author: CULBERTSON, J.

text:
    People of the State of Illinois, Plaintiff-Appellee, v. James Myers, Defendant-Appellant.
    Gen. No. 67-30.
    Third District.
    May 3, 1968.

      Robert E. White, of Ottawa, for appellant.
    Robert E. Richardson, State’s Attorney of LaSalle County, of Ottawa, for appellee.
   CULBERTSON, J.

Defendant, James Myers, was tried by a jury in the magistrate division of the Circuit Court of LaSalle County and was found guilty of knowingly resisting or obstructing a peace officer, (Ill Rev Stats 1965, c 38, par 31-1), and of reckless conduct. (Ill Rev Stats 1965, c 38, par 12-5.) For each offense he was sentenced to serve a period of one year on a penal farm, the sentences to run concurrently. He has appealed, contending that he was not proved guilty of either charge beyond a reasonable doubt, and that other errors require reversal.

From the record it appears that defendant returned to his rural home at about 8:00 p. m. on July 16, 1966, after having spent much of the day drinking in various taverns in and around the City of Ottawa. He became embroiled in an argument with his wife and, by his own admission, discharged a shotgun in an effort to drive her away from the home. When this occurred, the wife and the couple’s four children fled to the home of a neighbor, and a report was made to the sheriff’s office that defendant was shooting at his wife and children with a shotgun. Shortly thereafter, a sheriff’s car manned by deputies William Dummett and Wayne Hess came to the Myers’ residence. Defendant would not open the door, or come out, but talked to Dummett through a screened window. He told the officer to talk to the wife about the domestic difficulties, and when Dummett replied that they would have to come back and get him if the wife signed a complaint, defendant profanely told them to go ahead and get a warrant. According to the officers, defendant was very belligerent and gave the impression that he had been drinking.

Immediately following the conversation with defendant, the officers drove to the neighbor’s house, some 40 to 60 rods away, where defendant’s wife signed a complaint against him for disorderly conduct and cautioned the officers to be careful. Upon their return to the Myers’ home they got no response when they knocked on the doors and called through the open window. Thereafter, they employed a mechanical device, commonly referred to as a bullhorn, and periodically called out to defendant that they had a warrant and had to take him in. Other sheriff’s officers and state troopers came to the scene and an effort was then made to force defendant out of the house with tear gas. When one of the canisters of gas fell into a waste basket and started a fire, deputy Linton Bowers donned a gas mask, entered the house and extinguished the blaze. While there he searched the downstairs rooms but found no trace of defendant. Following this, Hess put on an air pack and he and Bowers, with guns drawn, searched the upstairs rooms where they discovered defendant in a closed bedroom, lying on the floor behind a bureau. Defendant testified that he was lying on the floor to escape the effects of the tear gas and, while defendant denied it, the officers testified a rug had been placed across the base of the door to the bedroom.

According to the officers, defendant, upon being discovered, pushed the bureau over and rushed at them, whereupon they seized his arms, advised him they had a warrant for his arrest and, after some tussling and argument, pushed him toward the stairs. By the defendant’s version, the bureau was knocked over accidentally and he put up no resistance when he was handed a warrant.

As the trio went down the stairs, described as being narrow, defendant was in the lead, Hess was next and was holding his gun at defendant’s back, and Bowers was behind Hess. Under circumstances later to be detailed, and which form the basis for the charge of reckless conduct against defendant, Hess fell backward on the stairs causing his gun to discharge a bullet that struck Bowers in the leg. When this occurred defendant ran outside the house and was seized by other officers who testified that defendant kicked and fought, and that it took three men to subdue him and to place him in handcuffs. Defendant denied that he had resisted arrest, but testified he was forced to defend himself against overzealous manhandling by officers who were angered because one of their number had been shot.

Defendant’s contention that the State failed to prove him guilty beyond a reasonable doubt of knowingly resisting a peace officer is based on two arguments. First, that the evidence shows he was too intoxicated to be capable of having the knowledge requisite to the

crime; and, second, that he did not resist but was, in fact, exercising his right of self-defense against unlawfully excessive force exerted by the arresting officers. Both issues, however, were for the jury to determine and we see no basis for disturbing its judgment in either respect. (People v. McGuire, 18 Ill2d 257, 163 NE2d 832; People v. Walsh, 28 Ill2d 405, 192 NE2d 843; cf. People v. Evrard, 55 Ill App2d 270, 204 NE2d 777.) Even if it be assumed defendant was intoxicated, there was ample evidence from which the jury could conclude that his intoxication was not so extreme as to render him incapable of knowing what he was doing. He was in sufficient possession of his faculties to recognize Drummett as a police officer when the latter first arrived, to know that he could not be arrested without a warrant, and to avoid the effects of the tear gas by lying on the floor and sealing the door with a rug. Furthermore, the record discloses he was able to remember each tavern he had been in, and that he was able to recount in detail his actions and conversations before, during and after his arrest. (Cf. People v. Strader, 23 Ill2d 13, 177 NE2d 126; People v. Gallegos, 80 Ill App2d 105, 224 NE2d 631.)

On the matter of whether defendant was resisting or merely defending himself when he was finally taken into custody, the evidence was in conflict. The jury was the judge of the credibility of the opposing witnesses and of the weight to be accorded their testimony. And if the jurors believed the officers, as they obviously did, the evidence was sufficient to establish defendant’s guilt of resisting beyond a reasonable doubt.

Returning to the events on the stairs, and to defendant’s claim that he was not proved guilty of reckless conduct beyond a reasonable doubt, Hess testified as follows: That defendant was giving him a “hard time” as they were coming down the stairs; that he prodded defendant with his gun when the latter slowed down; that defendant turned suddenly and struck the witness in the chest, causing him to lose his balance and fall backwards; that he, Hess, then tried to strike defendant with the gun; that their bodies then came together; and the gun discharged. Defendant, for his part, denied that he had touched or attempted to attack Hess and testified that he had merely turned to ask a question. He argues here that the mere act of turning could at best be only a negligent act, for which there could be no criminal liability, and theorizes that Hess lost his balance because of the bulky air pack equipment he was wearing. In addition, it is argued as being improbable and beyond belief that defendant would have attempted an attack on Hess with a gun in his back. Bowers testified that he saw defendant turn and lunge at Hess, but conceded that his position on the stairs did not permit him to see if there was actual physical contact between the men.

Section 12-5 of the Criminal Code defines the crime of reckless conduct in these words: “A person who causes bodily harm to or endangers the bodily safety of an individual by any means, commits reckless conduct if he performs recklessly the acts which cause the harm or endanger safety, whether they otherwise are lawful or unlawful.” (Ill Rev Stats 1965, c 38, par 12-5.) Again in section 4-6 of the Code, the term “recklessness” is defined in this manner: “A person is reckless or acts recklessly, when he consciously disregards a substantial and unjustifiable risk that circumstances exist or that a result will follow, described by the statute defining the offense; and such disregard constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation. . . .” (Ill Rev Stats 1965, c 38, par 4-6.) Defendant contends that he was not proved guilty of reckless conduct as it is defined in the Code, and further that the evidence fails to show that his purported conduct was the effective and efficient cause of Bowers’ injury.

We find little merit to these contentions which, in the first instance, are predicated on the premise that defendant did no more than to turn on the stairs to ask a question. Taking into consideration the testimony of Hess, the statement of Bowers that defendant lunged at Hess and the entire pattern of defendant’s conduct throughout the incident, there is credible evidence from which the jury could find, as it did, that defendant did assault Hess on the stairs. And having made that finding, it was also the function of the jury, under proper instructions from the court, to determine if defendant’s conduct was reckless within the meaning of the Code, and whether there was causal relation to the injury that did occur. We see no basis in the record which would permit us to disturb the jury’s conclusions in these matters. In our opinion, reasonable men would agree under the circumstances that defendant was aware that an attack on Hess created a substantial risk of bodily harm to the officers, and that his disregard of such risk constituted a gross deviation from the standard of care fixed by section 12-5. Similarly, a jury of reasonable men could conclude from the evidence that defendant’s act was a direct cause of the injury that followed.

As the first of purported trial errors advanced as grounds for reversal, it is argued that the trial court improperly admitted evidence of a crime other than the one for which defendant was being tried when it permitted testimony concerning the fact that defendant’s wife had signed a complaint charging him with disorderly conduct. While we are familiar with the rule upon which defendant relies, (see: People v. Tranowski, 20 Ill2d 11, 169 NE2d 347; People v. Brown, 64 Ill App2d 203, 212 NE2d 275), it has no application here. Section 31-1 of the Criminal Code, under which defendant was charged with resisting a peace officer, requires as one of its elements that the peace officer be engaged in “any authorized act within his official authority.” This being so, testimony that the officers were acting under a valid complaint and warrant was relevant to the issues of one of the crimes for which defendant was being tried. Within this point of argument defendant also complains of the testimony of a witness who testified to a conversation in which the wife of defendant related that her husband was after her with a gun. Although we believe it was improper to admit such testimony, no prejudice to the defendant resulted. Other competent evidence in the record established that the police were called because defendant was shooting at his wife and children, and defendant himself testified he had fired a shotgun in an effort to frighten his wife away from their home.

The day following defendant’s arrest a shotgun and a box of shotgun shells were found, respectively, in an upstairs closet and the kitchen at his home and taken into custody by the sheriff. At the trial they were introduced into evidence by the prosecution over defendant’s objection that the chain of possession from the time of seizure until trial had not been established, and that contention is renewed here. We agree with the trial court that it is without merit. The record conclusively discloses that the articles were identified as those taken from the defendant’s home, and that they were in the sheriff’s possession continuously up to the time of trial. In this court defendant also objects that the exhibits had no relevancy to the crimes for which he was being tried. It is axiomatic, however, that objections to the admission of evidence not made in the trial court will not be considered on appeal. (People v. French, 33 Ill2d 146, 149, 210 NE2d 540; People v. Witherspoon, 27 Ill2d 483, 190 NE2d 281; People v. Collins, 25 Ill2d 302, 185 NE2d 147.)

When two character witnesses for defendant were cross-examined, the prosecutor, over objection by-defendant, was permitted to inquire specifically into defendant’s use of intoxicating liquors, and to ask whether he was the kind of man who would chase his wife out of the house with a shotgun. It has long been held that the reputation of a person cannot be impeached by particular acts of bad conduct (People v. Page, 365 Ill 524, 528, 6 NE2d 845; People v. Anderson, 337 Ill 310, 331, 169 NE 243; People v. Hermens, 5 Ill2d 277, 286, 125 NE2d 500), and we are inclined to agree that the cross-examination here exceeded proper limits. At the same time, however, it cannot be said that defendant was prejudiced to such a degree as to deny him a fair trial. Prior to the jury’s exposure to such line of questions, the defendant, his wife and a bartender called as a witness for the defense had already given extensive testimony on the subject of defendant’s use of liquor and his history for intoxication. Similarly, the jury was already aware from defendant’s own testimony that he had fired a shotgun to frighten his wife away from their home. Under the circumstances, the cross-examination of the character witnesses about the same specific acts of conduct could have had no new or compelling influence on the jury.

Defendant made a motion for probation and it is now contended that its denial by the trial court was an arbitrary and unauthorized exercise of discretion which is subject to review. (See: People v. Molz, 415 Ill 183, 189, 113 NE2d 314; People v. Donovan, 376 Ill 602, 606, 35 NE2d 54.) Specifically, it is defendant’s claim that certain remarks of the trial court are to be interpreted as showing that probation was denied as a means of punishing defendant for exercising his right to trial by jury instead of pleading guilty. (Cf. United States v. Wiley, 7th Cir, 278 F2d 506.) Although we feel the court did indeed make some ill-advised remarks in assessing defendant’s pre-trial and post-trial remorse and in commenting that defendant had gambled on a trial and had lost, we do not believe he arbitrarily denied probation because defendant had failed to plead guilty. Particularly is this true since the court stated in his remarks: “That is not to say that a person should never be granted probation if he refuses to plead guilty, because under the Constitution everyone is entitled to the cloak of innocence until proven guilty.” Furthermore, an examination of the court’s comments in their entirety indicates that the denial of probation was predicated on the evidence presented at the hearing on aggravation and mitigation, and upon the nature of defendant’s misconduct disclosed by evidence at the trial.

For his final contention defendant asserts that the sentences imposed by the trial court were unduly severe and excessive, and asks that we reduce them as authorized by Rule 615 (b) (4) of the Illinois Supreme Court Rules. (Ill Rev Stats 1967, c 110A, par 615 (b) (4).) Undoubtedly courts of review in this jurisdiction have the power to reduce sentence where justice requires it, or where it clearly appears that a penalty is not proportioned to the nature of the offense. (People v. Miller, 33 Ill2d 439, 211 NE2d 708; People v. Watts, 81 Ill App2d 283, 225 NE2d 147; People v. Carroll, 76 Ill App2d 9, 221 NE2d 528.) Seeking to create an injustice which would cause us to act, defendant argues that his sentences were increased because the trial court was displeased with defendant for having exercised his constitutional right to plead not guilty and demand a trial by jury. We find nothing in the record to support such a claim, nor has anything been brought to our attention by defendant. The sentences were within the limits prescribed by law and, upon a consideration of the entire record, we cannot say that they were disproportionate to the offenses committed or that the trial court abused its discretion in such matter.

The judgment of the Circuit Court of LaSalle County is affirmed.

Judgment affirmed.

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


source: Caselaw Access Project

author: SCHEINEMAN, J.

license: Public Domain

text:
    Martha Gunn, Appellant, v. Klean-Rite Cleaners, Inc., a Corporation, Appellee, and Borg Warner Corporation, a Corporation, Appellee.
    Gen. No. 67-36.
    Third District.
    May 3, 1968.

      Cunningham, Greenberg & Janssen, of Peoria, for appellant.
    Heyl, Royster, Voelker & Allen, and Smith, Whitney & Church, of Peoria, for appellees.
   SCHEINEMAN, J.

Martha Gunn filed this suit claiming damages for personal injuries she incurred while using a washing machine in a “Laundromat” owned and operated by the defendant, Klean-Rite, Inc. She alleged the machine she used was manufactured by the other defendant, Borg Warner Corporation.

The type of machine involved operates in cycles controlled by a timer. When the starting lever is pushed, the timer causes water to flow into the machine and there follows a ten-minute period of agitation by an oscillator. Then there is a minute pause. Thereafter the wash water is drained out and clean water rinses the clothes for about eight minutes. There follows another one-minute pause, then the agitator goes into a rapid spin to extract the rinse water. When the cycle is complete the machine stops automatically. There is no switch to stop it otherwise. There is a coin slot and the cost of one complete operation is 20 0. There were also three lights on the machine, one for each phase of the cycle.

The plaintiff testified that, on the day of her injury, she had loaded the machine and started it, after putting two dimes in the slot. Then she went outdoors for awhile, it being quite warm inside. Upon returning she observed the machine was not in operation and the lights were out. She read a sign on the wall, repeated on the machine which read: “If lights go out and machine stops during cycle, open door, rebalance load (distribute clothes evenly around agitator) and push down red button at top left side of machine.”

After reading the instructions she looked for someone to help her, but there was no employee on duty. She lifted the lid and began to redistribute the clothes as directed when the machine went into its spin phase in reverse, catching her hand and causing injury to her hand, arm and shoulder.

The president of the local company testified the Norge machines were acquired secondhand from a New York company. At the time of this incident they had been in use about four years which is considered their normal useful life. They were in the process of being junked and replaced by another make.

At the time, there were eight new machines in the place and the witness thought from the plaintiff’s description of the location where she was injured, that she had been at one of these new machines, not a Norge. The remaining Norge machines were junked in some period of weeks, and none was available for inspection or production at the trial.

The complaint in this case consisted of five counts. The first three were against Borg Warner and the next two against the local company. Count I charged that Borg Warner was negligent in the design and manufacture of the washing machines referring particularly to the lack of adequate guards and safety devices, meaning there was no switch to stop the machine and no automatic cutoff when the cover was open. Also it charged defendant failed to make reasonable inspections and failed to warn plaintiff of the defects and hazards.

Count II was based on warranty, charging defendant had warranted the machines were of merchantable quality and fit for their intended purpose, but they were not. Reference was again made to the lack of safety devices.

Count III was a products, strict liability charge, based on an unreasonably dangerous condition when originally sold by defendant, again speaking of the lack of adequate safety devices.

Count IV charged that Klean-Rite was negligent in failing to maintain the equipment properly and in failing to install safe machines, failure to make reasonable inspections, failure to warn and failure to have any attendant on duty, and allowing the machines to be in a state of disrepair.

Count V was based on warranty. (This summary of the complaint is greatly condensed.)

The jury found in favor of Borg Warner but for plaintiff against Klean-Rite, and fixed her damages at $4,500. The court allowed the Klean-Rite motion for judgment notwithstanding, and denied plaintiff’s motion for a new trial as to Borg Warner.

During the trial, at the conference on instructions, the court refused all warranty instructions, also strict liability, and the charge of failure to use ordinary care. Plaintiff contends these rulings require that the judgment in favor of Borg Warner be reversed.

Examination of the refused instructions reveals that they purport to state issues, but in fact they are copies of the lengthy charges made in the complaint. In effect, this would require the judge to read to the jury all the substance of three counts as stated by the plaintiff’s counsel. The former custom of attorneys striving to have the judge sound like he was making arguments for a party, resulted in much criticism of our system of instructing juries. The tendered instructions did not comply with the Supreme Court Rule 239 (formerly Rule 25) and lengthy recitals of charges in a complaint have been held reversible error. The leading case is Signa v. Alluri, 351 Ill App 11,113 NE2d 475.

The Court below gave counsel the opportunity to submit proper instructions, but he elected to stand on those tendered so they were refused. We hold this ruling was justified and was not error. The plaintiff insisted on the slanted instructions and thereby took the risk they would be refused. Walton v. Greenberg, 1 Ill App2d 99, 116 NE2d 197.

An engineer employed by Borg Warner testified his company made two types of washing machines, one with shutoff switches, including one that shut off the current when the machine was opened. The other type was without any switches. This witness had looked up the serial numbers of the Norge machines involved and found they were originally sold to a laundromat in New York. These were machines without shutoff switches because that is what the New York customer ordered. He further testified that he was familiar with the design of machines in use, and that machines with switches were not used in public laundromats. In these places the machines can be shut off during operation only by unplugging. He also testified there would be a light on the machine during all its phases.

We first consider the factual questions presented by the evidence as to Borg Warner. Its engineer testified that his company makes machines with switches, but they were not used in laundromats. Some jurors, considering this testimony in the light of their own observation and experience in life, may well have recognized that these machines are used by persons with varying degrees of experience and aptitude, so that the simplest type of machine is desirable. At any rate, it was within their province to find that a factory may properly produce the type of machines its customers want, and that this is not negligence, nor breach of warranty, nor delivering unreasonably dangerous machines.

Thus, it appears that the verdict for defendant Borg Warner was within the scope of the evidence, and justified a judgment in its favor. That judgment is affirmed.

As to the local company, its president testified about the junking and replacing of these machines. Within some weeks after plaintiff’s injuries, all of the Norge machines in this establishment were disposed of. It was not indicated just when the machine that caused plaintiff’s injuries was removed, but long before trial all of the Norge machines were gone from this place, so that none was available for inspection or production at the trial.

This witness also testified that inspections and maintenance were kept up. However, the jury had heard the testimony of Borg Warner’s engineer that there would be a light visible throughout all phases while plaintiff asserted that all lights were out when she found that the machine had stopped. These were the conditions specified in the sign directing a customer what to do, and caused her to act as she did.

The jury may have regarded this evidence as indicating a lack of proper inspections and maintenance. The erratic action of the machine as described by the plaintiff, necessarily indicates something was wrong and a defect of some kind existed. It would seem reasonable inspections should have disclosed that the machine sometimes went into action when all lights were out.

The argument for this defendant includes citations of a number of cases which we believe are not in point on the facts. We here refer to those most strongly emphasized.

In Huff v. Illinois Cent. R. Co., 362 Ill 95, 199 NE 116, the plaintiff, an employee on a railway repair track, was told to remove a drawbar from a boxcar. He was given no instructions how to do it. He used a heavy-duty jack which he worked up under the drawbar, then removed the parts holding the drawbar and sought to lower it. The jack went down a notch or two but the drawbar stuck. The workman held the jack lever with his foot and shook the drawbar, it came loose and the jack fell into the casing, and he was injured. Upon these facts the court declared itself unable to conjecture what caused this operation and held “the mere happening of the accident raises no presumption that it was caused by negligence.”

This rule of law would be applied, but we see no resemblance to the facts in this case. Here there is no need to conjecture: the machine was stopped with the lights out. The woman then followed instructions as to what to do when these conditions arose, thereupon the machine started again without the use of any switch, and injured her arm. It is obvious that the operation was defective, and that this defect should have been discoverable by reasonable inspection. The proprietor had told the customer what to do and should have exercised reasonable care to avoid dangerous results when the instructions were followed. We do not see anything in the Huff case which would hold that a jury could not find negligence under these conditions.

In Miszczak v. Maytag Chicago Co., 11 Ill App2d 496, 138 NE2d 52, a woman using her daughter’s washing machine had her hand and arm caught in the rollers that wring the water out of the laundry, when she pushed on the tension release bar, pursuant to instructions, but it failed to work. In its finding that there was no proof of negligence, the court noted that the plaintiff and her daughter were in the sole possession of the machine, and had been for nearly two years. Thus, the maker and seller of the machine were not chargeable with failure to inspect and maintain, and there was no excuse for failure to produce the machine at the trial, or to present testimony as to its defective condition.

Likewise in a cited Florida case, Brookshire v. Florida Bendix Co., Inc. (Fla), 153 So2d 55 (1933), the washing machine had been placed in an apartment building where it was used by plaintiff who suffered an injury similar to the one in this case. However, there was no showing of any instructions by the seller that should have been followed by the user and the plaintiff failed to offer any evidence of a defective operation in the machine such as was described in this case. Under these conditions there followed a directed verdict for defendant, since there was no evidence of a defect which was or should have been known to the defendant.

In Shramek v. General Motors Corp., 69 Ill App2d 72, 216 NE2d 244, the plaintiff was injured in an automobile accident when a tire blew out. The car had been junked and the tire was not produced and nothing was shown as to its condition during the trial. The court held that blowouts can be attributed to myriad causes, and in the absence of proof of a defect in the tire, the plaintiff could not recover.

None of these citations are similar to the present case. Here there can be no question that the machine was defective, and that the defect caused injury when the machine was being operated according to the proprietor’s instructions.

In our opinion the jury was justified under these facts in finding the defendant was negligent in its inspection and maintenance of a machine known to have served its normal useful life, and in directing the user to act in a certain way without ascertaining that it would be a safe procedure. The defendant was under a duty to use due care to prevent injury to an invitee.

With respect to the proper procedure on the motions filed in this case, the present rule in Illinois is that 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 the movant that no contrary verdict based on that evidence could ever stand. Pedrick v. Peoria & Eastern R. R. Co., 37 Ill2d 494, 229 NE2d 504.

The allowance of the motion for judgment notwithstanding the verdict against Klean-Rite was error and that ruling is reversed and judgment is entered here for plaintiff against the defendant, Klean-Rite, Inc., in the sum of $4,500.

Affirmed in part and reversed in part, with judgment here.

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


author: STOUDER, J.

text:
    Donald Tjaden and Nancy Tjaden, Plaintiffs-Appellants, v. Betty J. Moses, Defendant-Appellee.
    Gen. No. 67-75.
    Third District.
    May 3, 1968.
    Rehearing denied June 20,1968.

      Costigan and Wollrab, of Bloomington, and Harold H. Kuhfuss, of Pekin, for appellants.
    Heyl, Royster, Voelker & Allen, of Peoria, for appellee.
   STOUDER, J.

This was an action brought in the Circuit Court of Tazewell County for damages for personal injuries to plaintiff, Donald Tjaden and for loss of consortium sustained by plaintiff Nancy Tjaden. The complaint was in four counts. Count 1 was a negligence count for personal injuries, Count 2 was a negligence count for loss of consortium and Counts 3 and 4 were wilful and wanton counts for personal injuries and loss of consortium, respectively. At the conclusion of all the evidence the court directed a verdict for defendant, Betty Moses, on Counts 2, 3 and 4, and the jury found for defendant on Count 1.

Plaintiff, Donald Tjaden, was a farmer who hauled grain as an adjunct to the business of farming. On the date he received the injuries complained of, he was hauling grain and had parked his truck on the west shoulder of the southbound lane of Route 29 approximately 300 feet south of the intersection of Routes 98 and 29. Plaintiff left the parked truck, walked across the southbound lanes and fell in front of the car being driven north on Route 29 by defendant. The injuries received by plaintiff were severe and permanent. The evidence showed that defendant’s car was traveling at a speed of from 35 to 40 miles per hour in the left or inside lane at the time plaintiff was hit. It appears that plaintiff slipped and fell, the impact between his body and the automobile of defendant occurring as plaintiff was in the act of falling.

Plaintiffs have appealed, alleging as error the directed verdicts on Counts 2, 3 and 4, the refusing of one instruction and the giving of another.

With respect to the counts based on wilful and wanton misconduct the plaintiff argues that the evidence supports such allegations. Plaintiff alleged the defendant drove her car at a high rate of speed without keeping a proper lookout when she knew of the plaintiff’s presence on the highway, or should have known of his presence through the exercise of reasonable care. Further, that she drove her vehicle on the left side of the highway and did not turn to the right when she had an opportunity to do so, when she knew the plaintiff was present on the highway, or in the exercise of reasonable care should have discovered his presence. An alternative allegation of wilful and wanton was to the effect that the defendant drove her vehicle at a high rate of speed, in close proximity to the certain road signs or obstructions, when her vision was obscured as to the presence of the plaintiff, Donald Tjaden.

The rule with respect to direction of verdicts is that verdicts ought to be directed 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 trial court’s consideration of such a motion is not limited to a determination of whether there is any evidence supporting one side of the issue.

A wilful or wanton injury must have been intentional or the act must have been committed under circumstances exhibiting a reckless disregard for the safety of others, such as a failure, after knowledge of impending danger, to exercise ordinary care to prevent the injury or a failure to discover the danger through recklessness or carelessness when it could have been discovered by the exercise of ordinary care. Klatt v. Commonwealth Edison Co., 33 I112d 481, 211 NE2d 720, and Hering v. Hilton, 12 I112d 559, 147 NE2d 311. While wilful and wanton misconduct as distinguished from negligence may be a matter of degree there is, nevertheless, no doubt that a distinction exists and that courts are frequently called upon to delineate the boundaries thereof. Conduct is not wilful and wanton merely because one may allege or say it is. Such characterization depends upon the reasonable inferences which may be drawn from the evidence. Without restating the evidence or facts we believe the trial court properly concluded that the evidence viewed in its aspect most favorable to plaintiff, was insufficient to give rise to any reasonable inference that defendant’s conduct was wilful or wanton.

As to Count 2 we must agree that the decisions in Illinois appear to hold that a spouse may maintain an action for loss of consortium. Dini v. Naiditch, 20 I112d 406, 170 NE2d 881. However we find nothing which defines this loss. Webster defines consortium as marital association — usually used in connection with a spouses’ injuries or alienation of affections. In the Dini case supra, the trial court on motion for summary judgment, dismissed the count of the complaint based on loss of consortium. The Supreme Court in reversing the order of the trial court affirmed the existence of the cause of action but did not specify the nature of the evidence sufficient to support such claim. We believe it can be said that a wife’s right of action for loss of consortium against a third party as a result of injuries to her husband is a separate and distinct action although dependent upon the liability of such third party for the injuries to the husband being established. Damages recoverable by the injured husband are not damages which may be allowed or recovered in the wife’s separate action. Further there is no presumption of injury to the rights of consortium of the wife arising from injury to the husband. The trial court’s action in directing a verdict on the consortium count did not hold that an action based thereon did not exist but that the evidence was insufficient to support such claim.

Plaintiff wife testified that they no longer danced or bowled. In addition, it is asserted that the plaintiff husband was rendered impotent. The only basis for this latter assertion is found in the testimony of the orthopedic surgeon. He testified that the plaintiff husband complained to him that he could not sustain an erection. The surgeon referred the husband to an urologist and over objection the surgeon was permitted to testify to the urologist’s statement made after the examination. Such statement was to the effect that the urologist could find no physical reason for the husband’s complaints and that such complaint could be psychogenic in nature. This is the only evidence in the record concerning the husband’s alleged impotency. Defendant has objected to the admissibility of the urologist’s hearsay statement, but in our view of the case it is unnecessary to decide such question. Assuming that plaintiff husband made such complaint the record is devoid of any evidence concerning the duration, nature or effect if any upon the relationship of the parties. Under such circumstances we do not believe the evidence was sufficient to require the submission of the loss of consortium count to the jury.

This brings us to plaintiff’s last contention that the trial court erred in the giving and refusing of instructions. The instruction tendered by plaintiff and refused by the court related to the statutory duty to sound an audible alarm “. . . when reasonably necessary to insure safe operation . . . .” We do not believe the court erred in refusing this instruction. Although a party is entitled to have the jury instructed on his theory of the case, Sims v. Chicago Transit Authority, 7 Ill App2d 21, 129 NE2d 23, there must be some evidence to support the theory claimed applicable. In the instant case we find no evidence from which it can be inferred that the statute was violated or that there was any causal relationship between defendant’s failure to sound an audible alarm and the occurrence.

Defendant’s instruction given over objection of plaintiff, and with respect to which error is claimed, is also a statutory violation instruction. The instruction in referring to a statutory duty provides, “. . . Every pedestrian crossing a roadway at any point other than within a marked crosswalk or within an unmarked crosswalk at an intersection shall yield the right-of-way to all vehicles upon the roadway.

“Notwithstanding the provisions of this section every driver of a vehicle shall exercise due care to avoid colliding with any pedestrian upon any roadway and shall give warning by sounding the horn when necessary and shall exercise proper precaution upon observing any child or any confused or incapacitated person upon a roadway . . . .” Plaintiff’s objection to the instruction is that a warning by sounding the horn is applicable only when there is a child or confused or incapacitated person upon a roadway. We agree with the trial court that no such meaning is implied by the statutory language. The incident involved a pedestrian crossing a highway and an automobile traveling thereon and an instruction relating thereto was proper. The instruction not being susceptible of the meaning contended for by plaintiff the jury could not have been misled thereby and the court committed no error in giving such instruction.

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

Judgment affirmed.

ALLOY, P. J. and SCHEINEMAN, J., concur.


text:
    Peoples Bank of Bloomington and Jane Kettering Rankin, Plaintiffs-Appellees, v. Curtis S. Rankin, et al., Defendants-Appellants, and Oland G. Johnson, Executor, Defendant-Appellant.
    Gen. No. 67-87.
    Third District.
    May 3, 1968.
    James D. Heiple, of Pekin, for appellant.
    E. William Rolley, of Bloomington, for appellees.
   SCHEINEMAN, J.

This suit was filed for the principal purpose of obtaining a judicial construction of two wills. The testators were Ray N. Kettering and Hyla J. Kettering, husband and wife. Both are now deceased and their wills admitted to probate. The two wills contained an identical clause, the pertinent parts being as follows:

“. . . I give, devise and bequeath the aforesaid property to the Peoples Bank of Bloomington, Bloomington, Illinois, trustee, in trust for the following purposes:
“A. To invest and reinvest the corpus, collect the income therefrom, and to pay over the net income therefrom to my daughter, Jane Kettering Rankin and her children or the descendants of any deceased child per stirpes, as follows:
"1. The net income shall be distributed as often as the trustee decides but at least once each year.
“2. The net income each year shall be divided equally between my daughter Jane, and her children, or the descendants of any deceased child per stirpes, share and share alike, and paid to them or used for their behalf, as the trustee in its sole discretion sees fit.”

There follows a provision for the distribution of the corpus of the trust after the death of the daughter, Jane, to the children, — “and the income divided among them in equal shares per stirpes.”

The testators were survived by their daughter Jane and four minor children and none other. The problem involved is whether the word “between” as used herein, requires the income be divided into two parts, one for Jane and the other for her children. Or, does the word have the meaning of “among” and require an equal division among the five survivors ? The first of these alternatives would give Jane one-half of the income and each of her children one-eighth, whereas the second alternative would give each survivor one-fifth of the income.

The chancellor entered a decree adopting the first alternative as the proper construction. This appeal was perfected in behalf of the executor and the four children by their guardian ad litem.

Although the primary meaning of “between” indicates a division into halves, this court cannot arbitrarily conclude this must be its meaning here, since it is known to be used sometimes in the sense of “among” as where there is a direction to divide among three or more persons. In construing wills, allowance must be made for this possibility even though it may be an incorrect usage.

In construing a will, the court will consider the entire will and all its words to ascertain the testator’s intention, and the intention, so ascertained, will be carried out whenever it can be done without violating any established rule of law or public policy. The will is read in the light of existing family conditions under which the will was made. In re Estate of Reeve, 393 Ill 272, 65 NE2d 815; Dahmer v. Wensler, 350 Ill 23, 182 NE 799; Norton v. Jordan, 360 Ill 419,196 NE 475.

The foregoing rule is not in dispute, and the citations given are among those appearing in briefs from both sides. From this point the parties differ.

Appellants argue that the exclusion of Jane from the distribution of the trust corpus shows a preference for the grandchildren over the daughter, so the indicated intention is to give the grandchildren a greater portion of the income.

With this we cannot agree. The distribution of the corpus is deferred until the death of Jane, when she ceases to be an object of the testator’s bounty and concern, leaving only the grandchildren to be considered.

We deem it at least as logical to say that the testators intended to give their daughter a major portion of the income during her lifetime, when the need for it may exist, and to discontinue this preference when the need can no longer exist.

It may be conceded that, if the number of persons in the family remains substantially unchanged during Jane’s life, the distribution desired by the appellants is compatible with the wording of the wills.

It is obvious the testators did not confine themselves to providing for that precise situation. They deemed it possible that Jane might outlive some of her children. This is shown by Section 2 where they direct that during Jane’s life the distribution of income shall be to Jane and her children “or the descendants of any deceased child per stirpes.” The direction to distribute per stirpes occurs four times in the context.

A distribution per stirpes is the antithesis of an equal division per capita. Thus, if a child of Jane dies before she does and leaves more than one descendant, these descendants would share the income only in the amount their parent would have taken if living. These shares would thus be less than the shares of children surviving Jane. This is the accepted meaning of per stirpes.

But immediately following the directions in paragraph 2 of these wills for a distribution of income per stirpes, are the words “share and share alike,” which implies a per capita division antithetic to per stirpes, so that these words are not compatible with the words “per stirpes.”

To give any meaning to the words “share and share alike” they must be regarded as referring back to the direction that the income “shall be divided equally between my daughter Jane, and (her descendants).” Otherwise it would be impossible to comply with this clause under the assumed condition, since it would contain inconsistent dispositions.

The law requires the court to give meaning to all the words of the wills, and to adopt a construction which provides a plan of distribution consistent with all provisions therein. The only construction which does this is that the testators intended the income shall be divided “share and share alike,” one-half to their daughter and one-half to her descendants. It is the half bequeathed to the descendants which shall be distributed to Jane’s children or the descendants of any deceased child “per stirpes.”

The decree in this case directs distribution be made in this manner, thereby giving meaning to the provisions of the wills as the law requires. Accordingly the decree is affirmed.

Decree affirmed.

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


text:
    Patricia A. Hannah, Plaintiff-Appellee, v. Vinton A. Hannah, Defendant-Appellant.
    Gen. No. 67-91.
    Third District.
    May 3, 1968.

      Winstein & Kavensky, of Rock Island, for appellant.
    H. Moss Meersman, of Moline, for appellee.
   CULBERTSON, J.

On July 19, 1967, a decree was entered by the Circuit Court of Rock Island County granting the plaintiff, Patricia A. Hannah, a divorce from Vinton A. Hannah, defendant, on the ground of extreme and repeated cruelty. Five days later defendant filed a motion to vacate the decree, alleging that the attorney who had purported to represent him was without authority to do so, and he here appeals from the order denying such motion. No charges of fraud or collusion are made.

It appears that the parties, in contemplation of a divorce action, entered into an agreement on July 13, 1967, wherein property rights were settled, alimony was waived by plaintiff, and the custody, support and visitation rights with respect to two minor children were fixed. In addition, plaintiff agreed to pay all attorney fees and court costs and “to save defendant harmless from any and all liability for same.” On the same date, defendant signed, acknowledged and left in the possession of his wife’s attorney, H. M. Meersman, the following typed instrument (omitting the caption of the case) :

“APPEARANCE AND CONSENT FOR IMMEDIATE HEARING
“I, Vinton A. Hannah, Defendant in the above-entitled cause, hereby waive service of process and enter my full appearance to the court and consent to the jurisdiction of the Court and to an immediate hearing in said cause, and further waive all rights which I now have or may hereafter acquire under the Soldier’s and Sailor’s Civil Relief Act and amendments thereto, and further consent that any and all orders may be entered and proceedings had herein as fully and with the same force and effect as though I had been duly and regularly served with process of summons, and I hereby appoint as my solicitor and attorney to represent me in said cause and to file an Answer and such other pleadings as he may consider necessary in my interest.”

Six days later Meersman filed a divorce complaint and asked attorney James DeWulf, whom he encountered in the clerk’s office, to accommodate him in a divorce matter. When DeWulf acquiesced, his name was printed with ink in the appearance and consent and he also examined and signed an answer that had been prepared by Meersman. This answer denied the allegations that plaintiff had conducted herself as a true and affectionate wife, and also denied the allegations of extreme and repeated cruelty. Allegations of the complaint that were admitted for the most part, conformed to matters defendant had agreed to in the property settlement. There was an immediate hearing at which the plaintiff was the sole witness, and during which she was cross-examined briefly by DeWulf. The pretrial agreement of the parties was also introduced into evidence and was incorporated into the ensuing divorce decree. At the hearing on defendant’s motion to vacate, DeWulf testified that he had not known, or talked to, defendant prior to the divorce proceeding.

At the outset it should be noted that this is not a case where the court acquired jurisdiction over the person of defendant by virtue of the general appearance of an attorney authorized to represent him. (See: Jamie-son v. Jamieson, 14 Ill App2d 233, 144 NE2d 540; In re Village of Harvester, 37 Ill App2d 255, 185 NE2d 369; Smith v. Hickey, 188 Ore 539, 216 P2d 268; Cf. Geiermann v. Geiermann, 12 Ill App2d 484, 139 NE2d 838.) Rather, the instrument defendant executed was itself a waiver of process and the entry of his appearance before the court which, when signed by defendant and filed, was sufficient to invest the court with jurisdiction over the defendant’s person. (Vayette v. Myers, 303 Ill 562, 136 NE 467; Jennings v. Jennings, 337 Ill App 647, 86 NE2d 287; 24 Am Jur2d, Divorce and Separation, § 292.) The question here is whether, as defendant claims, DeWulf lacked authority to represent him, and that as a consequence defendant did not participate in the divorce proceeding and is therefore not bound by the decree.

Although at first blush defendant’s contention and argument are not without some surface appeal, a closer inspection casts him in the role of one asking a court of equity to reward him for circumstances of his own creation. It may be agreed that no person has the right to appear as attorney for another without the latter’s authority. (Haring v. Godbersen, 13 Ill App2d 95, 141 NE2d 90.) However, as pointed out in 7 Am Jur2d, Attorneys at Law, § 112: “The authority may be express or implied, and the authority may be given by an agent of the party for whom the appearance is made.” The inescapable conclusion to be reached from the record of the instant case is that DeWulf had implied authority to represent defendant for the reason that defendant knowingly, deliberately and for his own benefit, made Meersman his agent to transmit such authority. Whether the latter should have accepted such agency is not an issue in this case. The instrument executed by defendant was couched in plain and unambiguous language, and was clearly intended to appoint and authorize some attorney to represent defendant in the divorce proceedings. He knew that the space for the name of the attorney was left blank; he knew that his wife’s attorney could not represent him in the contemplated divorce action; and he knew that he had just signed an agreement where he was exonerated from liability for all attorneys’ fees. Knowing all these things he signed and acknowledged the instrument, left it in the possession of his wife’s attorney, and did nothing further in the six days which intervened before the divorce proceeding was filed and heard. The clear intendment from the record is that defendant knew and expected Meersman to select an attorney and to insert his name in the instrument, and that defendant intended such attorney to have the authority to represent him. Drawing analogy to the doctrine of apparent authority which prevails in the law of agency, (See: ILP, Agency, § 112), it is our opinion that defendant is estopped to deny that DeWulf was invested with the authority to represent him in the divorce proceeding.

Although, as we have noted, there is no charge that the persons here involved were guilty of fraud or collusion, and we agree that this is so, it is apparent that the practice reflected by the record could open the door to fraud in the hands of attorneys and parties less scrupulous. We therefore condemn it, most particularly the practice of causing the appointment of an attorney to be executed in blank, and suggest that the appointed attorney be one actually and personally designated by or consented to by the prospective defendant. Consistent with good practice, the appointee should be notified and indicate his acceptance before the appointment is executed.

For the reasons stated, the order of the Circuit Court of Rock Island County denying defendant’s motion to vacate the divorce decree is affirmed.

Order affirmed.

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


author: TRAPP, J.

text:
    M. D. Turley, Plaintiff-Appellant, v. W. T. A. X., Inc., a Corporation, Defendant-Appellee.
    Gen. No. 10,908.
    Fourth District.
    May 6, 1968.

      Foreman, Rammelkamp, Bradney & Hall, of Jacksonville, for appellant.
    Gillespie, Burke & Gillespie, of Springfield (Louis F. Gillespie, Hugh J. Dobbs, and George B. Gillespie, of counsel), for appellee.
   TRAPP, J.

The trial court granted defendant’s motion to dismiss plaintiff’s amended complaint for libel. Plaintiff appeals.

Plaintiff is a professional architect and structural engineer engaged in the practice of his profession with offices in Springfield, Illinois. Defendant is an Illinois corporation with its radio broadcasting station situated in Springfield.

The alleged libel relates to the services by plaintiff as architect for the design and acquisition of furnishings and equipment for the new County Building in Sangamon County.

The pleadings alleged the following facts: Plaintiff’s original specifications called for acquisition by the County of 132 chairs, known as “Steelcase No. 1342, side chair with chrome frame, vinyl upholstery,” Manufacturer’s Number 1342. The retail price of this chair was $110.

At the public letting of bids, one of the suppliers made an alternate bid with respect to chairs, tendering a bid of 132 chairs known as “GF 40/4.” The retail price of such chair it alleged to be $26.95.

On October 20, 1965, and thereafter, the defendant prepared and installed a certain window display in the public display area of a store building located at 223 South Fifth Street, in the downtown area of the City of Springfield. The window display consisted of two chairs, virtually side by side, one chair being the Steelcase Number 1342, with a card on the seat thereof stating: “Steelcase 1342 Retails at $110,” the other chair being the GF 40/4 chair with a card on the seat thereof stating: “General Fireproofing 40/4 Retails at $26.95.”

A placard was placed on the floor slightly to the left of the Steelcase chair bearing the imprint: “County Building Specs. Called for 132 Chairs Like This.” A card comparable in size and printing was placed slightly to the left of the GF 40/4 chair bearing the legend: “County Building Architect Allowed Supplier To Substitute This As Equal.” The amended complaint alleges that such legend is false.

Counts I, II, III and IV of the amended complaint also allege that on October 12, 1965, the defendant, by its newscaster was present at a meeting held by plaintiff with representatives of the communications media and suppliers, that the newscaster asserted in the presence of all those at the meeting, that Mr. Turley had approved the two chairs in question as equal, and Mr. Turley immediately asserted in response that he had not approved anything; that he would not render an approval until he had a chance to completely inventory the deliveries and check the deliveries item by item and determine exactly what items were located where; that plaintiff further asserted at this same meeting of October 12, 1965, that if in his opinion an item delivered was not an equal to the item specified, an adjustment would have to be made. Counts I, II, III and IV of the amended complaint each allege that, nevertheless, about eight days after the meeting of October 12,1965, and without any consultation with Turley, the defendant did, on October 20, 1965, publish the said window display and the false statement therein contained; that such publication of the window display was made with actual malice, in that the publication was made by the defendant with knowledge that the statement was false or with reckless disregard of whether it was false or not; and that the publication was made of the plaintiff in his said office, profession and employment. Actual malice is not alleged in Counts V and VI, and special damages are not alleged.

The written judgment order upon which this appeal is taken orders dismissal of the amended complaint on the following grounds: Each Count fails to allege a libel per se and is, therefore, defective in its failure to allege special damages, each Count shows that the plaintiff was a public person and, Counts V and VI are defective for failure to allege special damages and the facts supporting the charges of actual malice. It appears that the trial court concluded that the allegations in Counts I, II, III and IV were sufficient to allege actual malice under the rule of New York Times Co. v. Sullivan, 11 L Ed2d 686.

The constitutional issue of freedom of the press having been raised by motion, we find that the trial court considered the question of the existence of a qualified privilege. The opinion of the court and his statements in the report of proceedings, as well as the briefs and arguments submitted, refer to plaintiff as having the status both of a public official and a public person. If the former, the rule stated in New York Times Co. v. Sullivan, 376 US 254, 11 L Ed2d 686, applies, while, if the plaintiff has the status of a public person, we must apply a possibly different rule stated in Curtis Pub. Co. v. Butts, 388 US 130,18 L Ed2d 1094.

Under the facts of this case the plaintiff had the status of a public official for purposes of determining the quantum of privilege applicable to the events at issue. In the Law of Torts, 2d ed, 1955, Prosser discusses the nature and extent of qualified or conditional privilege in connection with the law of defamation, chapter 19, § 95. He says, at p 620:

“The press, or anyone else, is privileged to discuss the administration of public affairs, and the conduct or qualifications of public officers or candidates and public employees as well as work to be paid for out of public funds. ... in which the public has a legitimate interest.”

In the Restatement of the Law of Torts, chapter 25, § 607, it is stated that the privilege of criticism applicable to public officials extends to criticizing the work of independent contractors paid for out of public funds, and the work of employees of such contractors.

The trial court quoted, and apparently relied upon the language from 33 American Jurisprudence, § 166, p 160, as follows:

“Thus, it has been held that the architecture of public buildings is a legitimate subject of newspaper criticism. So also, one who takes the position of architect in the construction of a public building is acting as a public official and must expect criticism in the public interest.”

The statements of these authorities upon the source and extent of privilege have probably been extended by the decision in Rosenblatt v. Baer, 383 US 75, 15 L Ed2d 597, wherein the United States Supreme Court defined the scope of conditional privilege under constitutional standards as being determined by reference to the function which it serves. In that case the plaintiff was employed to manage a municipal ski resort. The court determined that he had such control and responsibility over governmental affairs, and was in such a position to significantly influence the resolution of issues of public interest as to require his treatment as a public official.

In this case the complaint alleges that the plaintiff supervised the design and construction of the building and that he prepared the specifications upon which bids were taken for chairs and furnishings, and that his services included the acquisition of such items. Plaintiff was thus in a position to significantly influence the construction and furnishings of a public building provided through public funds. The test of significant control is found in the contrasting results in Suchomel v. Suburban Life Newspapers, Inc., 84 Ill App2d 239, 228 NE2d 172, and Coursey v. Greater Niles Tp. Pub. Corp., 82 Ill App2d 76, 227 NE2d 164. In the former case the plaintiff, who was second in command of a police department as well as the community juvenile officer, was held to be a public official within the rule of Times, while in the latter case it was held that a police patrolman was not subject to the rule of qualified privilege.

It being concluded that the plaintiff had the status of a public official which established a qualified privilege, as is conceded by plaintiff at the time of oral argument, the allegation of the complaint must be measured in the light of the rule in New York Times Co. v. Sullivan, 376 US 254, 11 L Ed2d 686. See Grabavoy v. Wilson, 87 Ill App2d 193, 230 NE 581; Suchomel v. Suburban Life Newspapers, Inc., 84 Ill App2d 239, 228 NE2d 172. In Times it is held that the constitutional guarantee of freedom of speech and press prohibit a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with “actual malice,” that is, with knowledge that it was false or with reckless disregard of whether it was false or not. Rosenblatt v. Baer, 383 US 75,15 L Ed2d 597. In Garrison v. Louisiana, 13 L Ed2d 125 at 133, the basis of liability for libel of a public official was characterized as “calculated falsehood” and we find the language:

“. . . only those false statements made with the high degree of awareness of their probable falsity demanded by New York Times may be the subject of either civil or criminal sanctions.”

Plaintiff argues that Counts I, II, III and IV allege actual malice within the rule stated in that facts pleaded show that the matter published was false and that defendant knew that such matters were false. Defendant’s motion admitted facts well pleaded. Grabavoy v. Wilson, 87 Ill App2d 193, 230 NE2d 581.

Matters pleaded as fact and so admitted upon motion include allegations that plaintiff prepared the specifications and that the alternate bid was submitted and a contract awarded thereon. It is also alleged to be a fact that the defendant, through its agent, knew (1) that the supplier had submitted a bid upon the alternate described, and (2) that the contract had been awarded upon such alternate bid.

In support of the hypothesis that the facts demonstrate actual malice, plaintiff argues that the matter published by defendant was false, and that such falsity was known to defendant, by reason of statements and remarks interchanged between plaintiff and defendant’s newsman at the “press conference.” It is pleaded as a fact that at such meeting defendant’s agent asserted publicly that plaintiff had approved the alternate chair “as equal to the other chair,” to which plaintiff immediately responded that he hadn’t approved anything and that he would not render approval until he had a chance to completely inventory the deliveries and check the deliveries, item by item, and that he further stated that if, in plaintiff’s opinion, an item was not “an equal to the item specified, a price adjustment would have to be made.” The response by plaintiff does not disclose whether the chairs delivered would be required by plaintiff to be equal to the item specified in the original specification, or simply equal to the item specified in the contract awarded. One would expect the chairs that were delivered to be equal to the chairs specified in the contract award, but as plaintiff says in an argument upon another issue, the visual display shows how unequal the chairs actually were. Again, plaintiff’s statement concerning the adjustment of price if the chairs delivered failed to equal the chairs “specified” suggests no reasonable relation between the chairs first specified for bidding and those actually ordered. We find some semantic fog in the arguments submitted. In common usage, “alternate” as a noun is defined in terms of, and has as a synonym, the word “substitute.” See Webster’s Third New International Dictionary, Standard Dictionary of the English Language, Shorter Oxford English Dictionary and Webster’s New World Dictionary, College Edition (1960). See also 3 Corpus Juris Secundum 1011.

Upon the bare bones of the event, the award of the alternate contract constituted an acceptance of the chairs delivered for the uses and purposes of the County building, and, in common language, can be said to be, at least to some degree, approval of a substitute for those uses. Plaintiff’s statement or response which purports to establish the falsity of defendant’s publication, as well as defendant’s knowledge of such falsity, was, in legal jargon, not responsive, and it failed to speak to the issue raised at the press conference.

Upon the facts pleaded, including the words specified in plaintiff’s response, there is no allegation of fact which can be reasonably construed to show actual malice under the constitutional standards heretofore stated in Times. We cannot say that the publication at issue made a false statement of fact, or was made with a high degree of awareness of probable falsity within the meaning of Garrison.

Plaintiff argues that the display of chairs and accompanying legends constitutes libel per se. It is apparent that the pleading does not charge any criminal act, corruption or conspiracy. There is no contention that the display suggests that the County paid for anything that it did not receive, or that it did not receive value for what it did pay. The thrust of the contention is that defendant asserted that plaintiff permitted the substitution of chairs because they were equal in dollar value. Plaintiff reaches this position by joining or associating the legend, “. . . To Substitute This As Equal:” with the statement of retail price identified with each chair. He concludes that the legends so tacked together result in a statement meaning that the substitution of chairs was permitted because they were equal in money value. Such conclusion is said to be libelous per se as denigrating plaintiff in his profession and as asserted inadequate representation of his client.

This argument and contention is founded upon and requires the court to adopt plaintiff’s interpretation of the display a form of innuendo proposed by him. We are concerned with the printed legends in their ordinary meaning without addition or explanation to the sense of the words through innuendo. Gogerty v. Covins, 5 Ill App2d 74, 124 NE2d 602; Whitby v. Associates Discount Corp., 59 Ill App2d 337, 207 NE2d 482.

We find no representation or statement of defendant which asserts that there was a substitution of chairs as, or because, they were equal in dollar value. The words in the legend: “. . . To Substitute This As Equal:” more apparently call for comparison of the beauty of the chairs or speculation as to their relative utility or longevity. The posting of the correct retail price for the respective items belies any contention that a reasonable person would believe that it is asserted by defendant that the County architect had permitted substitution as, or because of, equal dollar value. Whatever criticism of public business resulted was comment upon the fact of the matter.

If this view be in actual doubt, or if it might be said that ordinary reasonable people might draw different conclusions, we are bound to apply the rule stated in John v. Tribune Co., 24 Ill2d 437, 181 NE2d 105, which holds that the allegedly libelous matter is to be read as a whole and words given their natural and obvious meaning, and that where such are capable of being read innocently they must be so read and declared nonactionable as a matter of law. See also Grabavoy v. Wilson, 87 Ill App2d 193, 230 NE2d 581; Zeinfeld v. Hayes Freight Lines, Inc., 82 Ill App2d 463, 226 NE2d 392; Kamsler v. Chicago American Pub. Co. Inc., 82 Ill App2d 86, 225 NE2d 434; and Reed v. Albanese, 78 Ill App2d 53, 223 NE2d 419. A contrasting result where the representation is incapable of innocent construction is found in Coursey v. Greater Niles Tp. Pub. Corp., 82 Ill App 76, 227 NE2d 164.

The conclusions reached upon the several issues considered require affirmance of the order dismissing the complaint.

Affirmed.

CRAVEN and HOFFMAN, JJ., concur.


author: MR. JUSTICE ABRAHAMSON

text:
    Elm Lawn Cemetery Company, a Corporation, PlaintiffAppellee, v. City of Northlake, a Municipal Corporation, Defendant-Appellant.
    Gen. No. 67-92.
    Second District.
    May 9, 1968.
    Rehearing denied June 19,1968.

      Donald J. Kroger and Thomas A. Matthews, of Chicago, for appellant.
    David, Fainman, Abrahams & Chapman, of Chicago, and Redmond, Morgan, Mraz and Bennorth, of Bensenville, for appellee.
   MR. JUSTICE ABRAHAMSON

delivered the opinion of the court.

This is an appeal from a judgment of the Circuit Court of DuPage County declaring a certain ordinance of annexation null and void. Plaintiff, Elm Lawn Cemetery Company, an Illinois corporation, the owner of the tract of land in question, sought to have the court declare that the ordinance annexing its property was, in accordance with the terms of a certain preannexation agreement, null and void. City of Northlake, defendant, appeals from a judgment in favor of the plaintiff.

On October 29, 1964, plaintiff, defendant and County Line Industrial Development, Inc., an Illinois corporation (hereinafter referred to as “developer”), entered into a preannexation agreement with regard to certain property approximately 60 acres in size owned by the plaintiff. The agreement, among other things, gave the developer the right to purchase the property in question and provided that on its failure to purchase the property or failure to improve the property in accordance with the agreement and failure to develop the property industrially within the time agreed upon, that disconnection of the property from the City of Northlake would be mandatory and that under the terms of the agreement the annexation should be null and void. The preannexation agreement was executed by all of the parties, including the City of Northlake. In accordance with the express provisions of the preannexation agreement, the plaintiff filed a Petition for Annexation on October 29, 1964. An ordinance annexing the property in question was adopted by the City of Northlake on November 10,1964. The Petition for Annexation had a copy of the preannexation agreement attached to it and was made subject to the terms thereof. Plaintiff, defendant and the developer amended the preannexation agreement on October 12, 1965. The changes made by said amendment are not material to this proceeding. The defendant admits in its answer that the developer has not constructed the improvements provided for in the preannexation agreement in the time therein provided and further admits that in accordance with the preannexation agreement, upon failure to so do, that the agreement and the annexation should be null and void. Plaintiff petitioned for a disconnection; defendant refused to disconnect the property.

Defendant on appeal first contends that the trial court erred in not dismissing plaintiff’s complaint and asserts that the only way to attack the validity of the annexation ordinance is by a Quo Warranto action. There is no question that a Quo Warranto proceeding is a proper method of attacking the validity of an annexation ordinance. The question is whether such a proceeding is the only action available to the plaintiff. The Illinois Declaratory Judgment Act, c 110, § 57.1 (Ill Rev Stats 1965) states:

“The Court may, in cases of actual controversy, make binding declarations of rights, having the force of final judgments, whether or not any consequential relief is or could be claimed, including the determination, at the instance of anyone interested in the controversy, of the construction of any statute, municipal ordinance, or other governmental regulation, or of any deed, will, contract or other written instrument, and a declaration of the rights of the parties interested. The foregoing enumeration does not exclude other cases of actual controversy ...”

The complaint in this action does not question the validity of the annexation ordinance, but seeks rather to have a declaration that the preannexation agreement and the ordinance are to be deemed null and void since certain events did not occur. The court below found that by virtue of the events which had not occurred, under the terms of the preannexation agreement, the ordinance itself was null and void and the property in question should be disconnected from the City of North-lake. The declaratory judgment procedure is remedial.

The section does not create substantive rights and duties, but establishes a cumulative, procedural method for their judicial determination. The existence of other remedies does not preclude judgment for declaratory relief even though another remedy may be equally effective and available to the parties. In Koziol v. Village of Rosemont, 32 Ill App2d 320, 327, 177 NE2d 867, the court stated:

“Actions brought under the Declaratory Judgments statute are neither legal nor equitable but sui generis. The statute provides for the entry of a declaratory judgment, decree or order, which takes the character of the nature of the relief declared. (Citation omitted.) The scope of the declaratory judgment remedy should be kept wide and liberal and not restricted by technicalities. The important point is the right and the duty of the courts to grant declaratory relief where, in the interests of the proper administration of justice, it ought to be granted regardless of how the particular action in which the declaratory relief is sought, may be classified. Declaratory relief is not ‘defeated by the mere existence of another form of action which could presently be employed.’ (Citation omitted.)
“The complaint is an action for declaratory relief, which recites in detail the legal dispute between the parties and prays for a declaration of rights and other legal relations of the parties, states facts sufficient to constitute a cause of action against a motion to dismiss for insufficiency of the complaint. (Citation omitted.) The tendency seems to be to liberalize the use of the declaratory judgment action and for the court to take jurisdiction, notwithstanding there is an adequate remedy by some other means. If there is no particular reason for denying the use of the Declaratory Judgment statute, even though the case presented may come within the scope of some other remedy, the declaratory judgment action should still be used. (Citation omitted.) The Declaratory Judgment Act was not designed to supplant existing remedies but is an alternative or additional remedy to facilitate the administration of justice. (Citation omitted.) ”

We are of the opinion that the plaintiff here was entitled to declaratory relief.

The defendant contends that the affidavit attached to the plaintiff’s motion for summary judgment stated conclusions and, therefore, would not be admissible in evidence. The record does not contain a copy of the instrument executed by the developer and the plaintiff. However, the affidavit filed by the plaintiff states that the agreement between the parties was an option, the terms of which had not been complied with; perhaps the better procedure would have been to attach to the affidavit a copy of the option. The defendant did not file a counter-affidavit to put the issue before the trial court of whether there was a contract or an option. The defendant relies on the recital in the preannexation agreement that this was a contract to purchase. The language of the preannexation agreement does not indicate or state that the relationship of the plaintiff to the developer was that of contract seller or grantor of an option. From this we conclude that there was no issue of fact before the court to be determined.

The purpose of the summary judgment proceeding is to avoid congestion of trial calendars and the expense of unnecessary trials by summarily disposing of cases wherein no genuine issue of material fact is presented. Giampa v. Sunbeam Corp., 68 Ill App2d 425, 429, 216 NE2d 233.

Defendant next contends that the developer was a necessary defendant and the court erred in not dismissing the complaint for failure to name the developer as a party. There is no question that the developer failed to purchase the premises; failed to construct the water reservoir, pump house and appurtenances required pursuant to the terms of the preannexation agreement within the time required and specified. Defendant has failed to point out wherein the developer had any interest in the property or in the outcome of the decree. It was not error to proceed without the developer as a party defendant. Horn v. Horn, 5 Ill App2d 346, 351, 352, 125 NE 2d 539.

The final point urged by the defendant for reversal is that the city annexed the property pursuant to chapter 24, section 7-1-8 (Ill Rev Stats 1963) and that the disconnection therefrom must conform to the provisions and limitations of chapter 24, section 7-3-6. The authority of the defendant to make an annexation agreement is found in the Municipal Code of 1961, section 11-15.1 (Ill Rev Stats 1963, c 24, § 11-15.1-1). Section 11-15.1-2 (a) provides that an annexation is subject to the provisions of article 7 of the Code. Section 11-15.1-2 (f) of the Code further holds that the contents of an annexation agreement may provide “Any other matter not inconsistent with the provisions of this Code, nor forbidden by law.” A city can make a valid agreement for annexation which is enforceable. Maywood-Proviso State Bank v. Oakbrook Terrace, 67 Ill App2d 280, 285, 214 NE2d 582. Since a valid contract can be executed to annex territory, we construe the above provisions as sufficient grant to include in the agreement upon what terms the contract may be null and void, which was done in this case. We are of the opinion that the decree did not infringe upon the legislative functions of the city. As set forth in Arlington Heights Nat. Bank v. Arlington Heights, 33 Ill2d 557, 566, 213 NE2d 264: “Enforcement of the agreement according to its plain terms in no way infringes the discretionary power of the board since it had already exercised its discretion.” It is our opinion that this general authorization includes a provision for disconnection which is binding upon the parties.

For the reasons above given judgment of the lower court is affirmed.

Judgment affirmed.

DAVIS, P. J. and MORAN, J., concur.


author: MR. JUSTICE SEIDENFELD

text:
    Johnson-Olson Floor Coverings, Inc., Plaintiff-Appellee, v. James Branthaver, Defendant-Appellant.
    Gen. No. 67-118.
    Second District.
    May 9, 1968.

      Kroeger and Burt, of Freeport, for appellant.
    Nordquist and Anderson, of Rockford, for appellee.
   MR. JUSTICE SEIDENFELD

delivered the opinion of the court.

Plaintiff sued defendant to recover the balance due for merchandise sold. Thirty days after a default judgment was entered, defendant was served with a citation and six days later filed a motion to open up the judgment and for leave to plead. Defendant appeals from the order denying his motion.

Consideration of the following facts and circumstances in the record impels this court to affirm.

On August 30, 1966, the plaintiff filed his unverified complaint, alleging an open account and praying for judgment against the defendant in the amount of $432.33. On the next day, and apparently without knowledge of this suit, the defendant filed a voluntary petition in bankruptcy in the United States District Court for the Northern District of Illinois. The bankruptcy petition named the plaintiff as a creditor, but there is nothing in the record to indicate that plaintiff received a restraining order from the federal court forbidding him from pursuing his claim against the defendant. The defendant was served with summons herein on September 8, 1966, but failed to file an appearance, answer or any other pleading within the time permitted by law. On January 5, 1967, defendant’s debts were discharged in bankruptcy. On the following April 19, however, on plaintiff’s motion and without proofs, the trial court entered judgment in favor of the plaintiff and against the defendant in the amount prayed.

On May 19, the thirtieth day after entry of the default judgment, plaintiff filed a citation to discover assets. When the citation was served upon defendant on May 25, it was the first notice he received that the judgment had been entered. On June 5, defendant filed his motion and supporting affidavit under section 72 of the Civil Practice Act (Ill Rev Stats, c 110, § 72), asking that the judgment be vacated and that he be given leave to file his answer.

Essentially, defendant’s affidavit set forth the foregoing facts, and averred further that defendant “was under a misapprehension that his pending bankruptcy relieved him of the responsibility of responding to a suit in state court and, therefore, he did not consult an attorney, file an answer or otherwise enter his appearance in the matter.” The plaintiff did not file a response to defendant’s motion and affidavit, leaving the allegations therein unchallenged. The trial court denied defendant’s section 72 motion to vacate the judgment order, whereupon defendant filed this appeal.

It is defendant’s contention that he was free from negligence and that the bankruptcy proceedings furnished him with a meritorious defense. He further contends that principles of “substantial justice” dictate that the judgment order be set aside.

It is well settled that a determination under section 72 invokes the equitable powers of the court, as justice and fairness require. See, e. g., Elfman v. Evanston Bus Co., 27 Ill2d 609, 613, 615, 190 NE2d 348 (1963). Although this section is not intended to relieve a party “from the consequences of his own mistake or negligence” Ulrich v. Glyptis, 79 Ill App2d 447, 454, 224 NE 2d 581 (1967), relief thereunder will be granted where the defendant shows a reasonable excuse for failure to act within the appropriate time, together with a statement of ultimate facts showing a meritorious defense. See, e. g., Stoller v. Holdren, 47 Ill App2d 81, 82, 83, 197 NE2d 492 (1964).

It is this court’s opinion that the defendant has not met the burden of section 72, and that the trial court properly refused to set aside its judgment order. Several factors lead to this conclusion.

Passing momentarily the question as to whether the defendant had a meritorious defense at the appropriate time, we shall first consider whether the defendant acted diligently as contemplated by section 72.

There is, to be sure, some confusion as to the standard of conduct required of a defendant under section 72. It is quite clear, however, that the defendant must show that his failure to defend was a result of excusable mistake, and that under the circumstances he acted reasonably, and therefore not negligently, when he failed to initially resist the judgment. Boyle v. Veterans Hauling Line, 29 Ill App2d 235, 172 NE2d 512 (1961).

While the question of the defendant’s negligence must be determined on the facts of each particular case, the decisions dealing with the question imply that the defendant’s neglect is not excusable where he ignores the summons, or otherwise treats the proceedings with indifference. Thus, in Busser v. Noble, 8 Ill App2d 268, 283, 131 NE2d 637 (1956), the court made the following observation:

“In the instant case defendant paid attention to this summons. He did not treat it with indifference. He did just what the ordinary individual would do. He delivered it to the agent of his insurance carrier. He thereafter made repeated inquiries concerning it and was assured his interests would be taken care of. His conduct was not inexcusable.” (Emphasis added.)

In Dalton v. Alexander, 10 Ill App2d 273, 288, 135 NE 2d 101 (1956), it was likewise noted that the defendant “did not ignore the summons.” See also Widicus v. Southwestern Elec. Cooperative, Inc., 26 Ill App2d 102, 110, 167 NE2d 799 (1960), where the court observed that “the defendant did not treat the court’s command nor plaintiff’s claim with indifference.” While these cases involved the question of setting aside default judgments within a thirty-day period and not under section 72 as here, the allusions to the issue of excusable neglect in the defense of a case are addressed to the same equitable powers of the court.

Defendant has cited no case, and we know of none, where a defendant was granted relief under section 72 after ignoring the proceedings on his own initiative. In each case where the judgment had been set aside, the defendant had taken some action, albeit insufficient, in response to the summons. In the leading case of Ellman v. De Ruiter, 412 Ill 285, 106 NE2d 350 (1952), the defendant immediately forwarded the summons to the law firm that was to represent him, and the firm’s docket clerk inadvertently showed a wrong return day, thereby allowing a default judgment to be entered. Later decisions have held that defendants may be guilty of only excusable neglect where they refer the summons to their attorneys or insurance carriers who in turn fail to defend. Boyle v. Veterans Hauling Line, (supra); Busser v. Noble, (supra).

True, some of the decisions tend to suggest that the defendant must show diligence in pursuing his rights after entry of the judgment in question, but a closer reading of these opinions reveals that in such cases the defendants were found not to have been inexcusably negligent in permitting the judgment in the first place, and in none of these cases had the defendant ignored the summons without consulting with either his attorney or insurer. In Skivington v. Lehman, 36 Ill App2d 479, 484, 184 NE2d 785 (1962), for example, the defendant had been represented in the proceedings by an attorney who withdrew and was replaced by another attorney who was seriously ill. When no one appeared on behalf of the defendant at the trial, plaintiff withdrew his jury demand without notice and received an ex parte judgment. It was only after the court held that the defendant should have been given notice of the waived jury demand that the defendant’s post-judgment conduct was examined. Likewise, in Currie v. Sollinger, 89 Ill App2d 408, 231 NE2d 683 (Abst. 1967), the defendant had filed an appearance and was represented by counsel. The judgment was entered on a date when defendant’s counsel had reason to believe that only a preliminary motion was before the court. This court found that defendant “had no duty to anticipate” that the judgment would be entered on that date, and then examined defendant’s diligence in pursuing relief under section 72.

A plaintiff who does not notify a defendant of a default judgment stands more vulnerable to a section 72 motion. Decisions have characterized the plaintiff’s failure to notify the defendant of the judgment as “casting a cloud” on the proceedings. See, e. g., Gary Acceptance Corp. v. Napilillo, 86 Ill App2d 257, 230 NE2d 73 (1967); Jansma Transport, Inc. v. Torino Baking Co., 27 Ill App2d 347, 354-355, 169 NE2d 829 (1960).

However, in each of the cases where the judgment was set aside, the defendant had done something when he learned of the suit against him, and his conduct, while ineffective, was excusable and, under the circumstances, reasonable. In the Napilillo case the defendants contacted their attorney soon after receipt of the summons, and they followed his advice to ignore the proceedings inasmuch as plaintiff’s claim had already been discharged in bankruptcy. In Jansma it was held that the service of process on the defendant was improper, and his failure to defend was reasonable inasmuch as he did not even know of the suit until after the default was entered.

Defendant here asks this court to excuse his conduct prior to the judgment, and hold that he acted reasonably under the circumstances. This we cannot do. The defendant is untrained in the law, and had no right to conclude, as a matter of law, that he was immune from plaintiff’s claim by virtue of the pending bankruptcy proceeding. To hold otherwise would be to give license to all future defendants to make a preliminary self-determination as to their legal rights, and then ignore the proceedings if they believe the complaint is without merit. Obviously the proper administration of justice could not condone such a practice.

What we have said here should not be construed as precedent for automatically excusing the defendant who merely notifies his attorney or insurer, and then does nothing further. While the circumstances of the case may in fact justify such action, there have been prior decisions where relief was not granted in such cases. In Chmielewski v. Marich, 2 Ill2d 568, 576-577, 119 NE2d 247 (1954), it was held that the defendant’s reliance on the insurance brokers is not a ground for relieving him of the consequence of the brokers’ apparent failure to fulfill their undertaking. See also Till v. Kara, 22 Ill App2d 502, 510, 161 NE2d 363 (1959).

We are not here called upon to delineate hypothetically the circumstances under which a defendant’s neglect will be excused where he relies on the advice or representation of his attorney or insurer. As noted above, such cases must depend on their particular facts, and to try to establish a general rule would create dangerous precedent. What we are deciding, however, is that the defendant who ignores the summons and takes no action whatsoever, in reliance on nothing more than his own evaluation of his legal rights, is guilty of inexcusable negligence as contemplated by section 72 and the cases decided thereunder.

In view of the conclusion we have reached regarding the defendant’s negligence, a consideration of whether defendant had a meritorious defense is unnecessary. We note in passing, however, and the defendant concedes, that discharge in bankruptcy is an affirmative defense which must be pleaded, and therefore plaintiff’s complaint was not defective or untenable on its face. Furthermore, at the time the defendant received the summons he had not yet been adjudged a bankrupt nor had his debts been discharged. Accordingly, the defendant’s determination as to his legal rights was, at the time made and acted upon, erroneous.

Although the point is not raised in defendant’s appeal, we find no defect in the judgment by reason of its having been entered on an unverified complaint without proofs. Section 50(4) of the Civil Practice Act (Ill Rev Stats, c 110, § 50 (4)) provides:

“Judgment by default or a decree pro confesso may be entered for want of an appearance, or for failure to plead, but the court may in either case, require proof of the allegations of the pleadings upon which relief is sought.” (Emphasis added.)

The use of the word “may” instead of “shall,” in our opinion, makes the requirement of proof in such a case discretionary with the trial court. The record gives no indication that this discretion was abused in these proceedings.

For the reasons stated, it is the decision of this court to affirm the trial court’s denial of defendant’s motion to vacate the default judgment.

Affirmed.

DAVIS and MORAN, JJ., concur.


author: JUSTICE ABRAHAMSON.

text:
    Betty Jane Melvin, Plaintiff-Appellee, v. Oliver V. Melvin, Defendant-Appellant, and Vera L. Oltmanns, Defendant.
    Gen. No. 68-9.
    Second District.
    May 9, 1968.
    Reid, Ochsenschlager, Murphy & Hupp, of Aurora (Lambert 0chsenschlager, of counsel), for appellants; Miller, Gorham, Wescott & Adams, of Chicago, and Williams, McCarthy, Kinley & Rudy, of Rockford, for appellee.
   Opinion by

JUSTICE ABRAHAMSON.

Not to be published in full.