text:
    The County of Cook, Petitioner-Appellant, v. La Salle National Bank et al., Defendants-Appellees.
    (No. 54235;
    First District
    September 10, 1971.
    Edward V. Hanrahan, State’s Attorney, and Daniel P. Coman, Chief of the Civil Division, both of Chicago, (Jerome S. Schain, James A. Rooney, and Thomas E. Brannigan, Assistant State’s Attorneys, of counsel, ) for appellant.
    Foran, Wiss and Burke, of Chicago, (Robert E. Wiss and Thomas T. Burke, of counsel,) for appellees.
   Mr. PRESIDING JUSTICE ENGLISH

delivered the opinion of the court:

Petitioner brought an eminent domain proceeding to acquire certain land of defendants. The property sought to be taken consists of a one-foot strip of land along the frontage of 13 lots abutting on Sibley Boulevard in Harvey. The purpose of taking the one-foot strip was to eliminate access from the lots to Sibley Boulevard. The jury awarded defendants $25,165 for the property taken and for damages to the remainder, Petitioner .appeals, contending that the award was excessive due to an improper method of valuation by defendants’ valuation witnesses, and that the court erred in failing to strike this testimony.

All of the lots in question are held in two trusts by the La Salle National Bank for the same beneficial owner. The lots are in tw'o blocks fronting on the south side of Sibley Boulevard. One group of four adjacent lots (Parcel 1 for our identification) lies immediately west of Artesian Avenue. To the east, in the block between Artesian and Western, there are two groups of lots separated by one lot under different ownership. Immediately east of Artesian lies one group of five adjacent lots (Parcel 2 for our identification) and, beyond the one intervening lot, lies a group of four adjacent lots (Parcel 3 for our identification) extending to Western Avenue.

Petitioner, for administrative purposes, designated the 13 lots as consisting of five parcels instead of three, as above described. The parcels we have described as 2 and 3, above, are the same. As to the four adjacent lots in Parcel 1, however, Petitioner designated each of the two westernmost lots as separate parcels, and lumped together the two lots closest to Artesian as still another parcel.

At the trial, defendants treated their property as consisting of three parcels, as we have identified them above (though without number reference). The only difference, therefore, in the parcel designation of the parties is that Petitioner, administratively, divided the four adjacent lots of Parcel 1 into three separate parcels.

Petitioner’s position at trial, and in its original brief in this court, was that any appraisal of the value of the property must be made on the basis of the five parcels as administratively determined by it, citing the Eminent Domain Act, Ill. Rev. Stat. 1967, ch. 47, par. 5, in part:

“Any number of separate parcels of property, situate in the same county, may be included in one petition, and the compensation for each shall be assessed separately by the same or different juries, as the court or judge may direct.”

Petitioner abandoned this contention in its reply brief, and argued that defendants’ valuation witnesses erroneously appraised the 13 lots as one unit, rather than as three separate parcels. Both parties recognize the established rule that land must be under common ownership and contiguous to be considered a parcel for valuation purposes. Bowman v. Venice & Carondelet Ry. Co., 102 Ill. 459, 465; White v. West Side Elevated R.R. Co., 154 Ill. 620, 625-26.

The valuation testimony offered by Petitioner shows no basis for the appraisal other than the division of the lots into the five administratively designated parcels previously mentioned. Petitioner’s valuation witness, Gilbert Glenn, an appraiser, testified to a figure representing the value of the part of each of the five parcels actually taken, and the damages to the remainder, totaling $5,321. In making his appraisal, he valued the property on the basis of its use for residential purposes, while admitting that the entire property was zoned commercial. He also testified that his appraisal had been made two and a half years prior to his testimony; that he had not been familiar with land sales in Harvey during the previous two years; and that he had not acted as a broker or developer in Harvey in the previous 10 years.

Defendants’ first valuation witness, Robert Kane, was a real estate broker and appraiser who served on the Harvey Zoning Board for seven years, and in the previous ten years had bought and sold some 800 to 850 properties within three miles of the property in question. He had done appraisal work for Petitioner, among many others. His testimony included the following:

“The property that is the subject of this lawsuit is thirteen lots facing Sibley Boulevard, between, as I said, Western, Artesian and Campbell.
Running west from Western Avenue there is one parcel 199.23 feet in width frontage and then there is a vacant lot and then there is another parcel which is 123.78 foot frontage.
And then the other side of Artesian there are four lots broken up into three parcels, one of 57 feet and the other each of 25 foot but they are contiguous. There is a hundred foot contiguous frontage there. So you have approximately a block and a half of property excepting the one 25 foot lot that is missing.” Emphasis supplied.

He then gave a total figure of $33,950 for the value of the part taken and damage to the remainder of the 13 lots. He explained that the damage resulted from the loss of access to Sibley Boulevard, leaving the inside lots with access to an alley only and destroying the property’s commercial use possibilities.

Under cross-examination, the witness was asked to break down his total valuation of damages to a figure for each of the five parcels designated in the petition. He explained that he appraised the property “as a package, and it was.” The following exchange then took place:

“PETITIONER’S COUNSEL: Q. You are talking about remainder. Taking on a parcel basis in which this is the way the case has been set up, we are going on individual parcels here. The Jury—
THE WITNESS: A. I would have to give greater damage to the remainder. This would be the only thing that would have value at all.
Q. Your opinion would change if you were to give an opinion on the value of each parcel?
A. It would have to be greater damage to the remainder,”

We believe that this witness did recognize that the property was not a continuous tract, but was made up of three separate parcels of land, each subdivided into adjacent lots, all under one ownership. He also testified that if his opinion were to be based upon Petitioner’s five parcel designations, his appraisal of damages would have to be revised upward.

Defendants’ second valuation witness, John McNamara, had been a real estate broker and appraiser for 42 years, with extensive experience in Harvey. His appraisal was made approximately two or three months prior to his testimony. Considering the property under its present commercial zoning, he valued the part taken at $4,500 and damage to the remainder at $33,800 for a total of $38,300. On cross-examination, the following occurred:

“PETITIONER’S COUNSEL: Q. Mr. McNamara, when you appraised the five parcels did you appraise them as one piece of property?
A: I appraised them on that basis and then broke them down individually.
# # # #
Q. Did you appraise each individual parcel, five parcels?
A. No, I didn’t appraise the five parcels originally. I appraised it as three parcels because my opinion was it was all -under one ownership and it fell in that category.” Emphasis supplied.

Petitioner’s counsel then moved to strike McNamara’s testimony on the ground (in effect) that he had apparised the four lots of Parcel 1 (as identified above) as one parcel, rather than as the three separate parcels designated by Petitioner. This motion, and the same point raised later, were both overruled by the trial court, and we believe correctly so. That a part of a tract of land is of greater value when considered as a part of and in its relation to the entire tract, rather than separately, is a principle of condemnation which “has long since passed the stage of discussion in this State.” Forest Preserve Dist. v. Draper, 387 Ill. 149,158.

As to the amount of the award, we note again that the property was zoned commercial and that this zoning would have to be changed if the property were to be usable at all (according to all three witnesses), since the lots no longer had access to Sibley Boulevard. Petitioner’s witness expressly based his valuation on a rezoning to residential before the property could be used. In addition, the lots would obviously have to be realigned to give them access to side streets running into Sibley Boulevard since, after the taking, all but three of the lots would be accessible only from the alley.

The record indicates, as we have pointed out, that defendants’ valuation witnesses properly appraised the property in question as three separate parcels of land which they were. In view of the fact that the taking would necessitate rezoning as well as realignment of the lots, the jury could properly have rejected the $5,321 valuation of Petitioner’s witness, and their verdict, being within the range of the valuation testimony, should not be disturbed.

The judgment is therefore affirmed.

Judgment affirmed.

DRUCKER and LORENZ, JJ., concur.


source: Caselaw Access Project

author: Mr. PRESIDING JUSTICE LEIGHTON

license: Public Domain

text:
    Sylvia Madrazo, Plaintiff-Appellant, v. Benjamin R. Michaels, et al., Defendants-Appellees.
    (No. 54405;
    First District
    September 10, 1971.

      Kavathas, Castanes & Chakos and Benjamin Daidone, of Chicago, (John C. Castanes, of counsel,) for appellant.
    Pretzel, Stouffer, Nolan & Rooney, of Chicago, (Joseph B. Lederleitner, of counsel,) for appellees.
   Mr. PRESIDING JUSTICE LEIGHTON

delivered the opinion of the court:

This was a suit to recover damages for personal injuries which plaintiff sustained when she fell on a stairway in defendants’ home. The parties agree concerning the facts which give rise to the issue in this appeal.

Defendants Benjamin and Paula Michaels are husband and wife, and at the time in question were parents of two children, three and six years old. Plaintiff is Paula’s aunt. Early in 1962, she was a seamstress and lived in New Jersey. In March 1962, defendants planned to move from one house to another in Skokie, Illinois. In January or February, Paula wrote plaintiff, told her that Benjamin Michaels was going to be in New York on the day of the move and asked her to come and help with the moving and with care of the children. Plaintiff, without any promise by defendants or expectation that she would be paid or reimbursed her expenses, left her job and came to defendants’ home. The move, into a house that had three levels, was accomplished on March 1, 1962.

The next day, plaintiff and Paula unpacked cartons of household items. At about 11:00 A.M., plaintiff walked up the stairway to the third level. Paula, without telling plaintiff, took a box and placed it on the stairway. A short time later, plaintiff “[w]as coming down, loaded up with clothes, as usual, and I couldn’t see too much down * * * I was leaning against the railing * » * j found myself slipping and my foot got into something * * *. I noticed that my foot was inside of a box.” Paula Michaels, called by plaintiff as an adverse witness, told the jury of her letter inviting plaintiff to her home and of the incident on March 2, 1962 when she placed the box on the stairway just before plaintiff’s fall. In addition, by stipulation, a deposition of the doctor who examined plaintiff in March 1969 was read to the jury. At the close of plaintiff’s case, defendants moved for a directed verdict on two grounds. They argued that (1) plaintiff’s evidence proved she was their social guest, a licensee in their home to whom they owed only the duty to refrain from willful and wanton conduct which could cause injury; and (2) the evidence proved plaintiff, as a matter of law, was guilty of contributory negligence because she walked down the stairway with her arms so full of clothes that she could not see where she was going. After hearing argument, the trial judge concluded that plaintiff was a social guest and that even if she were an invitee in defendants’ home, she was guilty of contributory negligence. Therefore, he ruled that defendants were entitled to a directed verdict. The issue is whether this ruling was correct.

We begin with the principle that the trial judge ought to have directed the verdict only if all the evidence, viewed in its aspect most favorable to plaintiff, so overwhelmingly favored defendants that no contrary verdict based on that evidence could ever stand. (Pedrick v. Peoria and Eastern R.R. Co., 37 Ill.2d 494, 229 N.E.2d 504; Bachman v. Illinois Central R. Co., (Ill.App.2d), 268 N.E.2d 42.) Correctness of the ruhng depends on plaintiff’s status in defendants’ home when she was injured, that is, whether she was a social guest or an invitee.

Plaintiff contends that her status was a question of fact for the jury. She argues that there was evidence which would have sustained a verdict that she was defendant’s invitee. Plaintiff insists that defendants’ motion should have been denied and the jury allowed to decide whether she was guilty of contributory neghgence and whether she was injured by defendants’ negligence.

Defendants, on the other hand, contend that plaintiff was their social guest, a licensee on their property, to whom they owed no other duty than to refrain from willful and wanton conduct that could cause her injury. They argue that on plaintiff’s evidence, no verdict, contrary to the one directed, could ever stand. It is necessary, therefore, that from the evidence in the record we determine whether, as defendants contend, plaintiff was defendants’ social guest who, as a matter of law, was guilty of contributory negligence when she was injured, or, as plaintiff insists, she was an invitee on defendants’ property who, in the exercise of due care for her safety, was injured by defendants’ negligence. In making this determination we must resort to the authoritative sources of our law and language.

Webster, in the context that concerns us, defines “social” as that which is “[s]pent, taken, enjoyed * * * in the company of one’s friends or equals; marked by or pertaining to companionship * <* * for the salce of diversion * * A guest, he teUs us, is “[a] person entertained in one’s house or at one’s table; * * * hence, a person to whom the hospitafity of a home is extended.” (Webster’s New International Dictionary, 2d ed. 1949.) Therefore, a “social guest” is a person who goes on the property of another for companionship, diversion, enjoyment of hospitafity. He is a licensee who enters the premises of the owner by permission, but for his own purposes. (See Casey v. Adams, 234 Ill. 350, 84 N.E. 933; compare Dobrin v. Stebbins, 122 Ill.App.2d 387, 259 N.E.2d 405.) To his social guest the owner is liable only for injuries occasioned by willful and wanton misconduct. Cunag v. McCarthy, 42 Ill.App.2d 36, 191 N.E.2d 404; I.L.P. Negligence § 56; Annot., 79 A.L.R.2d 90 (161).

An invitee, as that term has evolved in Anglo-American law, is a person who goes on the property of another by express or implied invitation to transact business in which he and the owner have a mutual interest. (Ellguth v. Blackstone Hotel, Inc., 408 Ill. 343, 347, 97 N.E.2d 290.) He is invited on the premises of the owner to promote some real or fancied material, financial, or economic interest of the owner. To his invitee the owner is hable for injuries caused by the failure to exercise due care to make the premises reasonably safe for the invitee’s use. (Pauckner v. Wakem, 231 Ill. 276, 83 N.E.202.) In this country and in England, the test of invitee status in this definition has been economic activity or benefit. See Dowd v. Portsmouth Hospital (1963), 105 N.H. 53, 193 A.2d 788, and Annot., 95 A.L.R.2d 992 (1964).

However, the trend in modern English and American law is away from economic activity or benefit as the exclusive test of invitee status on the land of another. (Lunney v. Post, (Ct.App.Fla. 1971), 248 So.2d 504; Occupier’s Liability Act, 5 & 6 Eliz. 2c. 31 (1957); Prosser, Torts, (3d ed.) 394-401 (1964), 2 Harper & James, The Law of Torts, §27.12 (1956).) Examples of this trend in Illinois are Augsburger v. Singer, 103 Ill.App.2d 12, 242 N.E.2d 436, decided by the second district appellate court in 1968; Drews v. Mason, 29 Ill.App.2d 269, 172 N.E.2d 383, decided by the third district in 1961; Bogovich v. Schermer, 16 Ill.App.2d 197, 147 N.E.2d 711 and Hamilton v. Faulkner, 80 Ill.App.2d 159, 224 N.E.2d 304, decided by the fourth district in 1958 and 1967, respectively. Kapka v. Urbaszewski, 47 Ill.App.2d 321, 198 N.E.2d 569, decided by this district in 1964, and relied on by defendants, is a case which on its facts is consistent with the trend in the modern law of invitee-owner relations. A survey of this trend is to be found in an annotation in which the author concludes that “[i]n a number of the more recent cases the courts have expressly rejected economic benefit as the exclusive test of invitee status.” Annot., 95 A.L.R.2d 992, 1006 (1964).

Illinois decisional law supports the rule that a person is an invitee on the land of another if (1) he enters by invitation, express or implied, (2) his entry is connected with the owner’s business or with an activity the owner conducts or permits to be conducted on his land and (3) there is a mutuality of benefit or a benefit to the owner. (See Drews v. Mason, supra, and compare Milauskis v. Terminal RR. Ass’n., 286 Ill. 547, 122 N.E. 78.) The status of an invitee does not depend on whether the invited person is to gain an advantage or benefit from his entry; it is sufficient that the go on the land in furtherance of the owner’s business or an activity he conducts or permits on the premises. Augsburger v. Singer, supra.

When these definitions and principles are applied to the evidence in this case, Paula Michaels’ letter inviting plaintiff to come to defendants' home and help them move from one house to another acquires significance. The help which defendants requested involved labor, not companionship. Common sense teUs us all that one who goes to the home of another to help him move and care for his children is not partaking of diversion or hospitality. We assume that familial conviviality was one of the inducements that led plaintiff to accept defendants’ invitation. However, plaintiff’s purpose in leaving her seamstress’ job in New Jersey and traveling to defendants’ home in Skokie, Illinois, without expectation of compensation or reimbursement of expenses, was in furtherancet of an activity which, for their benefit, defendants were conducting on their property: the moving of their home from one house to another. Therefore, plaintiff was not defendants’ social guest; she was their invitee. Benedict v. Podwats (1970), 109 N.J. Super. 402, 263 A.2d 486; Brant v. Matlin (Ct.App.Fla. 1965), 172 So.2d 902; Murdock v. Petersen (1958), 74 Nev. 363, 332 P.2d 649.

This status of plaintiff on their property imposed on defendants the duty to exercise reasonable care for her safety. (Blue v. St. Clair Country Club, 7 Ill.2d 359, 131 N.E.2d 31; 65 C.J.S. Negligence § 63 (45).) Whether defendants breached this duty when Paula Michaels, without plaintiff’s knowledge, placed the box on the stairway was a question of fact for the jury to determine, considering all the circumstances of the case with proper instructions from the court. (Shatkus v. Checker Taxi Co., Inc., 111 Ill.App.2d 1, 249 N.E.2d 704; 57 Am. Jur.2d, Negligence § 7.) It was also a question for the jury whether defendants’ negligence was the proximate cause of plaintiff’s injuries. (Holsman v. Darling State Street Corp., 6 Ill.App.2d 517, 128 N.E.2d 581; and see Ryan v. Harry’s New York Cabaret, 293 Ill.App. 534, 12 N.E.2d 905.) The trial judge ruled, however, and defendants argue here, that as a matter of law plaintiff was guilty of contributory negligence which barred her from recovery, even if she were defendants’ invitee.

Contributory negligence is ordinarily a question for the jury, guided by proper instructions from the court. (Olson v. Weingard, 77 Ill.App.2d 274, 222 N.E.2d 24; Swenson v. City of Rockford, 9 Ill.2d 122, 136 N.E.2d 777; 57 Am.Jur.2d Negligence, §§ 7, 295.) Each case must be determined on its own facts. (Murad v. Witek, 48 Ill.App.2d 137, 199 N.E.2d 809.) To have proved that plaintiff was guilty of contributory negligence as a matter of law, defendant had to show that all the evidence, viewed most favorably to her, so overwhelmingly established plaintiff’s negligence that no verdict in her favor could ever stand. (Maddox v. Grisham, 124 Ill.App.2d 421, 260 N.E.2d 336; Bebb v. Yellow Cab Co., 120 Ill.App.2d 454, 257 N.E.2d 164.) Contributory negligence becomes one of law only when evidence is such that no reasonable inference can be drawn from it to support a plaintiff’s conduct. Hedge v. Midwest Contractors Equipment Co., Inc., 53 Ill.App.2d 365, 202 N.E.2d 869.

At the close of plaintiff’s case, the evidence showed she had waHced up and down the stairway in defendants’ home four or five times without accident; and then, she walked down the same stairway, guiding herself by leaning against the railing, although with clothes in her arms that impeded her vision. Obviously, conflicting inferences can be drawn from this evidence. Therefore, whether the conduct described constituted contributory negligence that caused plaintiff’s injuries was a question best suited for the jury. (Compare Bozarth v. McGrath Sand and Gravel Company, (Ill.App.2d), 271 N.E.2d 374.) In our judgment, the evidence at the close of plaintiff’s case did not establish contributory negligence as a matter of law.

We conclude that the jury did not have before it, at the close of plaintiff’s case, evidence which so overwhelmingly favored defendants that no contrary verdict could ever stand. If the jury, properly instructed, had returned a verdict that plaintiff was defendants’ invitee, that she was free of negligence and that defendants’ negligence caused her injuries, such a verdict could stand. Therefore, the standard of Pedrick was not met when the trial judge sustained defendants’ motion, took the case from the jury and directed the verdict against plaintiff. This was error.

For these reasons, the judgment is reversed and thet cause remanded for a new trial consistent with this opinion.

Reversed and remanded.

SCHWARTZ, and STAMOS, JJ., concur.


author: Mr. JUSTICE GOLDBERG

text:
    Leonard Besinger, Plaintiff-Appellee, v. National Tea Company, Defendant-Appellant.
    (No. 55290;
    First District
    September 13, 1971.

      Rehearing denied October 19, 1971.

      Wildman, Harrold, Allen & Dixon, of Chicago, (William J. Lederer, Max E. Wildman and Thomas H. Snyder, of counsel,) for appellant.
    Herrick, McNeill, McElroy and Peregrine, of Chicago, (William T. McNeill, Ray W. Fick, Jr., and Robert W. Singer, of counsel,) for appellee.
   Mr. JUSTICE GOLDBERG

delivered the opinion of the court:

Leonard Besinger (plaintiff) is the sole beneficiary of a land trust which holds legal title to a large parcel of vacant land in Carpentersville, Illinois. During June of 1961, a real estate broker and attorneys commenced negotiations in his behalf with National Tea Company (defendant) in contemplation of a long-term lease of the real estate. At the termination of these negotiations, later to be examined in some detail, plaintiff filed an amended complaint in two counts. Count I sought specific performance of the alleged lease contract by defendant. Count II sought damages for breach thereof. The trial court sustained a motion to dismiss Count I. The ruling was affirmed by this court upon considerations other than the issues presently to be determined. Besinger v. National Tea Company, 75 Ill.App.2d 395.

In due course, Count II proceeded to trial without a jury. The court found the issues in favor of plaintiff and awarded damages of $154,999.94. Defendant appeals; raising primarily the issue of validity of the alleged contract. A statement of pertinent facts follows.

During the spring of 1961, an employee of defendant named Chester W. Cooke contacted plaintiff’s real estate broker. This led to various conversations and discussions. As a result, on June 12, 1961, plaintiff wrote a letter to defendant which described itself as a “commitment to lease.” The letter contained ten numbered paragraphs with general provisions of a proposed lease of the vacant property to defendant for 15 years with three five-year options and a provision that defendant was to construct a commercial building upon the vacant property. The tenth paragraph provided for inclusion in the lease of “Other provisions usually and customarily included * * *” in such documents in the Chicago area.

This commitment was followed by a telegram sent to plaintiff by defendant on July 17, 1961, which stated, “We accept your offer of June 12th with all items and conditions.” Various additional letters passed between defendant, plaintiff’s broker and plaintiff’s legal counsel. As a result, and on August 15, 1961, one of plaintiffs attorney sent Cooke an original and two copies of a proposed lease.

Plaintiff’s counsel and Cooke continued their discussions and correspondence. It was agreed that the duplicating machine owned by defendant should be used to prepare the lease for execution. Accordingly, on September 13, 1961, plaintiff’s counsel sent Cooke an original of the proposed lease reflecting all changes agreed upon to that date with the request that it be duplicated and returned to counsel, “for execution” by the client.

On October 2, 1961, Cooke sent the attorney five copies of the proposed lease for execution by plaintiff. This letter also stated, ‘When returning the leases to me for execution by our management I request that the survey referred to in the Demise Clause be attached to all copies.” Cooke signed this letter: “C. W. Cooke, Manager Real Estate Department.” This lease document contained blank spaces for signature by an undesignated person in behalf of defendant and also by its secretary and for acknowledgement of the signatures of defendant’s president and secretary before a notary public.

The finalized copies of the lease were dated October 9, 1961. Plaintiff obtained execution and acknowledgement of three copies of the lease by the officials of the corporate trustee holding legal title to the property. On October 23, 1961, plaintiff’s counsel sent three copies of the executed lease to Cooke. The letter of transmittal stated, “Please return two fully executed copies to me.”

Thereafter, conversations between the parties continued. On October 31, 1961, at the request of Cooke, plaintiff’s legal counsel sent him a letter signed by plaintiff which provided that rent would not be due under the lease until six months from October 25, 1961. This was because of, “# # * considerable delay involved in execution of the lease * * In addition, at the same time, at the request of Cooke, plaintiff’s counsel sent him a memorandum or summary of the lease completely executed by the corporate trustee.

A week or ten days later, one of plaintiffs attorneys called Cooke and inquired about the executed leases. The lawyer testified that Cooke told him that he would receive them “in the next few days.” The testimony also is that upon subsequent conversations Cooke said that the delay was caused by internal office procedures and that the leases would be forthcoming very shortly or within a few days. On the contrary, Cooke testified that he never told either of the attorneys for plaintiff that they had nothing to worry about or that the lease would be signed in due course, and returned. There is also testimony that Cooke at one time advised plaintiff himself that it would be necessary to obtain approval of the lease by the directors of defendant. In any event, regardless of the merits of these various contentions, neither the lease nor the memorandum was ever executed by defendant.

On November 20, 1961, counsel for plaintiff wrote Cooke and remonstrated against the delay in returning the executed leases. This communication reviewed a portion of the negotiations between the parties. It referred to the fact that executed copies of the lease had been promised to plaintiff’s counsel by Cooke and never received. The letter demanded delivery of the executed lease on or before November 23, 1961. No written reply to this letter was ever made and the executed leases were not returned. On December 21, 1961, counsel for plaintiff again wrote to defendant and summarized the negotiations between the parties. This letter pointed out that plaintiff had been obliged to refused another lease offer and “final demand” was made upon defendant to execute and deliver the leases.

There is also evidence that, in a telephone conversation on or about December 1, 1961, counsel for plaintiff advised Cooke that unless the signed leases were returned within five days the transaction would be terminated. On December 28, 1961, Cooke sent counsel for plaintiff a letter with which he returned the -unsigned leases. This letter made reference to the telephone conversation. Plaintiff then proceeded with other arrangements for a lease of the vacant real estate.

On appeal, defendant contends that the written commitment for lease sent to defendant by plaintiff on June 12, 1961, together with defendant’s telegram of acceptance sent plaintiff on July 17, 1961, are legally insufficient to create an enforceable contract. Defendant further contends that the final draft of the leases completely executed by the lessor together with the letter dated October 2, 1961, signed by Cooke wherein the documents were sent to plaintiff’s counsel for execution by the lessor and to be returned "for execution by our management” similarly did not create an enforceable contract because Cooke was not authorized in writing by defendant to execute the leases in questions as specified in Section 2 of the Statute of Frauds. Ill. Rev. Stat. 1969, ch. 59, par. 2. Defendant also contends that the parties never agreed to plans and specifications of the contemplated building so that the purported lease was unenforceable. The final contention of defendant is that the trial court applied an erroneous measure of damages by assessing the amount of ground rent that would have accrued under the lease until another tenant actually commenced payment of rent, in disregard of the remainder value of the building which defendant was to construct.

However, plaintiff counters with the contention that the lease agreement which defendant breached consists of the letter of commitment and the accepting telegram together with the final lease duly executed by the lessor and the letter of transmittal dated October 2,1961, signed by Cooke in defendant’s behalf. Plaintiff further contends that this lease agreement complies with the Statute of Frauds so that it is valid and enforceable. Plaintiff maintains that the failure of defendant to furnish plans and specifications constituted a breach of the lease agreement by defendant itself upon which it cannot rely for its own benefit. Finally, plaintiff urges that the measure of damages applied by the trial court was legal and proper. No point on the pleadings is raised by either party.

In our opinion, the basic and decisive issue is determination of applicability of Section 2 of the Statute of Frauds to the transaction. Plaintiff argues strongly that the Statute of Frauds, requiring written authority to the signing agent, does not apply to employees and agents of a corporation. This is based upon the unassailable premise that a corporation can act only through its agents and employees. However, plaintiff cites no authority in behalf of its position which would exempt corporations from operation of the Statute of Frauds.

Plaintiff relies heavily upon Geary v. Great Atlantic & Pacific Tea Co., 366 Ill. 625. There, the lessee sent an original and duplicates of a renewal lease for one year to the lessor by mail with the request that the copies be signed and returned. The lessor executed the leases and returned them to the lessee by mail on March 7, 1931, at 10:30 A.M. On the same day, at 1:30 P.M., the lessee sent the lessor a notice of withdrawal of the offer to lease. The court held that the renewal lease was binding upon the lessee without its actual execution. This result is based upon elementary contract law that the transmission of the leases by mail to the lessor for signature was an offer by the lessee to renew the lease and that this offer was accepted when the acceptance was posted. As a corollary, withdrawal of the offer by the lessee did not become effective until actually received by the lessor which was, of course, after acceptance of the offer. The distinction between the case at bar and Geary is immediately reached. There, the renewal lease was for a period of one year. The Statute of Frauds was not applicable by its express terms and was not considered by the court.

Defendant relies principally upon two authorities. In Potter v. Fon du Lac Park District, 337 Ill. 111, the president of the Board of Commissioners of a park district signed a contract to buy land. The Board had specifically authorized this purchase at the stated price. In a suit for specific performance of the contract, the District defended on the ground that the transaction was within the Statute of Frauds and that there was no written authorization to the president to sign the contract. The Supreme Court rejected this contention and enforced the contract. The court stated specifically that the Statute of Frauds does apply to a corporation as it does to an individual; but, since the executive officer of the corporation actually signed the contract more as principal than as agent, the contract would be enforced. This result is also supported by the resolution of the Directors for purchase of the property at the price paid. However, this exception is limited to the executive officer of the corporation. We regard this decision of the Supreme Court as determinative of the rights of the parties here. We quote the pertinent language (337 Ill. 111 at 120):

“It is next contended that the president of the park board was not authorized, in writing, to execute the contract, and that therefore the same is within the Statute of Frauds and void; that to take the case out of that statute it was necessary that defendant in error prove that a resolution was duly passed by the park board expressing the terms of the contract and directing some officer to execute the same. The Statute of Frauds applies to a corporation as it does to an individual. It may, however, sign by an agent. The contract in this case was signed, ‘Fon du Lac Park District of Tazewell county, by John C. Tjaden, its president.’ The president is the head and one of the executive officers of the park board, and in signing a contract does not do so as agent but rather as principal. The rule as to agency does not apply to an executive officer of a corporation, who is more than an agent. (Henry v. Black, 210 Pa. 245, 59 Atl. 1070; McCartney v. Clover Valley Land Co., 232 Fed. 697.) The records of the park board show that the president was directed to negotiate for the land and that the board determined to purchase it at a certain price. This is sufficient to prevent the application of the Statute of Frauds.”

The stated exception concerning a president or executive officer of a corporation does not and cannot apply to Chester W. Cooke, who signed the letter of transmittal dated October 2, 1961. Cooke was not an officer of defendant. His title was “Manager Real Estate Department.” There is no evidence of any written authority to finalize a transaction of some magnitude specifically vested in him by the directors of defendant. In the letter of October 2, 1961, he expressly stated that the lease was to be executed “* * * by our management * #

Defendant also cites and relies upon Koufman v. International Business Machines Corp., 295 F.Supp. 784. That case involved a contract for leasing for a term exceeding one year. The court refused to enforce the claimed contract which consisted in part of an acceptance signed by an agent of the corporate defendant. This decision was reached upon grounds not material here and also upon the basis of the Statute of Frauds. The marked similarity between the New York Statute and that of Illinois will appear from the following quotation of the language of the court. (295 F.Supp. 784 at 789):

“It remains to point out that the statute of frauds is a bar to plaintiff even if the documents alone were held to create a contract. The ‘acceptance’ of June 24, 1963 is signed by Roper. It is beyond dispute that he had no actual authority to contract for IBM. I would agree with plaintiff that Roper had apparent authority to do so. Under the New York statute of frauds, however, this is not enough, for General Obligations Law § 5-703(2) requires that the writing must be ‘subscribed by the party to be charged, or by his lawful agent thereunto authorized by writing’. A corporation may only act by agents. Neither Roper nor Daly was authorized in writing to contract for IBM which thus could not in any event be bound by any contract made by them to which the statute of frauds is applicable. Mondrus v. Salt Haven Corp., 270 App.Div. 1030, 63 N.Y.S.2d 205 (2d Dept. 1946), motion for leave to appeal denied 270 App. Div. 1046, 63 N.Y.S.2d 839; Goldberg v. Spruce Ridge Corp., 35 Misc.2d 253, 229 N.Y.S.2d 307 (Sup. Ct. 1962); 2 Corbin on Contracts § 526 at 781-782 (1950).”

We reach the conclusion that section 2 of the Statute of Frauds is applicable to this transaction; and, therefore, that the negotiations between the parties never reached the point of formation of a valid and enforceable contract. We have given thorough consideration and much thought to the remaining contentions of the parties as above outlined. However, in view of the decisive nature of our conclusion that the transaction is within the Statute of Frauds, all remaining questions raised have no significance and need not be answered in this opinion.

The judgment for money damages in favor of plaintiff should be and it is hereby reversed. The cause is remanded to the Circuit Court of Cook County with directions to enter a judgment for the defendant and against the plaintiff.

Reversed and cause remanded with directions.

BURKE, P. J., and LYONS, J., concur.


author: Mr. JUSTICE STAMOS

text:
    Dorothy B. Cohen, formerly Dorothy B. Alexander, Plaintiff-Appellee, v. McKey & Poague, Inc., Defendant-Appellant.
    (No. 54764;
    First District
    September 14, 1971.

      Rehearing denied October 20,1971.

      Kirkland, Ellis, Hodson, Chaffetz & Masters, of Chicago, (William D. Maddux and John M. O’Connor, Jr., of counsel,) for appellant.
    Brown, Dashow, Langeluttig, Arons & Doran, of Chicago, (Norman H. Arons, of counsel,) for appellee.
   Mr. JUSTICE STAMOS

delivered the opinion of the court:

Plaintiff, a former real estate saleswoman, brought suit against her former employer, McKey and Poague, for one-half of the real estate broker’s commission received by it from the sale of a multi-million dollar real estate development.

The jury returned a verdict in favor of defendant. However, the trial court entered judgment in plaintiff’s favor in the amount of $7,500.00 notwithstanding the verdict. The trial court also conditionally granted plaintiff a new trial in the event the judgment notwithstanding the verdict is reversed.

Defendant appeals and contends that the trial court erred in entering judgment for plaintiff notwithstanding verdict and in granting plaintiff a conditional new trial.

The evidence reveals that plaintiff assumed her duties as a real estate salesperson for defendant’s Chatham office on February 13, 1959. There was no written agreement as to the terms of plaintiff’s employment. Plaintiff testified that she was to receive a specific commission based upon what was customary; that the custom of the real estate business was to grant commissions where the salesperson produced a buyer ready, willing and able to perform; and that the commission was to equal 50% of the broker’s commission.

John Gilmore, defendant’s Chatham officer manager, testified that the 50% commission was a set custom in the office on usual business and that to earn this commission the salesperson must not only produce someone ready, whiffing and able, but also must participate in the various stages leading to the consummation of the sale. He further testified that the custom is to pay the commission to the salesperson only upon consummation of the sale after the salesperson has convinced the principals as to the advantages and economics of the transaction and reduced the agreement to a signed contract.

During February, 1960, plaintiff received a brochure from defendant as did the other sales personnel, describing for sale a certain parcel of real estate now known as Chatham Park Village which consisted of 550 living units. The property was then owned by the “Cottage 83 Company” and, at all times pertinent herein, was on an open listing originating from the brokerage firm of Heinsimer and McIntosh. After reading the brochure, plaintiff called her brother Julius Yacker, an attorney-at-law, whose firm knew of groups interested in this form of investment. Yacker became interested in the property and accompanied plaintiff to inspect it. Yacker introduced plaintiff to Marshall Tarre, who represented a group of investors. Both plaintiff and Yacker accompanied Tarre to inspect the property. Tarre became interested in the property and the parties began preliminary negotiations. During this period of time, plaintiff informed Gilmore of Tarres interest and Yackers involvement. However, the negotiations with Tarre ended when one of the chief backers of Tarre’s group withdrew. Subsequently, plaintiff heard that it was possible through new FHA legislation, referred to as section 213, to better facilitate disposition of the subject property through a new form of financing. Gilmore testified that he was the party who informed plaintiff of the new legislation. Plaintiff related her knowledge of the new legislation to Yacker who then consulted with officials of the Cooperative Housing Division of the FHA. The Cooperative Housing Advisor expressed an interest in processing the subject property and referred Yacker to Roger Wilcox, president of the Foundation for Cooperative Housing. Yacker was informed that the Foundation provided organizational sales service for cooperative housing developments. Yacker then contacted Wilcox and both he and plaintiff conducted Wilcox on an inspection of the subject property. Wilcox expressed his Foundation’s interest in the property and embarked upon further discussions with Yacker concerning the new FHA financing. After Gilmore had again been advised by plaintiff of interest in the property, he informed Yacker that because of the size and complexity of the deal, he would prefer that Yacker deal directly with him.

As the discussions progressed, plaintiff requested Gilmore to arrange a meeting between the principals. The meeting was held with Yacker, Gilmore, and representatives of “Cottage 83” and Heinsimer and McIntosh in attendance. At this meeting the “Cottage 83” group was advised of the new form of financing under FHA. Plaintiff testified that the meeting took place in April, 1960, and that she did not attend because Gilmore told her that it was not necessary. However, a letter from Yacker to Gilmore was entered in evidence relating that the meeting occurred on March 24, 1960. Moreover, Gilmore denied that he hold plaintiff not to attend. After this meeting Yacker dealt directly with “Cottage 83” due to the problems of dealing through an intermediary in a complex transaction such as this. Plaintiff had no further contact with the principals or the negotiations. However, Yacker kept plaintiff and Gilmore informed as to the progress of the transaction. Two or three weeks after the meeting “Cottage 83” agreed to submit the application to FHA for the requisite financing. Yacker was to handle the processing of the applications.

Plaintiff continued to work in defendants employ until the fall of 1960 when due to illness, she left on a leave of absence never to return. Her employment was officially terminated in December, 1960.

The Foundation and “Cottage 83” continued their negotiations through Yacker. Due to the fact that the legislation was new, a considerable amount of time and effort was expended in processing the applications with FHA. On many occasions the FHA required amendments to the application. At one time “Cottage 83” withdrew from negotiation contending that the FHA was too difficult to deal with. However, the FHA eventually agreed to finance the transaction in the amount of $4,730,-000.00 and the sale was finally consummated with title to the subject property passing in June, 1962. Yacker represented the purchasers as counsel at the closing. Title was conveyed from “Cottage 83” to Chatham Park Village Cooperative, an Illinois not for profit corporation set up by Wilcox’s Foundation.

Pursuant to an agreement dated July 31, 1961, “Cottage 83” paid both Heinsimer and McIntosh and defendant $15,000.00 each as brokerage commission. Of the $15,000.00 which defendant received, 40 per cent was paid to Gilmore with the defendant retaining 60 per cent. Plaintiff was not given any commission. Plaintiff testified that she was not aware of the July 31, 1961, agreement and that when she asked Gilmore about her commission, he stated that he knew nothing about the amount allegedly due her. Gilmore testified that this transaction was not usual business but rather a sophisticated relationship where the salesperson’s commission would be dependent upon the salesperson’s ability to participate in guiding the transaction; that he worked closely with plaintiff in the initial stages, but did not later call on her for help because she was no longer in defendant’s employ; and that since plaintiff’s contribution was minor, the bulk of the negotiations were on his shoulders.

Gilmore further testified that there was no arrangement with plaintiff as to her commission on the sale, since she left defendants employ before the July 31, 1961, agreement; that she normally would have received 50 per cent; and that she was not paid since she contributed little or no effort.

OPINION

Defendant’s initial contention is that the trial court erred in entering judgment for plaintiff notwithstanding the verdict contrary to the standard enunciated by the Supreme Court in Pedrick v. Peoria and Eastern Railroad Company, 37 Ill.2d 494, at page 510: “In our judgment verdicts ought to be directed and judgments n.o.v. entered only in those cases in which all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand.”

The jury in the present case was instructed that plaintiff had to “prove that she procured the purchaser who was ready, willing and able to purchase on the terms stipulated by owner.”

In Moehling v. Brickman, 98 Ill.App.2d 156, this court stated at page 163: “In determining whether a broker’s conduct is the procuring cause of a sale, we agree with the proposition that if a broker introduces property to a buyer who thereafter purchases the property, the broker is entitled to a commission in the absence of any intervening instrumentality which may be regarded as the effective or efficient cause of sale. (Cases cited). Where there is an intervening effective agency such as successful negotiations by another broker it follows that a broker will not be entitled to a commission merely because of his initial introduction of the property to a purchaser.”

The determination of whether plaintiff’s efforts were the procuring cause and whether there was an intervening effective agency or instrumentality were primary issues of fact for the jury. The evidence on these issues was lengthy and involved. When viewed in its aspect most favorable to defendant we do not find that it so overwhelmingly favored plaintiff that the verdict in defendant’s favor could not stand.

Therefore, we hold that the trial court erred in entering judgment notwithstanding the verdict.

Defendant next contends that the trial court erred in granting plaintiff a conditional new trial.

In Deaver v. Hickox, 121 Ill.App.2d 465, this court stated at page 471: “We are called upon to review the conditional rule of granting a new trial, chapter 110, § 68.1(6), Ill. Rev. Stat., 1967. An abuse of discretion is shown where it appears that the trial court set aside the jury’s verdict and granted a new trial essentially because it would have decided the case differently had it been the trier of fact, or because it concludes that inferences drawn by the court are more reasonable than those reached by the jury:

‘The trial court cannot substitute its inferences and conclusions of fact for those drawn by the jury if those drawn by the jury find reasonable support in the evidence’.”

We find this language particularly applicable to the present case. However, plaintiff maintains that the trial court erred in giving the instruction which required plaintiff to prove that she procured a purchaser who was ready, willing and able to purchase on the terms stipulated by the owner. The argument is not meritorious in light of the fact that plaintiff herself testified that her commissions were predicated upon the foregoing standard.

Therefore, we reverse the judgment notwithstanding the verdict and the conditional new trial and remand the cause with directions to enter judgment on the verdict.

Reversed and remanded with directions.

LEIGHTON, P.J., and SCHWARTZ, J., concur.


text:
    The People of the State of Illinois, Appellee, v. Harry Cowan, Appellant.
    (Nos. 54919, 54920 cons.;
    First District
    September 14, 1971.

      Ventrella & Witous, of Chicago, for appellant.
    Edward V. Hanrahan, States Attorney, of Chicago, (Robert A. Novelle and Arthur L. Belkind, Assistant State’s Attorneys, of counsel,) for the People.
   Mr. JUSTICE STAMOS

delivered the opinion of the court:

Defendant was found guilty and fined, after a bench trial, for operating an overweight truck and not having proper vehicle license plates in violation of Ill. Rev. Stat. 1969, ch. 95%, pars. 228, 3 — 832. Defendant appeals and contends that the trial court erred in denying his motion to suppress evidence.

At the hearing of the motion, Fred L. De Paola, the arresting officer, did not testify to any fact which would have constituted probable cause to believe that defendant’s truck was overweight, or that any other offense was being committed. At the trial on the merits however, Officer De Paola testified that he observed a red truck being operated by defendant on the Cicero Avenue overpass to the Belt Railroad tracks.

De Paola further testified that as the truck passed him its “springs were very depressed.” Upon being taken to a weighing station located at 75th and Cicero Avenue, it was determined that the weight on the rear axle of defendant’s truck was 7,050 pounds in excess of the maximum weight allowed by statute, that defendant’s truck had a gross weight of 32,050 pounds, and that the truck had on it a class H license plate. The use of class H license plates is limited to vehicles having a maximum gross weight of 24,000 pounds.

In People v. Hansen, 74 Ill.App.2d 49, this court held that when judging the weight of a vehicle, police officers may take into consideration such factors as the size of the load and the position of the truck’s springs. In the case at bar, the arresting officer did testify that he observed the springs of the defendant’s truck and that they were very depressed. There was no evidence presented to rebut this statement.

It appears from the record that contrary to the defendant’s assertion, the arresting officer did have a basis upon which to formulate a reasonable belief that the truck operated by defendant was overweight. The fact that the evidence which established this basis was elicited at the trial and not at the hearing on the motion to suppress is irrelevant in light of People v. Braden, 34 Ill.2d 516.

In that case, the defendant, prior to trial, presented a motion to suppress. That motion was denied. The basis of the motion was that the evidence in question was illegally obtained. On appeal, the Supreme Court found that the lower court erred when it denied the defendant’s motion. The court held however that the error committed was cured by the subsequent testimony which was introduced at the trial. The court stated at 34 Ill.2d 516, 520: “We conclude that since the evidence at the trial established the legality of the arrest and the search in this case, defendant cannot avail himself of any error on the motion to suppress.”

In view of the decision of the court in the Braden case, and the uncontroverted testimony relating to the depressed position of the truck’s springs, it is our opinion that defendant’s contention of an unreasonable search and seizure is without merit. We therefore affirm.

Judgment affirmed.

LEIGHTON, P.J., and SCHWARTZ, J., concur.


author: Mr. PRESIDING JUSTICE ADESKO

text:
    George N. Guerine, Plaintiff-Appellant, v. City of Northlake, et al., Defendants-Appellees.
    (No. 54584;
    First District
    September 15, 1971.

      Miller and Concannon, of Chicago, (Raymond P. Concannon, of counsel,) and Joseph B. Lederleitner for appellant.
    Donald J. Kreger, Robert M. Karton and Joseph J. Kozlowski, of Chicago, for appellees.
   Mr. PRESIDING JUSTICE ADESKO

delivered the opinion of the court:

Plaintiff, George N. Guerine, an attorney, brought an action against defendant City of Northlake and two city police officers, Marvin Davies and Charles Faciano, for attorney’s fees and costs incurred in the defense of said police officers who were charged with criminal offenses. On cross motions for summary judgment, the trial court found the issues in favor of the defendant City. Plaintiff appeals from that judgment, contending (1) that the City has an implied power to hire counsel to defend officers charged with offenses arising out of the discharge of their duties, and (2) even if the city officials lacked power to act without resolution, the City is still liable for legal fees because it acquiesced in and ratified tire result. A statement of the facts follows. (The facts repose in the pleadings, depositions and other documents filed of record.)

The complaint is by the plaintiff-appellant as an attorney against the defendant-appellee as a municipality, for fees and costs incurred in the defense of tire co-defendant police officers of the defendant City. Plaintiff alleged and deposed that the police officers became involved in a shooting incident which originated in an automobile chase with a group of youths. The officers were indicted by the State’s Attorney for aggravated battery. Plaintiff had a close relationship with the City of North-lake and its officials since he had been prosecutor for the defendant City for about 4Vz to 5 years. When told of the shooting incident by one of the officers, plaintiff told the police officer to consult the corporation counsel for a defense. The police officers told plaintiff that Henry E. Neri, Mayor of the City of Northlake, told the officers to hire an expert lawyer and the City would take care of the bill. The officers then told the Mayor of the preference for plaintiff as their attorney. Some days later, Mayor Neri came to plaintiff’s law office, told him to go ahead and defend the two officers and not to worry about it. Although a retainer was not requested, fees were discussed on the basis of the Chicago Bar Schedule. The Mayor said that he would see that plaintiff would receive something through the mail employing plaintiff as counsel. Plaintiff told the Mayor to have the officers bring him the warrants and indictment.

Plaintiff never received a letter or communication from the City or the Mayor employing him. Plaintiff told the Mayor many times that neither the City nor its Manager sent him any communication. The Mayor repeatedly told the plaintiff not to worry about it. The Mayor also told plaintiff that the City paid another attorney, John Knight, for defending Police Chief Glass on a battery charge and that plaintiff had nothing to worry about.

Meanwhile, plaintiff defended the two police officers in the circuit court and the Appellate Court. Plaintiff was successful in having the indictments against the officers quashed. The police officers were restored to their original status with back pay. Plaintiff’s bill for legal services rendered and costs amounted to $6,042.30. Plaintiff had no contract of employment with the police officers.

Plaintiff and the two police officers spoke to a few of the city councilmen about the matter. One of the councilmen stated he thought it was unfair for an officer to have to go through legal expenses much more than his salary. Plaintiff submitted his bill for fees and costs to the council before Mayor Neri and one of the councilmen were removed from office. At the council meeting, Mayor Neri stated the bill should be paid. This was seconded by a few of the councilmen. The city attorney suggested that he would study the legal aspects of the problem and that the motion should be tabled. At the next city council meeting, the city attorney stated there was no precedent in the State of Illinois for legal payment of this type of bill and that in his opinion the City was not liable for attorney’s fees. The city council abided by the opinion of the city attorney and did not pay the fees.

The issue in the case is whether the city is liable for legal services rendered to defend two of the city’s police officers as a result of certain oral assurances made by the city’s Mayor. Illinois courts have considered similar issues in the following cases:

In Stearns v. City of Zion (1911), 160 Ill.App. 414, individuals who claimed to have been elected to certain municipal offices in a contested election hired an attorney to establish their title to those elective offices through litigation. In a suit by the attorney against the city for unpaid legal services rendered to the officials, the court held that a city cannot lawfully contract to pay for legal services rendered in litigation to which the city was not a party.

In City of Chicago v. Williams (1899), 182 Ill. 135, the court held that the corporation counsel did not have a duty to defend, at the expense of the city, policemen sued for false imprisonment since the city was not a party. The court also held that the City had no right to contract for stenographic work at the same trial since a city is authorized by its charter to appropriate money for corporate purposes only.

Since these decisions, section 1—4—6 for chapter 24 of the Illinois Revised Statutes was adopted, which provides:

“In case any injury to the person or property of another is caused by a member of the police department of a municipality having a population of less than 500,000, while the member is engaged in the performance of his duties as a policeman, and without contributory negligence of the injured person or the owner of the injured property . . . the municipality in whose behalf the member of the municipal police department is performing his duties as a policeman shall indemnify the policeman for any judgment recovered against him as the result of such injury, except where in the injury results from the willful misconduct of the policeman, to the extent of not to exceed $50,000 including costs of the suit * * Emphasis ours.

This statute which provides for the indemnification of police officers by their municipalities, applies expressly to civil proceedings. Under this statute, a city cannot be held responsible for the defense of its police officers when they are charged with crimes. We are of the opinion, therefore, that the statute does not alter the principle set forth in Stearns v. City of Zion, supra, and City of Chicago v. Williams, supra, as that principle still applies to criminal proceedings against policemen. Only a change in the statute can produce a different result.

The cases cited by plaintiff are distinguishable from the instant case for major reasons. In Lindhout v. City of Chicago Heights (1917), 205 Ill.App. 511, the city council passed a resolution for the employment of an attorney for services to benefit the city and not merely third parties. In Allen v. Treat (1966), 72 Ill.App.2d 466, 218 N.E.2d 250, the municipality became obligated to pay plaintiff for certain road work performed since it was within the power of the municipality to contract and appropriate money for such services.

Section 8—1—7 of chapter 24 of the Illinois Revised Statutes provides, with regard to appropriations and resolutions, as follows:

“No contract shall be made by the Corporate Authorities or by any Committee or member thereof, and no expense shaH be incurred by any of the officers of departments of any municipality, whether the object of the expenditure has been ordered by the Corporate Authorities or not, unless an appropriation has been previously made, or any expense otherwise incurred, in violation of the provisions of this Section shall be null and void as to the municipality, and no money belonging thereto shaH be paid on account thereof.” Emphasis ours. In the instant case, although plaintiff alleges that oral assurances and

encouragements were given to him by the Mayor and various councffmen, the fact remains that no appropriation was made by the City for

the defense of the two police officers. Oral assurances cannot bind the municipality. Green v. City of Danville (1953), 350 IlLApp. 440, 113 N.E.2d 348. Because no appropriation was made by the city, plaintiff cannot recover from the city for services rendered to third parties. We appreciate the comment of the trial court in this case that “this court has the greatest sympathy for the almost impossible position of the defendant policemen in this case. Here in the bona fide performance of their police duties, they became subject to criminal indictment from which they were exonerated. Now to whom shall they turn for financial help? Of necessity they must rely upon the people of their City whom they were protecting.”

Since the statute does not impose a duty upon the City to defend policemen charged with criminal offenses and since the City did not in fact appropriate funds for the defense of the two policemen, we are compelled to affirm the judgment of the circuit court of Cook County.

Judgment affirmed.

BURMAN, and DIERINGER, JJ., concur.


author: Mr. JUSTICE BURMAN

text:
    Stanley Olipra, Plaintiff-Appellant, v. Joseph Zambelli, Defendant, (New Amsterdam Casualty Company, Garnishee-Defendant-Appellee.)
    (No. 53109
    First District
    September 15, 1971.

      Cummings & Wyman, of Chicago, (Stanley M. Cahn, of counsel,) for appellant.
    Schaffenegger & Watson, of Chicago, (Jack L. Watson, of counsel,) for appellees.
   Mr. JUSTICE BURMAN

delivered the opinion of the court.

This is an appeal from an order dismissing garnishment proceedings brought by Stanley Olipra, as a judgment creditor of Joseph Zambelli, against Zambelli’s accident liability insurer, New Amsterdam Casualty Company (hereinafter New Amsterdam).

Stanley Olipra was injured on August 10, 1952, by an explosion of fireworks as he was standing in the vicinity of 2014 West Ohio Street in Chicago, Illinois, and watching the annual parade sponsored by the San Rocco Society. As a part of the parade fireworks were set off under the supervision of Joseph Zambelli. Olipra instituted an action against the Society as the sponsor of the parade, against Zambelli as the exhibitor of the fireworks, and against the City of Chicago. On November 26, 1958, judgment was entered in the amount of $12,000.00 in Olipras favor against all three defendants, but on appeal the judgment was reversed with respect to the City of Chicago in Olipra v. Zambelli, 28 Ill.App.2d 460; 171 N.E.2d 798.

On August 4, 1964, Olipra commenced these garnishment proceedings against New Amsterdam. The court, after hearing testimony and considering argument and memoranda submitted by counsel, discharged New Amsterdam and dismissed the garnishment on the grounds (1) that the policy issued by New Amsterdam to ZambelH did not afford coverage to the accident in question, and (2) that any action based on the policy was barred by the statute of limitations.

New Amsterdam’s duplicate original of the policy involved herein was destroyed in the normal course of business prior to the commencement of the garnishment proceedings. The company, nevertheless, produced and attached to its amended answer what purports to be a reconstruction of the original policy. The reconstructed policy shows that the company insured Joseph Zambelli trading as Fazzoni Brothers Fireworks Company in the period from May 16, 1952, to May 16, 1953. The designated “purposes of use” was “Premises — Operations Coverage Only— Fireworks Exhibitions — Contractors Risk Only,” and the extent of coverage for bodily injury was $25,000.00 for each person and $50,000.00 for each accident. A separate endorsement provides:

“Location of premises
The coverage afforded by this policy applies only to fireworks displays which are described by separate endorsement forming a part of this pohcy, to be in charge of employees of Fazzoni Brothers.” Another endorsement provides with reference to August 10, 1952:
“Location of display: Hubbard Street, Chicago, Illinois on August 10,1952 (Cost of display — $1,000.00)”

We first consider whether the trial court erred in concluding that the policy only afforded coverage to Zambelli on August 10, 1952, for displays on Hubbard Street rather than for all fireworks exhibitions set off in connection with the San Rocco Society’s annual festival and parade.

Joseph Zambelli contracted to provide fireworks for the San Rocco Society’s annual parade and festival which was to be held on August 9, 10, and 11, 1952. He submitted an information form to New Amsterdam on April 12, 1952 which (1) fisted the San Rocco Society as the sponsor of fireworks displays on August 9, 10, and 11, 1952, (2) which designated the location of the displays as “Hubbard Street,” and (3) which set forth in detail the types and quantities of explosives to be used on each day of the festival. Prior to the date of the exhibition he obtained a Certificate of Fitness to conduct his business of displaying fireworks in the City of Chicago and a permit which authorized him to discharge fireworks on August 10, 1952, at 1416-1420 West Hubbard Street in Chicago. New Amsterdam issued an endorsement to its policy relating to August 10, 1952, which described the location of the display generally as “Hubbard Street, Chicago, Illinois,” but which did not restrict the location to any specific address or to any particular portion of Hubbard Street.

The primary object in the construction of an insurance policy is to ascertain the intention of the parties as expressed in the language of the contract. (Nationwide Insurance Company v. Ervin, 87 Ill.App.2d 432, 231 N.E.2d 112, Brown v. Farmers Automobile Insurance Association, 106 Ill.App.2d 360, 245 N.E.2d 260.) If the words of the policy are clear and unambiguous the court without consideration of matters extrinsic to the contract should give effect to the plain and obvious import of the language used unless such construction would lead to unreasonable or absurd consequences. (Mid-Central Mutual Casualty Company v. Spanjer, 101 Ill.App.2d 468, 243 N.E.2d 452, Allstate Insurance Company v. Conglis, 33 Ill.App.2d 370, 179 N.E.2d 434). On the other hand if the terms and provision of a policy and ambiguous and uncertain, the court, in determining the significance to be given to the ambiguous and uncertain portions, should consider the purpose sought to be accomplished, the situation of the parties, the subject matter of the contract and the circumstances surrounding the issuance of the policy. (Fierce v. Standard Accident Insurance Company, 70 Ill.App.2d 224, 216 N.E.2d 818, Clark & Company v. Fidelity & Casualty Company of New York, 220 Ill.App. 576.) Ambiguous provisions or equivocal expressions in policies should be construed strongly against the insurer, who drafted them, and in case of ambiguity a reasonable construction of the language which affords coverage to an insured should be adopted. Lenkutis v. New York Life Insurance Company, 374 Ill. 136, 28 N.E.2d 86, Michigan Mutual Liability Company v. Hoover Brothers, 96 Ill.App. 2d 238, 237 N.E.2d 754.

For many years prior to 1952, the San Rocco Society had sponsored a festival and parade to raise funds for its activities. This festival and parade utilized a nearly identical format each year, and the route followed by the parade in 1952 was the same as it had been in earlier years. Joseph Zambelli contracted with the Society to provide fireworks at the 1952 parade and festival as he had done in the years immediately preceding. After concluding this contract, he specifically informed Amsterdam before the policy was issued that he would display fireworks for the Society on August 9, 10, and 11, 1952, and described and designated the types and quantities of fireworks which were to be discharged.

The only permissible inferences which can be drawn from these facts is that Zambelli reasonably expected to be afforded coverage under his policy of insurance for all his activities in connection with the San Rocco Society’s parade. It makes little sense for Zambelli, whose object was to protect himself against the risks inherent in his trade, to seek coverage which extended only to a single street, the length of which is not disclosed in the record, when the route of the parade and the location of the exhibition had been the same for many years. New Amsterdam knew the type and quantity of fireworks which were to be discharged and it knew or should have known the type of risk against which Zambelli sought to insure himself.

In view of the facts and circumstances presented in this case we construe the ambiguous endorsements to the policy relating to August 10, 1952, as providing coverage for all accidents arising out of Zambelli’s operations along the route usually followed by the Society’s parade.

We next consider whether an action against New Amsterdam based on the insurance policy was barred by the statute of limitations. Stanley Olipra was injured on August 10, 1952, and he filed suit against Zambelli and others on September 17, 1952. On December 8, 1952, New Amsterdam, in response to inquiry by Zambelli’s attorneys, replied by letter that it denied liability for the accident involving Olipra and refused to assume Zambelli’s defense. Judgment was entered against Zambelli on November 26, 1958, and these garnishment proceedings were filed on August 4, 1964.

An action based on a written contract must be commenced within ten years after the cause of action accrued. (Ill. Rev. Stat., 1963, ch. 83, par. 17.) New Amsterdam contends that Zambelli’s cause of action against it arose on December 8, 1952, when it denied liability under the terms of the policy. We disagree.

Under the terms of the policy New Amsterdam agreed “to pay on behalf of the insured all sums which the insured shall become obligated to pay by reason of liability imposed upon him by law for damages * * * because of bodily injury s * * caused by accident and arising out of the hazards hereinafter defined.”

Condition 12 of the policy provides that:

“[n]o action shall lie against the company . . . until the amount of the insured’s obligation to pay shall have been finally determined either by a judgment against the insured after actual trial or by written agreement of the insured, the claimant, and the company.”

It is clear Rom the terms and conditions of the policy that no action would lie against the company either by the insured or by a judgment creditor of the insured until the liability of the insured became fixed either by judgment after trial or by written agreement. Zambelli’s liability to Olipra became fixed on November 26, 1958, when judgment was entered in the amount of $12,000.00. Olipra commenced these garnishment proceedings within six years after the rendition of judgment, and consequently the proceedings were not barred by the applicable statute of limitation.

For the foregoing reasons, the judgment order discharging New Amsterdam and dismissing the garnishment proceedings is reversed. The cause is remanded with directions to enter judgment in favor of Stanley Olipra and against New Amsterdam Casualty Company for the sum of $12,000.00 plus interest thereon from November 26, 1958, as provided by statutes, together with plaintiff’s costs.

Reversed and remanded with directions.

ADESKO, P. J. and DIERINGER, J. concur.


author: Mr. JUSTICE McGLOON

text:
    Metro Inter-Insurance Exchange, Plaintiff-Appellant, v. Dolton Anthony et al., Defendants-Appellees.
    (No. 54058;
    First District
    September 23, 1971.

      Alvin E. Rosenbloom, of Chicago, for appellant.
    Anthony Caliendo, of Chicago, for appellees.
   Mr. JUSTICE McGLOON

delivered the opinion of the court:

The record indicates the facts giving rise to this appeal. The defendant, sometime prior to May 29, 1967, contacted Mr. Frank Pesir, an insurance broker doing business under the name H. G. Bruekner Insurance Agency, and requested a meeting for the purpose of discussing liability insurance coverage for the defendant. Subsequently, Pesir visited the defendant at his home. There is some dispute as to what precisely occurred during this visit. The defendant testified that he told Pesir he wanted insurance to cover all the equipment in his landscape business, specifically a IVz ton truck and a trailer that was used therewith to carry tools et cetera. According to the defendant, he took Pesir outside to view the equipment. Pesir testified that the defendant at no time mentioned the trailer and that he did not see any of the equipment prior to placing the policy in question. Thereafter, Pesir contacted the All-Risk Insurance Agency seeking to place a liability policy, covering only the truck. All-Risk contacted the O.K. Insurance Agency who, in turn, contacted and placed the policy with Metro Inter-Insurance Exchange.

On May 29, 1967, Metro issued an automobile liability insurance policy covering only the defendant’s truck and not the trailer. Further, the policy contained a definitional clause as to the word “automobile” as follows:

“* * * the word “automobile” means:
(2) Trailer — under coverages A, B and division 1 of coverage C (These were the Bodily Injury, Property Damage and Automobile Medical Payment clauses respectively), a trailer not described in this policy, if designed for use with a private passenger automobile, if not being used for business purposes with another type automobile, and under division 1 of coverage C if not a home, office, store, display or passenger trailer; * *

The policy also contained as part of its exclusion section a clause as follows:

“This policy does not apply:
(C) Under coverages A&B, while the automobile is used for the towing of any trailer owned or hired by the insured and not covered by like insurance in the company; or while any trailer covered by this policy is used with any automobile owned or hired by the insured and not covered by like insurance in the company.”

Subsequently, an endorsement or rider was added to the policy which afforded coverage for Bodily Injury, Property Damage and Automobile Medical Payments only so long as the insured vehicle was used exclusively within a 50-mile radius of the city limits where such vehicle was principally garaged, except for occasional personal, pleasure or family use.

Thereafter, on June 21, 1967, the defendant while driving his truck with the trailer in tow was involved in an accident in which injury was caused to the occupant of another vehicle who brought suit against the defendant. The plaintiff filed an appearance on behalf of the defendant and then filed this declaratory judgment action seeking a determination that it is not bound to afford coverage to the defendant since he was pulling a trailer at the time of the accident and hence was excluded from coverage under the express provisions of the policy. The trial court held against the plaintiff and for the defendant.

On appeal the plaintiff raises two issues: first, that Pesir was not an agent of Metro under the facts of this case, and second, that the exclusionary provision contained in the policy of insurance is valid and binding and denies coverage under the facts of this case.

We reverse.

With regard to the plaintiffs first argument that Pesir was not the agent of Metro, the defendant argued that in fact Pesir was Metro’s agent and, therefore, since Pesir allegedly knew about the trailer and the defendant had requested coverage for all his equipment the insurance company is responsible for the error of its agent in not providing coverage for the trailer. We must agree with the plaintiff.

In Vassel v. Underwood (1967), 85 Ill.App.2d 222, 229 N.E.2d 354, this court held that an insurance broker is the agent of the one who employs him. In France v. Citizens Casualty Co. of New York (1948), 400 Ill. 55, 79 N.E.2d 28, the Illinois Supreme Court supported this principle adding that the broker remained the agent of the one employing him even though he received his compensation from the insurance company or their agent.

Here the facts are undisputed that the defendant contacted and requested Pesir to secure new insurance coverage for him. Other factors in evidence on the agency, while not determinative, strengthen our conclusion as to Pesir s non-agent status. Pesir at no time dealt directly with Metro but sought to place the policy through the All-Risk Agency who in turn contacted the O.K. Insurance Agency who placed the policy through Metro. The comptroller of Metro testified the company had never done any previous business with Pesir. Therefore, we conclude that Frank Pesir was the agent of the defendant-insured and not an agent of Metro.

Accordingly, even if we assume that Pesir did know of the trailer and was told to insure such by the defendant, such knowledge or statements would not be imputed to Metro so as to be binding upon them. Kobzina v. Empire State Ins. Co. (1937), 289 Ill.App. 157, 6 N.E.2d 895, Kenilworth Insurance Co. v. Chamberlain (1971), (Ill.App.2d, 269 N.E.2d 317.

Since we are reversing the trial court, the treatment of the one pivotal issue would generally be sufficient. However, to insure understanding of our position we will respond to the remaining issue raised by the plaintiff, namely whether the exclusion clause of the policy applies here. The plaintiff argues that no coverage can be afforded to the defendant in this case because his towing the trailer at the time of the accident in question resulted in exclusion of coverage under the express terms of the policy. We agree that the exclusion clause is applicable. The trailer was not described in the policy and was admittedly being used for business purposes. Either one of these facts would make the exclusion clause applicable.

The defendant has argued that the subsequently attached endorsement or rider somehow converted the policy to a “commercial policy” seemingly on the basis that the title language at the top of the rider was “Commercial Automobile — Local.” this being the case, the defendant alleges that the definitional clause we cited earlier is changed by implication to include as insured vehicles, trailers designed for use with commercial rather than private passenger vehicles. Further, the language “being used for other than business purposes” would by implication now read “being used for business purposes.” We cannot agree with the defendant’s position. There is nothing in the record or otherwise to support this construction being given to the rider. In general where a contract of insurance consists of policy and other papers or documents such as a rider, they must be construed together in order to determine the meaning and effect of the insurance contract. (Konrad v. Hartford Accident & Indemnity Co. (1956), 11 Ill.App.2d 503, 137 N.E.2d 855.) If there is any conflict between the provisions of the policy proper and the provisions of the attached rider or endorsement, the rider or endorsement will control. (Littrall v. Indemnity Insurance Co. of North America (1962), 370 U.S. 919.) In the case at bar the endorsement can be construed consistently with the terms of the policy with no conflict or ambiguity. The endorsement simply makes more specific the limitations on the coverage afforded to the defendant insured, i.e. he must be using the insured vehicle within 50 miles of the place where it is principally garaged. There is no language to indicate that any change in the nature or type of policy is intended.

Parenthetically, we note that defendant in his discussion of the exclusion clause argues that the location of the clause was not so prominently located in the policy as to avoid any question of ambiguity regarding the parties’ intent. The defendant did not raise this argument in the trial court and will not be heard to make it now.

Judgment reversed.

McNAMARA, P.J., and DEMPSEY, J., concur.


author: Mr. JUSTICE CREBS

text:
    The People of the State of Illinois, Appellee, v. Lawrence Johnson, Appellant.
    (No. 70-119;
    Fifth District
    October 1, 1971.

      Morton Zwick, of Defender Project, of Chicago, (Paul Bradley, and Kenneth L. Gillis, of Defender Project, of counsel,) for appellant.
    Richard E. Richman, State’s Attorney, of Murphysboro, for the People.
   Mr. JUSTICE CREBS

delivered the opinion of the court:

In a bench trial in the Circuit Court of Jackson County, Lawrence Johnson, the defendant, was convicted of aggravated battery and theft of less than $150. He was sentenced to the penitentiary for a term of not less than one nor more than three years. Confining his appeal to the battery conviction, he contends that the trial court erred in not exonerating him on his theory of self-defense, that the sentence imposed was excessive and that he was entitled to probation.

At the time of the incident, on February 24, 1970, defendant was 18 years of age and in the last semester of his senior year in high school. Admittedly he threw a brick at John Wíttenborn, a teacher-coach, causing a two-inch laceration of his skull requiring 12 stitches to close. The facts leading up to the incident are in conflict. Wittenborn testified that about 4:00 o’clock in the afternoon he was coaching the freshman basketball squad in the gymnasium when he noticed the defendant in the hall. Remembering that he had failed to lock the locker room which was immediately below the gym, he went downstairs and encountered the defendant coming out of the locker room with a biHfold in his hand. After inquiry defendant first stated that it was his bülfold but then after handing it to Wittenborn he accused another boy, Calvin Collier, of stealing it. Collier, a friend of defendant, immediately stated, “That wasn’t me that stole it. That was you. Don’t try to blame me.” The coach then informed the boys that there had been quite a few thefts lately in the school and that he had finally caught somebody and they would have to go to the assistant principal’s office. Defendant stated he was not going anywhere and started to walk off. The coach grabbed his arm but defendant jerked away. Then the coach saw two other students who had come by and he asked them to get Mr. Bowers, the assistant principal. He again caught defendant by the shoulder and defendant started swinging, broke loose, and headed down the corridor. At this point defendant picked up a brick door-stop and threw it at Wittenborn, hitting him behind the left ear and causing him to faH to his knees. After a few moments Wittenborn went outside where Mr. Bowers was holding the defendant and he walked up to defendant and wiped his bloody hand across defendant’s face saying, “Look what you did now, you damn jerk.” On cross-examination Wittenborn stated that he was a former professional football player and that he weighed 240 lbs. and was 6T" in height.

A boy on the basketball team testified that the wallet was his, that he had left it in his pants in the locker room and had given no one permission to take it. Mr. Bowers testified that as assistant principal he was in charge of discipline at the school, that Wittenborn was on his knees when he arrived, bleeding profusely, and that he heard, but did not see, the thud of the brick. Bowers caught up with defendant outside and was holding him by the arm when Wittenborn came out holding a bloody towel to his head. He stated that Wittenborn did not hit defendant but he did wipe his bloody hand across defendant’s face.

Testifying for the defense, Mark Hunter, another student, testified that defendant entered the locker room looking for Calvin Collier, that the coach and defendant came out of the locker room and both of them were carrying biHfolds. When defendant started to walk off the coach grabbed him by the collar and threw him to the floor and when he got up the coach slapped him and hit him on the jaw with his fist and it was then that defendant threw the brick. Hunter also testified that he was outside when the coach came up and once again hit the defendant in the face with his fist and that he did not just wipe blood on his face. Defendant testified that he went to the locker room looking for CoHier as he had his wallet; that the waUet defendant had in his hand when he came out was his own wallet; that the coach did not take the stolen waUet from him nor did he give it to him. Defendant stated further that he did not want to go to the principal’s office because he had not done anything and when he tried to walk away the coach slapped him, threw him to the floor and punched him in the face with his fist. He threw the brick to keep the coach from “further molesting and aggravating me.” When he was outside with Mr. Bowers he stated that the coach again hit him in the face with his fist and he denied that the coach merely wiped blood on his face, stating there was only a small spot of blood under his eye which came from the coach’s fist. Collier, the boy whom defendant accused of the theft, did not testify.

On rebuttal a police officer testified that he saw defendant immediately after the incident and that defendant’s forehead, nose and cheek were streaked with blood but that he had no lacerations. An assistant State’s Attorney stated that he saw defendant about a half hour later and he had dried blood on his forehead, down his nose and on his cheek, but that he had no marks or bruises on him. Close-up photographs of defendant taken the following day clearly showed no marks or blemishes on defendant’s face.

We agree with defendant’s argument as quoted from People v. McClain, 410 Ill. 280, that the test in self-defense is not what the jury thinks a reasonable man would believe but rather what the defendant, as a reasonable man, believed. But it is equally well settled that where the testimony of the accuser and the accused, and their supporting witnesses, is conflicting the issue is largely a question of determining the credibility of the witnesses and the weight to be given their testimony, and this determination is one properly to be made by the trier of the facts and not by a court of review. (People v. Potts, 403 Ill. 398; People v. Jeffries, 120 Ill.App.2d 39.) Here, defendant in effect argues that the very size of the coach and the fact that he was a former professional football player put him in fear of great bodily harm justifying the brick throwing. This well might be true if the rest of defendant’s story were accepted as credible, i.e., that the coach threw him to the floor, slapped him, hit him in the face with his fist and then again hit him while he was being held by the assistant principal. Apparently the the trial court did not accept this version of the incident, preferring to believe that the coach was merely trying to lead the boy to the assistant principal’s office for whatever disciplinary action might be taken, and that the coach did not hit him either before the brick was thrown, or afterwards as defendant was being held by Mr. Bowers. Had he been hit, surely the results would have been evident to the witnesses and to the camera. We agree with the trial court’s decision and find that defendant was proved guilty beyond a reasonable doubt and that defendant’s action was not taken in self-defense. While we do not condone Mr. Wittenbom’s action in wiping blood on defendant’s face, it is not beyond understanding, and, in any event, it has no bearing on defendant’s guilt or innocence but only further accentuates the disparity between defendant’s story and that presented by the State.

At the hearing in mitigation and aggravation it was determined that defendant was 18 years of age, that he lived at home with his mother and older brother and that his father and another brother were presently confined on a homicide charge. He was expelled from school after the incident and while out on bond pending his trial he worked nights at the Phelps Dodge plant earning approximately $50 a week, half of which he gave to his mother to help with her support. His only former record was a disorderly conduct charge. A representative of the Community Development Service connected with Southern Illinois University testified that she believed the defendant was anxious to finish his last semester in high school, that he was scholastically capable, had good motivation and that he was a good subject for rehabilitation. She further stated that she could arrange to have him enrolled in the Carbondale Community High School which takes part in the Delinquency Intervention Program supported by the Illinois State Department of Public Instruction. In this program he would be provided with a counselor and directed toward initiating and maintaining an adaptive behavior.

Under the circumstances present here we consider this case an appropriate one for a reduction of sentence under the authority granted courts of review by Supreme Court Rule 615(b)(4) (Ill. Rev. Stat. 1969, ch. 110A, par. 615(b)(4).) As we stated in People v. Haynes, (Ill.App.2d) Agenda 70-122, the purpose of modern day penology is the rehabilitation of the offender and an appropriate sentence is one which has the greatest potential of restoring one to a useful and productive place in society while at the same time adequately punishing the offender for his misconduct and safeguarding the public from further offenses. Defendant’s offense was a serious one but he has already been confined for more than a year and we believe he has been adequately punished. He is approaching his 20th birthday and the sooner he is released the better chance he will have to finish high school and achieve a normal rehabilitation as an individual and as a productive man in society.

Accordingly, the judgment and sentence of the Circuit Court of Jackson County are hereby modified and defendant’s sentence is reduced to a minimum of one year and a maximum of the time already served on his present conviction. As so modified the judgment is affirmed.

Judgment affirmed as modified.

EBERSPACHER and MORAN, JJ., concur.