govern.

For the reasons aforestated, we are remanding this matter with direction to the trial court to (1) vacate its order granting summary judgment admitting the 1959 will to probate; (2) vacate its order denying plaintiff’s claim as being untimely filed; (3) enter an order admitting the 1973 will to probate and for such further procedings consistent with this opinion.

Reversed and remanded with directions.

LORENZ and MEJDA, JJ., concur.

       “Sec. 6 — 4. Admission of will to probate — Testimony or affidavit of witnesses. (a) When each of 2 attesting witnesses to a will states that (1) he was present and saw the testator or some person in his presence and by his direction sign the will in the presence of the witness or the testator acknowledged it to the witness as his act, (2) the will was attested by the witness in the presence of the testator and (3) he believed the testator to be of sound mind and memory at the time of signing or acknowledging the will, the execution of the will is sufficiently proved to admit it to probate, unless there is proof of fraud, forgery, compulsion or other improper conduct which in the opinion of the court is deemed sufficient to invalidate or destroy the will. The proponent may also introduce any other evidence competent to establish a will. If the proponent establishes the will by sufficient competent evidence, it shall be admitted to probate, unless there is proof of fraud, forgery, compulsion or other improper conduct which in the opinion of the court is deemed sufficient to invalidate or destroy the will.
      (b) The statements of a witness to prove the will under subsection 6 — 4(a) may be made by (1) testimony before the court, (2) an attestation clause signed by the witness and forming a part of or attached to the will or (3) an affidavit which is signed by the witness at or after the time of attestation and which forms part of the will or is attached to the will or to an accurate facsimile of the will.” Ill. Rev. Stat. 1979, ch. 110½, par. 6 — 4 (formerly par. 6 — 7; renumbered par. 6 — 4 and amended by Pub. Act 81 — 213, sec. 1, eff. Jan. 1,1980).

       “Sec. 6 — 21. Formal proof of will. If a will has been admitted to probate before notice in accordance with Section 6 — 4, any person entitled to notice under Section 6 — 10 may file a petition within 42 days after the effective date of the original order admitting the will to probate to require proof of the will pursuant to this Section. The court must set the matter for hearing upon such notice to interested persons as the court directs. At the hearing the proponent must establish the will by testimony of the witnesses as provided in subsection 6 — 4(b)(1) or Section 6 — 5 or other evidence as provided in this Act, but not as provided by subsection 6 — 4(b)(2) or subsection 6— 4(b)(3), as if the will had not originally been admitted to probate. If the proponent establishes the will by sufficient competent evidence, the original order admitting it to probate and the original order appointing the representative shall be confirmed and are effective as to all persons, including creditors, as of the dates of their entries, unless there is proof of fraud, forgery, compulsion or other improper conduct, which in the opinion of the court is sufficient to invalidate or destroy the will. The time for filing a petition to contest a will under Section 8 — 1 is not extended by the filing of the petition under this Section if the order admitting the will to probate is confirmed, but if that order is vacated, the time for filing the petition under Section 8 — 2 runs from the date of vacation of the order admitting the will to probate.” Ill. Rev. Stat. 1979, ch. 110½, par. 6 — 21 (added by Pub. Act 81 — 213, sec. 1, eff. Jan. 1, 1980).


author: JUSTICE LORENZ

text:
    ELEANOR SMITH, Plaintiff-Appellee and Cross-Appellant, v. CHICAGO LIMOUSINE SERVICE, INC., Defendant-Appellant.-(Ned Cassolo, Defendant-Cross-Appellee.)
    First District (5th Division)
    No. 81—0508
    Opinion filed September 3, 1982.
    Morton A. Kier, of Chicago (Marshall D. Ossey, of counsel), for appellant.
    John C. Erb, of Paul B. Episcope, Ltd., of Chicago and Lord, Bissel & Brook (Hugh C. Griffin, of counsel) for appellee.
   JUSTICE LORENZ

delivered the opinion of the court:

Plaintiff Eleanor Smith filed suit against Chicago Limousine Service, Inc., and its driver, Ned Cassolo, for personal injuries suffered when she fell upon entering the defendants’ limousine on December 23, 1976. Following a jury trial, the jury rendered a verdict in favor of the defendant Cassolo, and against the defendant Chicago Limousine Service, Inc., in the sum of $60,000, from which judgment Chicago Limousine Service, Inc., appeals. Plaintiff cross-appeals from the judgment in this case in favor of Cassolo, and requests judgment notwithstanding the verdict, or in the alternative, moves for a new trial as to Cassolo only.

The issues on appeal are:

(1) whether a verdict against an employer based upon its independent acts of negligence is legally inconsistent with a verdict in favor of a named employee;

(2) whether the jury was improperly instructed;

(3) whether the trial court erred in denying the defendant’s post-trial motion; and

(4) whether the verdict in favor of the defendant Cassolo was against the manifest weight of the evidence.

Plaintiff testified that she resided with her husband in Massachusetts and was 73 years old in 1976. She had undergone two hip operations, including a total hip replacement in 1974, and consequently walked with a limp due to a slight shortening of her left leg. Although she was able to walk with a cane, she had difficulty in climbing stairs or in entering vehicles. Her ordinary method of entering a vehicle was to “back” towards the car by positioning herself on the car seat with her legs placed outside the vehicle, whereupon she would lift and pivot her legs into the car.

She further testified that her daughter, Dr. Ellen Vandermeulen, and son-in-law, had made arrangements with Chicago Limousine Service, Inc., for a limousine to pick herself and her husband up at O’Hare airport in Chicago, Illinois, upon their arrival in Chicago for a Christmas visit.

When plaintiff and her husband arrived at O’Hare airport on De- . cember 23, 1976, they eventually met the driver, Ned Cassolo, on the lower level of the terminal outside of the concourse area, whereupon he led them to the parked limousine and opened the rear door of the limousine for the plaintiff.

During direct examination, she was questioned as to her actions after the chauffeur opened the door. She stated, “I thought that was a signal for me to get in. So I saw him go leave around, and I thought

he was right there with me ***,” at which point her attorney interrupted her to ask the location of her husband at that time. She responded that he had left with the luggage. When asked again what the chauffeur did after he opened the door, she stated that she thought that he was right with her.

However, when questioned later concerning her actions after the rear door was opened, on cross-examination, the following exchange took place:

“Q. At this point, the rear door was open?
A. Yes, sir.
Q. Then the chauffeur went to the rear, is that correct?
A. The chauffeur came by my side and went in back towards the back, yes, sir, after he opened the door.”

Plaintiff then stated that the rear seat of the limousine was positioned so far back that she was unable to enter the vehicle in her usual manner, but had to step into the car first. She was holding her cane in her right hand and her purse over her left arm. She did not hold onto the strap on the back of the front seat. As she stepped into the vehicle with her “better” right foot, she started to lose her balance and she testified that she reached behind her towards the driver for help. She fell face first into the vehicle, sustaining multiple fractures of the knee and shoulder. Subsequently, plaintiff underwent surgery to remove her kneecap, was confined to a hospital for seven weeks, and received five months of therapy.

Alvin Golub, president of Chicago Limousine Service, Inc., testified pursuant to section 60 of the Civil Practice Act (Ill. Rev. Stat. 1977, ch. 110, par. 60), and stated that the defendant carrier was engaged in the business of carrying passengers for hire.

At the time of the incident, Golub was primarily responsible for dispatching calls. According to company policy, the dispatcher would “pass on information to its driver at the time the order came in.”

Golub testified that he was contacted by plaintiff’s son-in-law’s secretary to make the necessary arrangements. He was told that plaintiff was elderly, had trouble walking, had “had an operation or was sick,” and would need a helping hand. He responded that “[w]e would be more than happy to assist them the best we could, because that’s our business.”

Golub admitted that he did not record plaintiffs disabilities on any order sheet or communicate any instructions regarding the plaintiff to the driver, Cassolo.

The defendant driver, Ned Cassolo, was called to testify pursuant to section 60 of the Civil Practice Act. (Ill. Rev. Stat. 1977, ch. 110, par. 60.) He testified that he met the plaintiff and her husband on the lower level of the terminal on the inside of the concourse, and noticed that plaintiff was walking with a limp and using a cane. While her husband was still at her side, he asked her if she needed any help, to which she responded “no.”

When they reached the car, Cassolo opened the rear door of the limousine for the plaintiff, who was 15 feet behind him, and immediately proceeded to the rear of the vehicle with plaintiff’s husband to load luggage. He did not wait for plaintiff because “she didn’t need no help” based upon her earlier response to the contrary.

Harold Golub, called as an adverse witness under section 60 of the Civil Practice Act (Ill. Rev. Stat. 1977, ch. 110, par. 60) testified that a dispatcher for the limousine service might or might not relay special instructions depending upon who had called and how important they were or who they were. He stated that he personally would not have taken a call to pick up an elderly person who had difficulty walking because “we are not an ambulance business. We don’t touch people. I don’t want to touch people.”

Golub testified that all drivers were specifically instructed, as a matter of company policy, not to touch passengers entering the limousine, although passengers exiting the vehicle were to be assisted.

Plaintiff’s daughter, Dr. Ellen Vandermeulen, testified for plaintiff that she and her husband hired a limousine service because they wanted to make sure that plaintiff received the assistance she needed due to her age and recent hip displacement.

Following the close of the evidence, the plaintiff tendered inter alia, instruction No. 17, Illinois Pattern Instructions, Civil, No. 20.01 (2d ed. 1971) (hereinafter IPI), over defendant’s objection, which set forth that defendant, Chicago Limousine Service, Inc., was negligent in that it,

“(c) Failed to advise its employee that the plaintiff was physically disabled and infirmed.
(d) Failed to advise its employee that it had agreed to provide assistance and additional care to its passenger who it knew to be physically disabled and infirmed.
(e) Failed to give proper and adequate instructions and training to its employees on the appropriate manner in which to render assistance and additional care to its passenger who was disabled and infirmed.”

Following deliberation, the jury returned a verdict in favor of the defendant, Ned Cassolo, and against the defendant, Chicago Limousine Service, Inc.

Opinion

Initially, we review the standard of care owed by defendant Chicago Limousine Service, Inc., to its passengers. Chicago Limousine Service, Inc., was a common carrier. A line of Illinois cases indicates that while a common carrier owes its passengers the highest degree of care consistent with the practical operation of its vehicles (Loring v. Yellow Cab Co. (1975), 33 Ill. App. 3d 154, 337 N.E.2d 428) it cannot be an absolute insurer of the safety of its passengers (Morris v. Chicago Transit Authority (1975), 28 Ill. App. 3d 183, 328 N.E.2d 208) and it is not responsible for personal injuries sustained by them in the absence of some unjustifiable act of commission or omission. (Kerby v. Chicago Motor Coach Co. (1960), 28 Ill. App. 2d. 259, 171 N.E.2d 412.) Thus, a common carrier cannot be held liable for injuries suffered by a passenger unless its negligence was the proximate cause of the injuries. Lutz v. Chicago Transit Authority (1962), 36 Ill. App. 2d 79, 183 N.E.2d 579.

Consonant with these legal principles, we are of the opinion that the injuries suffered by plaintiff were not proximately caused by any negligence on the part of either of the defendants, Cassolo or Chicago Limousine Service, Inc.

We first consider whether defendants breached any duty of care as a common carrier towards its passenger. As to defendant Chicago Limousine Service, Inc., plaintiff specially argues that it breached its duty of care by failing to advise Cassolo of plaintiff’s infirmity and failing to give proper and adequate instructions on the appropriate manner in which to render her assistance. Plaintiff further argues that defendant Cassolo breached his duty to exercise the highest degree of care for her safety.

With respect to the latter argument, the record discloses that Cassolo, who had observed the plaintiff as she walked towards him with a cane, asked her if she needed any assistance. She refused. Both the driver and plaintiff’s husband had gone to the rear of the limousine to load luggage when plaintiff entered the vehicle. The driver testified that he did not further assist her based upon her original refusal of assistance.

Given her refusal, the driver was precluded from giving her any additional and unwarranted assistance. Under these circumstances, we find that the driver had fulfilled his duty of care towards the plaintiff.

As to the defendant Chicago Limousine Service, Inc., we do not find merit in plaintiff’s argument that defendant’s failure to give proper and adequate instructions and training to its employee driver on the appropriate manner to render assistance to an infirmed passenger was the proximate cause of plaintiff’s injuries.

Under the facts on the case, the only instruction that could have been given would be to inform the driver of plaintiff’s infirmity and to provide any assistance that she would reasonably require. Our examination of the record discloses that plaintiff’s counsel has never indicated what the driver could have been instructed to do, which he did not, in fact, do, or even what he could have done as plaintiff entered the car.

However, even assuming arguendo that the carrier had a duty to • instruct its driver, whether or not the defendant had told its driver to give the plaintiff assistance could not be a proximate cause of her injuries where the driver had offered assistance which she said that she did not need.

Our review of the record further discloses that the plaintiff did not refute or deny the driver’s testimony that she did not need help. Moreover, plaintiff testified on two occasions that the driver went to the back of the car to load luggage with her husband, giving rise to a presumption that she knew that the driver was not at the door to assist her.

In addition, we note that the plaintiff’s tendered Instruction No. 17, IPI Civil No. 20.01, does not elaborate as to what the supposedly remedial instructions to the driver would consist of.

As the court in Kind v. Hycel, Inc. (1977), 56 Ill. App. 3d 772, 787-88, 372 N.E.2d 385 (a case which defendant cites on its own behalf), stated: “Negligent conduct cannot bé the proximate cause of an injury, unless there is evidence that but for the conduct, the injury would probably have not resulted.” For reasons previously discussed, we find that there is no evidence apparent of record which reveals that but for the defendants’ conduct, the injury would not have resulted.

Consequently, we find that any of defendants’ acts or omissions were not the proximate cause of plaintiff’s injuries in the case at bar.

As an independent ground for our decision, we note the legal maxim that there can be no liability on the part of a principal under the application of the respondeat superior doctrine unless the agent is also held to be liable. Gramm v. Armour & Co. (1971), 132 Ill. App. 3d 1011, 271 N.E.2d 52.

In Rakus v. Black (1965), 55 Ill. App. 2d 438, 442, 204 N.E.2d 611, the court quoted with approval from Bunyan v. American Glycerin Co. (1923), 230 Ill. App. 351, 354:

“In this State the law is well settled that where an action on the case is brought against two defendants and one of them is liable only on account of the rule of respondeat superior for the negligence of the other, if the latter is found not guilty such finding is a complete bar to the action against the former.”

Accordingly, we find that the verdict against the defendant Chicago Limousine Service, Inc., was against the manifest weight of the evidence, and we need not address the other issues raised by defendant Chicago Limousine Service, Inc.

For the foregoing reasons, the judgment of the circuit court of Cook County is reversed as to defendant Chicago Limousine Service, Inc., and affirmed as to defendant Ned Cassolo. Plaintiff’s requests for judgment notwithstanding the verdict, or in the alternative motion for a new trial as to Cassolo only are hereby denied.

Reversed in part; affirmed in part.

SULLIVAN, P. J., and MEJDA, J., concur.

       Alvin Golub testified that Chicago Limousine Service, Inc. was a limited partnership co-owned by himself and his brother Harold Golub. Since the nature of the defendant's business entity is not in issue on appeal, we need not address the discrepancy disclosed by the record.


author: JUSTICE JIGANTI

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LEODIS DORTCH, Defendant-Appellant.
    First District (4th Division)
    No. 81—714
    Opinion filed September 30, 1982.
    Rehearing denied November 10, 1982.

      Irwin L. Frazin & Associates, Ltd., of Chicago (Robert A. Fisher and David Schreiner, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Kevin Sweeney, and Rhoda Davis, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE JIGANTI

delivered the opinion of the court:

After a jury trial, the defendant was found guilty of murder and attempt armed robbery and sentenced to a term of 28 years. The defendant on appeal contends that his arrest was illegal. Consequently, the defendant claims that the subsequent lineup, the in-court testimony concerning the lineup identification and the in-court identification should have been suppressed. Dortch also contends that he was denied a fair trial because he was not allowed to effectively confront the witnesses against him, because the prosecutor made prejudicial remarks and because the court improperly read the Prim instruction to the jury.

On September 19, 1979, two men walked into a fast food restaurant, a Church’s Chicken, and announced a robbery. One of the men shot and killed an employee and then unsuccessfully tried to open the cash register. When this failed both men exited the restaurant. There was one eyewitness that saw the shooting, Ethel Collins. It is her testimony that is the subject of the first issue on appeal. Collins viewed the defendant in a police lineup and identified the defendant. At trial, Collins made an in-court identification and also testified about the out-of-court lineup identification.

Prior to trial the court heard a motion to quash the defendant’s arrest and to suppress the subsequent lineup and in-court identifications and testimony by Collins. Dortch contended that his arrest was in violation of Payton v. New York (1980), 445 U.S. 573, 63 L. Ed. 2d 639, 100 S. Ct. 1371, and People v. Abney (1980), 81 Ill. 2d 159, 407 N.E.2d 543, because he was arrested in his home and without a warrant. The trial court was well apprised of the two cases cited and made a very careful and specific ruling. The court found that although there was probable cause to make an arrest, a fact which is not disputed, there were no exigent circumstances and no consent was given to enter the house. Consequently, the arrest was improper. The court further found that the arrest was not made for the purpose of having a lineup, obtaining evidence or for otherwise exploiting an illegal arrest. The court ruled that the evidence was admissible.

The State argues that there were exigent circumstances which would make the arrest proper under Payton and Abney. The State also argues that there was consent given to enter the house which made the arrest proper. We will not consider these items because we agree with the State’s third contention; the taint from the primary illegality, the illegal arrest, was dissipated or attenuated.

Not all evidence obtained from illegal searches or seizures in violation of the fourth amendment is suppressible. (Wong Sun v. United States (1963), 371 U.S. 471, 9 L. Ed. 2d 441, 83 S. Ct. 407; Brown v. Illinois (1975), 422 U.S. 590, 45 L. Ed. 2d 416, 95 S. Ct. 2254.) Direct, primary evidence obtained from an illegal search or seizure is suppressible under the fourth amendment exclusionary rule.' (Wong Sun v. United States (1963), 371 U.S. 471, 485, 9 L. Ed. 2d 441, 453-54, 83 S. Ct. 407, 416.) In Mapp v. Ohio (1961), 367 U.S. 643, 6 L. Ed. 2d 1081, 81 S. Ct. 1684, the fourth amendment violation was an illegal warrantless search of the defendant’s residence. Obscene materials were found as a direct and immediate result of the search. The defendant was entitled to have the evidence suppressed. However, evidence may often be secondary or derivative in character. After an illegal search or seizure the defendant may subsequently give a confession or information that leads to other evidence. (See W. LaFave, Search and Seizure sec. 11.4, at 612 (1978).) In the instant case, the lineup, which followed the illegal arrest, was secondary or derivative evidence.

Secondary or derivative evidence is not “sacred and inaccessible.” If such evidence is obtained from an independent source it may be used. (Silverthorne Lumber Co. v. United States (1920), 251 U.S. 385, 392, 64 L. Ed. 319, 321, 40 S. Ct. 182, 183.) Secondary evidence is tainted but the connection between the illegal search or seizure and the evidence may “become so attenuated as to dissipate the taint.” (Nardone v. United States (1939), 308 U.S. 338, 341, 84 L. Ed. 307, 312, 60 S. Ct. 266, 268.) The guiding question with secondary evidence is “ ‘whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.’ ” (Wong Sun v. United States (1963), 371 U.S. 471, 488, 9 L. Ed. 2d 441, 455, 83 S. Ct. 407, 417.) The exclusionary rule is not a personal constitutional right but rather a judicially carved remedy designed to safeguard fourth amendment rights. (United States v. Calandra (1974), 414 U.S. 338, 38 L. Ed. 2d 561, 94 S. Ct. 613.) As the Supreme Court explained in Elkins v. United States (1960), 364 U.S. 206, 217, 4 L. Ed. 2d 1669, 1677, 80 S. Ct. 1437, 1444, “The rule is calculated to prevent, not to repair. Its purpose is to deter *** by removing the incentive to disregard it.” In Brown v. Illinois (1975), 422 U.S. 590, 608-09, 45 L. Ed. 2d 416, 430, 95 S. Ct. 2254, 2264, Mr. Justice Powell concurring in part stated that “in some circumstances strict adherence to the Fourth Amendment exclusionary rule imposes greater cost on the legitimate demands of law enforcement than can be justified by the rule’s deterrent purposes. The notion of the ‘dissipation of the taint’ attempts to mark the point at which the detrimental consequences of illegal police action become so attenuated that the deterrent effect of the exclusionary rule no longer justifies its cost.”

In support of his position that the taint has not been dissipated or attenuated, Dortch cites People v. Sampson (1980), 86 Ill. App. 3d 687, 408 N.E.2d 3, where the court listed four factors to be considered in making that determination: the temporal proximity of the illegality to the evidence obtained; the presence of intervening circumstances; the purpose and flagrancy of the police misconduct; and the presence of or absence of Miranda warnings. The factors set out in Sampson were derived from Brown v. Illinois (1975), 422 U.S. 590, 603-04, 45 L. Ed. 2d 416, 427, 95 S. Ct. 2254, 2261-62. In setting forth the test in Brown, the Supreme Court stated that the protection of the fourth amendment will not turn on a talismanic test. However, the court put special weight on the Miranda warnings because Brown involved a confession which is not relevant here. The court also gave particular emphasis to the purpose and flagrancy of the official misconduct which is relevant to a lineup situation.

The first consideration set out in Sampson is temporal proximity. In the instant case, Dortch was arrested in his home six weeks subsequent to the occurrence. The lineup took place within four hours of his arrest. The Supreme Court in Wong Sun considered the element of temporal proximity. There the defendant, Wong Sun, had been released on his own recognizance after a lawful arraignment. Several days later he voluntarily returned and made a statement. The court found that the connection between Wong Sun’s arrest and his statement had been attenuated because of the lack of proximity between the illegal arrest and the statement. The taint that arose from the illegal arrest had been dissipated. In the same case however, a codefendant named Toy made a statement which was contemporaneous with his arrest. Toy’s statement was suppressed. The court’s determination as to whether to suppress Wong Sun’s and Toy’s statements was affected by the time sequence. However, in lineup cases, temporal proximity seems to shed little light on the underlying inquiry as to whether the lineup was an exploitation of the primary illegality, an illegal search or seizure. (See W. LaFave, Search and Seizure sec. 11.4, at 657 (1978).) Therefore, Collins’ identification of Dortch is but minimally affected by the fact that the lineup was held four hours after the arrest rather than several days later.

Intervening circumstances are a second Sampson consideration in determining whether or not to suppress secondary evidence. In Wong Sun, the intervening circumstance was that Wong Sun was released from custody before coming back to make a statement. Such intervening circumstance gave assurance that Wong Sun’s statement was made not because of the illegal police conduct but rather due to his own free will. In contrast the codefendant in Wong Sun, Toy, made a statement immediately thereafter and that statement was suppressed. In the instant cause, there were no intervening circumstances.

The last factor set out in Sampson, which is particularly relevant to a lineup situation and which Brown says should be given great weight in a decision as to whether or not to suppress secondary evidence, is the purpose and flagrancy of the police conduct. In arguing that the police conduct was flagrant, Dortch asserts that there was no warrant, that he was not advised as to why he was being arrested and that the police did not tell his wife the reason for the arrest. These factors bear on the legality of the arrest and not the flagrancy and purposefulness of the police conduct. We have already decided that Dortch’s arrest was illegal and that the subsequent evidence was tainted under the holdings in the cases previously cited. If police conduct is found to be purposeful and flagrant, then the taint from the illegality is not attenuated or diminished. This is because the purpose of suppressing subsequent evidence is to prevent similar conduct on the part of the police in the future and to deny them any benefit from such conduct. However in the instant cause, the trial court specifically found that Dortch’s arrest was not effected for the purpose of obtaining evidence. The police did not embark on the expedition in the hope that “something might turn up.” (Brown v. Illinois (1975), 422 U.S. 590, 605, 45 L. Ed. 2d 416, 428, 95 S. Ct. 2254, 2262.) Because the police conduct was neither purposeful nor flagrant, we believe that the trial court’s decision not to suppress the evidence was appropriate.

As Justice Powell observed in Brown, the question of attenuation inevitably is a matter of degree. Thus in weighing the relevant factors set out in Sampson — temporal proximity, intervening circumstances and, most importantly, the purposefulness of the police conduct — we concur with the trial court’s finding that the taint emanating from the illegal arrest had been dissipated or attenuated. Consequently, the lineup and in-court identifications as well as Collins’ testimony about the lineup identification were properly before the jury.

The defendant’s second contention on appeal is that he was not allowed to effectively confront witnesses against him. Specifically, the defendant claims that he was not allowed to effectively cross-examine one witness, a Ms. Steward, as to her bias, motive or interest in testifying against the defendant; that he was not allowed to effectively cross-examine Ethel Collins as to the circumstances of her day and her opportunity to observe the robbery; that he was not allowed to effectively cross-examine an investigating officer named Shine as to Collins’ description of the scene; that he was not given an opportunity to take the stand and testify on his own behalf because the judge refused to suppress his prior convictions which were almost 10 years old and he would have been open to impeachment; and that the judge abused his discretion when he refused to allow one out of three photographs of the defendant to be admitted into evidence.

The above five matters of which the defendant complains falls within the sound discretion of the trial court. The defendant was allowed to cross-examine Steward, Collins and Shine. The trial court limited the cross-examination of Stewart because it was repetitive, the cross-examination of Collins because a description of her entire day was beyond the scope of direct examination, and the court limited the description by Investigator Shine because it involved information beyond his personal knowledge. The law is well settled that the trial court is vested with “substantial discretion” to determine both the manner and scope of cross-examination. (People v. Peter (1973), 55 Ill. 2d 443, 303 N.E.2d 398; People v. McCain (1963), 29 Ill. 2d 132, 193 N.E.2d 784.) Accordingly, the trial court’s decision on such issues will not be overturned absent a showing of a clear abuse of that discretion resulting in manifest prejudice to the defendant. (People v. Halteman (1956), 10 Ill. 2d 74, 139 N.E.2d 286.) Because we believe that the trial court’s rulings were reasonable under the circumstances, we find no showing of clear abuse of discretion.

Likewise, we do not believe that the court was incorrect in refusing to suppress evidence of the defendant’s prior convictions. The rule is well established that because the defendant had been convicted of a felony within 10 years of the time of trial, the conviction would have been a proper basis for impeachment. (See People v. Cox (1972), 8 Ill. App. 3d 1033, 293 N.E.2d 727, and People v. Montgomery (1971), 47 Ill. 2d 510, 268 N.E.2d 695.) Because evidence of his prior convictions was permissible grounds for impeachment, it was obviously the defendant’s trial strategy which kept him from testifying and not error attributable to the trial court.

In addition, we can see no prejudice accruing to the defendant because the trial court excluded one out of three similar photographs of his person from being admitted into evidence. Because the trial judge allowed defense counsel to choose two of the three photographs to present to the jury, we fail to see how the judge’s exercise of discretion in this area prejudiced the defendant. See People v. Castillo (1976), 40 Ill. App. 3d 413, 352 N.E.2d 340.

The defendant’s third contention on appeal is that the prosecutor made prejudicial, inflammatory and erroneous statements in closing argument which denied him a fair trial. Specifically, this case “seems to be the People of the State of Illinois v. Ethel Collins and Barbara Steward, *** and Mr. Kling [the defendant’s attorney] if you will recall, is the only one who ever said anything about a clean shaven person. Mr. Kling likes to testify.” The prosecutor also said, “[Y]esterday we had the biggest snow storm of the season and today you have seen the biggest snow job in this courtroom.” The prosecutor also made certain comments which related to the death of the victim.

While we do not sanction any remarks by a prosecutor in closing argument which border on prosecutorial abuse, it has been uniformly held that a prosecutor has great latitude in presenting his closing argument. (People v. Smith (1978), 64 Ill. App. 3d 1045, 382 N.E.2d 298.) Reviewing courts are reluctant to set aside a verdict on the ground of remarks made during closing argument and do so only where these remarks are clearly prejudicial. (People v. Franklin (1976), 42 Ill. App. 3d 408, 355 N.E.2d 634.) When the prosecutor’s comments in this case are examined in the context of the entire record, we cannot find any indication that the defendant was prejudiced by the prosecutor’s closing remarks. People v. Hoggs (1974), 17 Ill. App. 3d 67, 307 N.E.2d 800.

The defendant’s final contention on appeal is that the trial court improperly read the Prim instruction to the jury after only five or six hours of deliberation when the jury was not deadlocked, causing a guilty verdict to be almost immediately rendered by the jury. Specifically, the defendant claims that the Prim instruction has a coercive effect on jurors to “heed the majority” and this effect deprived the defendant of the jury’s impartial consideration of the evidence.

The record reveals that the jury was sent out at approximately 12:30 p.m. and was called back by the court at approximately 6:25 p.m. This time span included lunch and dinner. When the jury was recalled, the court advised them that the purpose of bringing them back was “for the court to make a determination whether or not you are making any progress, what the situation is with reference to your deliberations, whether or not further deliberations can result in a verdict being reached.” The foreman responded that he believed with a reasonable degree of certainty that the jury could reach a verdict in this case. He also stated that the current ballot was 11 to 1. The court then polled each juror individually to see if he believed that with additional deliberations a verdict could be reached. All jurors responded, “Yes.” The court then gave the exact instruction approved by the Illinois Supreme Court in People v. Prim (1972), 53 Ill. 2d 62, 289 N.E.2d 601. This instruction contained nothing of the “heed the majority theme” criticized by the court in People v. Richards (1968), 95 Ill. App. 2d 430, 237 N.E.2d 848. Therefore on the basis of this record, we cannot see how the trial court erred in reading this instruction to the jury.

For the above reasons, we affirm the judgment of the trial court.

Affirmed.

LINN and ROMITI, JJ., concur.

       Cases holding that a lineup identification is not in fact fruit of the prior illegal arrest include the following: Commonwealth v. Garvin (1972), 448 Pa. 258, 293 A.2d 33; United States v. Young (4th Cir. 1975), 512 F.2d 321; State v. Lynch (Mo. App. 1975), 528 S.W.2d 454. Illinois, however, has held that a lineup identification is fruit of a prior illegal search in People v. Holdman (1977), 51 Ill. App. 3d 484, 366 N.E.2d 993, and People v. Sampson (1980), 86 Ill. App. 3d 687, 408 N.E.2d 3.